IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5058 OF 2000 Date:01.02.2010 Between:- Nellore Siva Prasada Rao ..Petitioner/Petitioner And P.Rajya Lakshmi and another .. Respondents/Respondents ORDER:- This Civil Revision Petition is directed against the docket order dated 14.09.2000 passed in E.P.No.79 of 2000 in O.S.No.855 of 1998 on the file of the III Additional Junior Civil Judge, Nellore wherein warrant of arrest against the petitioner/J.D.R was ordered to be issued. 2. Heard learned counsel for the revision petitioner/J.D.R. None appeared for respondent No.1/D.H.R though served with notice. Respondent No.2 stated to be not a necessary party. Perused the records. 3. Respondent No.1 herein obtained a money decree against the petitioner/J.D.R in O.S.No.855 of 1998 and filed E.P.No.79 of 2000 for recovery of sum of Rs.46,620/- due under the decree and costs by seeking arrest of petitioner/J.D.R and his detention in civil prison under Or.21 Rule 37 C.P.C. According to respondent No.1/D.H.R, the petitioner/J.D.R is employed in R.T.C and is getting salary of Rs.12,000/- per month and also owning a house in Balaji Nagar worth Rs.12,00,000/- and earning rents of Rs.8,000/- per month. Thus, according to respondent No.1/D.H.R, the petitioner/J.D.R is having sufficient means to pay the debt but is evading to discharge the decree debt i.e., evading to pay the same. The petitioner/J.D.R entered appearance through counsel but did not file counter and subsequently, he was set exparte. After examining the D.H.R as P.W.1, the executing court directed issuance of warrant of arrest against the petitioner/J.D.R by passing the cryptic docket order on 14.09.2000 as follows:- “D.H.R. present. D.H.R. examined as P.W.1. Issue the warrant of arrest of J.D.R. by 10-10-2000.” 4. The learned counsel for the petitioner/J.D.R would submit that the impugned order does not conform to the requirement of Section 51 C.P.C. as the same does not reflect the satisfaction of the executing court that the J.D.R was having means and inspite of having sufficient means, he is evading intentionally to pay the same. Section 51 C.P.C. states as follows: 51.Powers of Court to enforce execution-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.] 5. The proviso to Section 51 C.P.C. makes it clear that execution, by detention in prison, shall not be ordered unless the court, by recording the reasons, is satisfied interalia that the J.D.R has means to pay the amount of the decree or substantial part thereof and still he refuses or neglects to pay the same. The recording of satisfaction on the part of the executing court as to the existence of sufficient means for the J.D.R to discharge the decree debt, and his refusal or negligence to pay the same, and recording of reasons for such satisfaction are mandatory before the executing court can direct the detention of the J.D.R in civil prison. Even if the J.D.R remained exparte for any reason and did not contest the E.P., still the Court is not absolved of the obligation to record its satisfaction by giving necessary reasons there for in terms of proviso to Section 51 C.P.C. The impugned order, which is very cryptic, is bereft of any reasons and does not even reflect any satisfaction on the part of the Court to the effect that J.D.R was having sufficient means and still, he was either refusing or neglecting to pay the decree debt. The impugned order is, therefore, not in conformity with the provisions of Section 51 C.P.C and is, thus, vitiated. In the circumstances, it is held that the impugned order is unsustainable, and is liable to be set aside, and is accordingly, set aside. 6. In the result, the C.R.P. is allowed setting aside the impugned order. It is open to the executing court to pass a fresh order in the E.P., after giving liberty to the petitioner/J.D.R to file a counter and contest the matter. The matter is, accordingly, remanded to the executing court for fresh disposal, in accordance with law. 7. The C.R.P. is accordingly disposed of. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 01st February 2010 AMD