HON’BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No.1312 of 2010 ORDER: The respondent has filed O.S. No.256 of 2006 in the Court of the Principal Senior Civil Judge, Nandyal against the petitioner for recovery of amount on the basis of a promissory note. The suit was decreed on 20.9.2007. Even after the decree became final, the petitioner did not pay the suit amount. Therefore, the respondent filed E.P. No.129 of 2008 under Rules 37 and 38 of Order 21 of C.P.C. He alleged that though the petitioner is possessed of adequate means, he did not pay the decreetal amount. The E.P. was opposed by the petitioner. He stated inter alia that an application under Order 38 Rule 5 was filed along with the suit and while resisting the order of attachment before judgment, he furnished security in the form of Savings Certificates to the tune of Rs.1,38,000/-. He contends that the respondent filed the application under Rules 37 and 38 of Order 21 of C.P.C., with a view to harass him. Herd Sri B.S. Reddy, learned counsel for the petitioner and Sri N. Srirama Murthy, learned counsel for the respondent. An application under Rules 37 and 38 of Order 21 of C.P.C. is filed almost as a last resort of a decree holder. In case, the decree holder is aware of the fact that the judgment debtor holds any properties, steps are taken for bringing the same to sale. In the instant case, the respondent filed an application under Order 38 Rule 5 with a prayer to attach all the immovable properties. After receiving the notice, the petitioner, at the initial stage of suit, furnished security to the satisfaction of the Court below by deposing Savings Certificates for a sum of Rs. 1,38,000/-. If the security remained with the Court, it was un-understandable as to how and why the respondent filed an application under Rules 37 and 38 of Order 21 of C.P.C. The Executing Court ought to have verified the record. The procedure adopted by the Executing Court cannot be countenanced. While issuing notice before admission, this Court granted stay on condition that the petitioner deposits half of the decreetal amount in four weeks. The condition is said to have been complied with. Hence, the C.R.P. is allowed and the order under revision is set aside subject to the condition that : (a) It shall be open to the respondent to withdraw the amount, which is deposited by the petitioner in compliance with the interim order passed by this Court. (b) The Executing Court shall permit the petitioner to encash the Savings Certificates said to have been deposited with the Court and the petitioner in turn shall deposit the balance of the decreetal amount within six weeks from today. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY,J DATE: 29th December, 2010 Note: Furnish c.c. in one week. B/o pnb