IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.1325 OF 2010 Between: A. Ramanjaneyulu Reddy .....PETITIONER AND R. Rajagopala Setty and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.1325 OF 2010 ORDER: This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”), is directed against the order, dated 19.02.2010, in E.P.No.16 of 2007 in S.C.No.51 of 2005, on the file of the Senior Civil Judge, Kadiri, whereunder and whereby, the petition, filed under Order XXI Rules 37 and 38 C.P.C., for arrest and detention of the petitioner/judgment debtor No.2 in civil prison for realization of E.P. amount, was allowed directing the petitioner to pay the decreetal amount in full as claimed in the execution petition within one month, failing which warrant follows for his arrest and detention on 22.03.2010. 2. Learned counsel for the petitioner contended that because the firm is having properties, respondent No.1 herein/decree holder can as well proceed against the properties of the petitioner and therefore, the order of arrest is unsustainable and hence, he prays to set aside the impugned order. 3. There is no specific bar under C.P.C. particularly under Order XXI C.P.C., to execute the decree in the first instance, the decree holder has to proceed against the properties of the judgment debtor for realization of decreetal amount. The decree holder can choose or opt any one of the modes as provided under law to recover the decreetal amount. The arrest of judgment debtor is one of the modes prescribed under C.P.C. to recover the decreetal amount. But, to invoke Order XXI Rule 37 C.P.C., two requirements have to be fulfilled by the decree holder. Firstly, the judgment debtor has means to pay the decreetal amount and secondly, the judgment debtor is wantonly and willfully avoiding to pay the decreetal amount. If these two requirements are satisfied, the arrest of the judgment debtor can be made. The test, therefore, is whether the judgment debtor is unwilling to pay in spite of his means to pay. 4. The petitioner/judgment debtor No.2 was ordered to be arrested because he was having properties and wantonly and willfully avoiding to pay the decreetal amount. The evidence of PW.1 would clearly go to show that the petitioner entered into compromise with respondent No.1 along with other judgment debtors and in pursuance of the compromise, all the judgment debtors agreed to pay an amount of Rs.3,000/- for full satisfaction of the decree within one week from the date of decree, in default respondent No.1/decree holder can execute the decree. But, they committed default in payment of the amount. From the evidence of PW.1, it is clear that the petitioner is having land to an extent of Ac.4-00 and is getting more than Rs.5,00,000/- per annum. Of course, that evidence has been denied by the petitioner/judgment debtor No.2. But, the petitioner, who examined himself as RW.1, has not given any reasons about the non-payment of the decreetal amount, which is a very meager amount. Therefore, from the evidence of PW.1 it can safely be said that the petitioner is willfully avoiding to pay the decreetal amount, though he has sufficient means to discharge the decreetal amount. Furthermore, it is a decree passed in terms of the compromise that has been effected between respondent No.1/decree holder and the petitioner/judgment debtor No.2 and other judgment debtors. Therefore, in all fairness, the petitioner ought to have paid the decreetal amount. Hence, there are absolutely no grounds to interfere with the order under challenge. However, the order of the executing Court is kept under abeyance for a period of three months from today to enable the petitioner/judgment debtor No.2 to pay the decreetal amount together with interest and costs. If the petitioner fails to pay the decreetal amount within three months from today, the order of the executing Court shall be given effect. 5. With the above observation, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J February 07, 2011 MD THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.1325 OF 2010 February 07, 2011