THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.4004 OF 2008 DATED: 25-02-2011 Between: Mogili Subrahmanyam. .... PETITIONER And Chirlamcherla Mallikarjuna Rao. .... RESPONDENT ORDER: This Civil Revision Petition is directed against the order, dated 17.07.2008, in E.P.No.39 of 2007 in O.S.No.41 of 2002 on the file of the learned Senior Civil Judge, Markapur, wherein the said E.P. filed by the petitioner herein seeking arrest and detention of the respondent-judgment-debtor under Order XXI Rule 37 CPC, was dismissed. 2. Heard learned counsel for the petitioner-decree- holder. None appears for the respondent-judgment- debtor. Perused the record. 3. It is not disputed that the petitioner filed the suit against the respondent for recovery of certain amount due and the suit was decreed on 29.08.2005 for a sum of Rs.3,60,273/-besides suit costs. It is also not disputed that the house property belonging to the respondent- judgment-debtor is attached before judgment. According to the decree-holder, the judgment-debtor is doing private job and earning Rs.5500/- per month and he is also working as President of Sri Shiridi Saibaba SC, BC and OC Slate Workers’ Society Limited and getting salary of Rs.1500/- per month besides owning a house worth Rs.15,00,000/-. 4. The main contention of the learned counsel for the respondent-judgment-debtor is that inasmuch as the house property of the judgment-debtor is under attachment, petitioner-decree-holder can as well proceed against the house property instead of seeking arrest and detention of the judgment-debtor. In that connection, he relied upon a decision reported in PANDUGAYALA SUBBARAYUDU v. KATTAMURI SREE KRISHNA[1], wherein this Court while dealing with a case, where there was no enquiry regarding the existence of the house property and where the judgment-debtor was only a coolie, observed that in case the immovable property possessed by the judgment-debtor is not yielding any income to enable the judgment-debtor to pay the decretal amount, probably it is for the decree-holder to take recourse to other modes of recovery in execution of decree instead of insisting on arrest of the judgment- debtor and in the absence of such enquiry, it cannot be concluded that the judgment-debtor has sufficient means to pay the decretal amount. 5. The decision cited is not applicable to the facts of the present case for the simple reason that in the present case, admittedly, the judgment-debtor is owning a house, which is under attachment. The decree-holder has adduced evidence to show that the judgment-debtor is employed and is earning around Rs.3000/- per month. The only question which arises for consideration is whether the decree-holder is entitled to proceed against the person of the judgment-debtor when the property of the judgment-debtor is under attachment. The Code of Civil Procedure provides for different modes of execution of the decree. 6. Section 51 of CPC states that the Court may, on application of the decree-holder, order execution of the decree among other things by attachment and sale or by sale without attachment of any property or by arrest and detention in prison. The procedure to be followed for execution of the decree in the chosen mode is prescribed under Order XXI CPC. 7. Order XXI CPC does not restrict the choice of the decree-holder as to the mode of execution of the decree adopted by him. There is no legal prohibition that unless a particular mode of execution is exhausted the other mode cannot be resorted to. It is open to the decree-holder to choose the mode of execution of the decree and the judgment-debtor cannot dictate to the decree-holder to choose any particular mode of execution at the first instance. There is also no legal requirement that when the property is under attachment, the decree-holder shall proceed against the property alone and he shall not proceed against the person of the judgment-debtor. Notwithstanding the attachment before judgment of the property, when once the decree-holder is able to establish that the judgment-debtor has got sufficient means to pay but he is evading or neglecting to pay the decree debt, the decree-holder is certainly entitled to seek execution of the decree by proceeding against the person of the judgment- debtor under Order XXI Rules 37 and 38 CPC. 8. The contention of the learned counsel for the respondent-judgment-debtor that since the property is under attachment, the decree-holder shall not be permitted to proceed against the person of the judgment- debtor is untenable. In the present case, the judgment- debtor is admittedly owning a house property. The evidence on record shows that he is employed and is earning Rs.3000/- per month. The decree is passed on 29.08.2005. The judgment-debtor has not made any attempt to pay any amount of the decree, which only shows the lack of bona fides on his part. 9. Under those circumstances, the impugned order, dismissing the E.P. on the ground that since the property of the judgment-debtor is under attachment the decree- holder cannot proceed against the person of the judgment-debtor under Order XXI Rule 37 CPC, is held unsustainable and the same is accordingly set aside. Consequently, E.P.No.39 of 2007 stands restored to file and the Execution Court shall proceed further in accordance with law. 10. Accordingly, Civil Revision Petition is allowed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 25th February, 2011. Tsy [1] 2008 (4) ALD 454