THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1753 of 2010 ORDER : 1. This Civil Revision Petition is directed against the order dated 08.04.2010 in E.P. No.500 of 2007 in O.S. No.124 of 2005 on the file of the Principal Junior Civil Judge, Anantapur, whereunder and whereby the trial court ordered issuance of arrest warrant against the petitioner/J.Dr. on payment of batta. 2. Under Section 51 and Order XXI Rule 37 C.P.C., in order to order arrest of the judgment debtor, the decree holder must prove not only that the judgment debtor has means to pay the decreetal amount, but also that he is intentionally or wantonly evading to pay the same. If these two aspects are proved, the judgment debtor can be sent to civil prison, of course, on payment of batta by the decree holder. 3. The suit was decreed exparte on 18.4.2007. Thereafter, the respondent/D.Hr. filed present Execution Petition for realization of the decreetal amount. In the Execution Petition, P.W.1 was examined who stated that the judgment debtor is getting income from lands at P.Narayanapuram, apart from that, he has a residential building in Anantapur, which was let out, and he is getting Rs.2,000/- per month from it. He also stated that though the judgment debtor has sufficient means to pay the decreetal amount, he was purposefully evading to pay the amount. The evidence of P.W.1 remained unchallenged. From the above evidence, both the aforesaid aspects have been satisfied, and so, the trial Court rightly ordered arrest of the judgment debtor. 4. The learned counsel for the petitioner contended that no opportunity was afforded to the petitioner and that though advocate for the petitioner appeared, exparte decree was passed, and that after paying costs, he filed an application under Order IX Rule 13 C.P.C. to set aside the exparte order and without taking up the said petition, the impugned order has been passed. In support of his contention, the learned counsel relied on an unreported decision dated 11.09.2009 in C.R.P. No.2487 of 2009, wherein it is held thus: “Having regard to the admitted fact that the suit was decreed exparte on 18.8.2005 and the petitioner’s application under Order 9 Rule 13 of C.P.C. to set aside the exparte decree is still pending, I am of the opinion that the Court below ought not to have proceeded with the Execution Proceedings without passing appropriate orders on merits on the application filed by the Revision Petitioner for setting aside the exparte order.” In the facts and circumstances of the said case, this court held as stated above. It cannot be taken as a ratio of law laid down that in all the circumstances, when the application filed to set aside exparte decree is pending, execution proceedings cannot be proceeded with. There is no impediment under the Code of Civil Procedure, 1908 to proceed with the execution proceedings so long as the decree is not set aside. Therefore, the trial court rightly passed the impugned order and there are no grounds to interfere with the same. 5. The Civil Revision Petition is devoid of merit and is, accordingly, dismissed. No costs. --------------------- (K.C.Bhanu, J.) 26.11.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1753 of 2010 26.11.2010 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1753 of 2010 26.11.2010 Between: K.Kesava Reddy …Petitioner And S.Niranjan Babu …Respondent