THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3929 of 2011 Date:01st December, 2011 Between: Kanchupati Welson S/o.Mathaiah ..... Petitioner AND Palleboina Shanthi W/o.Palleboina Nagaraju .....Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3929 of 2011 ORDER: The Civil Revision Petition is directed against the order, dated 22.04.2010, passed in E.P.No.22 of 2010 in O.S.No.15 of 2007 on the file of the Principal Junior Civil Judge, Kadapa, whereby and whereunder, the learned Junior Civil Judge allowed the petition filed under Order 21, Rules 37 and 38 CPC and directed to issue arrest warrant against the Judgment Debtor. 2. The petitioner is the judgment debtor in E.P.No.22 of 2010 in O.S.No.15 of 2007 on the file of the Principal Junior Civil Judge, Kadapa. The respondent is the decree holde3r. He filed E.P.No.22 of 2010 for realization of the decretal amount. He sought for detention of the petitioner/judgment debtor in civil prison since he failed to pay the decretal amount. The decree holder placed on record his affidavit before the executing Court. Basing on the affidavit averments, the executing Court came to the conclusion that the judgment debtor is having means and he is evading to pay the E.P. amount. With the said observation, ordered detention of the judgment debtor in civil prison by order, dated 22.04.2010. For beter appreciation, I may refer relevant portion of the order, dated 22.04.2010, which reads as hereunder: “4. Now the point for consideration is:- Whether this petition can be allowed or not? In the result and in view of the reasons stated in the petition affidavit, it is observed that the J.Dr. is having means and he is evading to pay the E.P. amount. In the above said circumstances, the J.Dr. can be sent to civil prison for realization of the E.P. amount. Accordingly, this petition is allowed and issue arrest warrant to the J.Dr. on payment of batta.” 3. Notice to the respondent came to be ordered on 19.09.2011. Despite service of notice, the respondent did not choose to enter appearance either in person or through a counsel. 4. Learned counsel appearing for the petitioner/judgment debtor submits that the petitioner/judgment debtor has no means to pay the decretal amount and he has even filed I.P.No.28 of 2010 on the file of the Senior Civil Judge, Kadapa, under Section 10 of the Provincial Insolvency Act, to adjudicate him as an insolvent. He would also submit that the respondent/decree holder has been shown as one of the respondents in the said I.P. 5. I have gone through the order impugned in the revision. The order does not reflect that the judgment debtor, having sufficient means, neglected to pay the decretal amount. It is also not indicated in the order that the judgment debtor since the date of the decree has transferred any of his properties. Section 51 of the Civil Procedure Code deals with the powers of the Court to enforce execution, which reads as hereunder: “Powers of Court to enforce execution. 51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison [for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section]; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied- (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Explanation:-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” The order impugned in the revision does not reflect that the judgment debtor is having sufficient means to pay the decretal amount. It is also not indicated in the order that after the decree, the judgment debtor has dishonestly transferred, concealed or removed any part of his properties. In that view of the matter, the order impugned in the revision cannot be sustained. 6. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 22.04.2010, passed in E.P.No.22 of 2010 in O.S.No.15 of 2007 on the file of the Principal Junior Civil Judge, Kadapa, and remanding the matter back to the executing Court to pass fresh orders, after hearing both the parties. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:01st December, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3929 of 2011 Date:01st December, 2011