HON’BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.3795 of 2009 ORDER: The order and decree passed in E.P.No. 82 of 2008 in O.S.No. 173 of 2005, dated 24.02.2009, by the Principal Senior Civil Judge, Srikakulam, is under challenge in this revision petition. An application was filed by the decree holder seeking arrest and detention of the judgment debtor in civil prison and, thereby, recover the decretal debt. Before the Court below, the decree holder examined himself as PW.1. The judgment debtor also examined himself as RW.1 and was cross-examined. The Court below observed that the decree holder had failed to place on record any evidence to substantiate that the judgment debtor was having sufficient means; when the decree holder was unable to show that the judgment debtor was having the capacity to raise necessary funds to discharge the debt, his prayer could not be accepted; even if the judgment debtor was having property, in case he had no means to raise funds or even if funds could be raised there were other pressing claims, no dishonest intention could be attributed to the judgment debtor; and, on that account, he could not be confined in jail. The Court below further observed that the decree holder had admitted that he had got the immovable properties of the judgment debtor attached; the present means of the judgment debtor was not established; having attached the immovable property of the judgment debtor it was open to the decree holder to file a petition for sale of the immovable property but instead the decree holder had sought recourse to have the judgment debtor arrested; and, since the judgment debtor was unable to raise funds and discharge his debt, the action of the decree holder could not be appreciated. The Court below further observed that the decree holder could not embark upon arresting the judgment debtor when the other procedure such as sale of property had not been exhausted; there was no convincing material to show that either the judgment debtor was able to discharge the debt at once or had any means; and having concluded that arrest of the judgment debtor could not be ordered, the application, as filed, was dismissed. Before this Court, Sri K.Sai Rama Murthy, Learned Counsel for the petitioner-decree holder, places reliance on the judgment of the Supreme Court in Shyam Singh v. Collector, District, Hamirpur, U.P.[1] and of this Court in Guvvala Sudhakara Reddy v. Katamreddy Venugopala Reddy[2] in support of his contention that it was open to the decree holder to seek arrest of the judgment debtor by his detention in civil prison, or by attachment and sale of property, or by both; and it was not necessary that the other remedies to recover the amount should be exhausted before an application could be filed seeking arrest of the judgment debtor. Sri K.S.Gopala Krishnan, Learned Counsel for the respondent-judgment debtor, would place reliance on the judgment of the Supreme Court in Jolly George Varghese vs. The Bank of Cochin[3] in support of his contention that arrest of the judgment debtor is a remedy of the last resort, and where the judgment debtor had no financial means to pay the amount, his arrest in Civil prison could be sought for. In Shyam Singh1, the Supreme Court observed thus: “……….From time to time this question has been examined in connection with Section 51 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’). Section 51 of the Code provides that, subject to such conditions and limitations as may be prescribed, on application of the decree-holder the Court may order execution of the decree by different modes mentioned in the said section including— “(a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; and (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;” It has been said the difficulties of a litigant “begin when he has obtained a decree”. It is a matter of common knowledge that far too many obstacles are placed in the way of a decree-holder who seeks to execute his decree against the property of the judgment-debtor. Perhaps because of that there is no statutory provision against a number of execution proceedings continuing concurrently. Section 51 of the Code gives an option to the creditor, of enforcing the decree either against the person or the property of the debtor; and nowhere it has been laid down that execution against the person of the debtor shall not be allowed unless and until the decree-holder has exhausted his remedy against the property. Order 21, Rule 30 of the Code provides that “every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both……” In Guvvala Sudhakara Reddy2, this Court observed thus: “…….I see no force in the contention of the learned Counsel for the revision petitioner that since respondent is claiming that revision petitioner has immovable properties, he should first exhaust his remedies against immovable properties only, but cannot seek his arrest, inasmuch as arrest and detention is one of the several modes of execution available to a decree-holder as per Sec. 51 CPC. So, it is for the decree holder to choose the mode of execution of his decree. It is no part of the duty of the executing Court to lay down or prescribe the mode of execution to be followed by the decree holder. In fact, in respect of decrees relating to recovery of money Rule 30 of Order 21 CPC gives the liberty to the decree holder to execute the decree either by seeking his detention in civil prison or by attachment and sale of his property 'or by both'. It is no doubt true that Rule 21 of Order 21 CPC empowers the executing Court to refuse simultaneous execution of a decree by two modes, but that is different from the decree holder's right to execute a decree for recovery of money in a particular mode. In fact, a full bench of Hyderabad High Court in Venkatappa and others v. Lakshmikant Rao4 held that it is for the decree holder to decide how he should execute his decree for payment of money and that the Court cannot compel him to adopt a particular mode of execution. In A. K. Subrahmanian Chettiar v. A. Ponnuswamy Chettiar5 it is held that if a decree-holder prays for arrest of the judgment-debtor, the court cannot, except as provided by the proviso to Section 51 CPC, compel the decree-holder to proceed against the property, or to accept the payment in instalments, and has to follow the procedure prescribed under Order 21 Rule 40 CPC. Since Pothireddi Laxman Rao (1 supra), relied on by the learned counsel for the revision petitioner, was decided without taking into consideration Rule 30 of Order 21 CPC and the full bench decision of the Hyderabad High Court in Venkatappa4 and the ratio in A. K. Subrahmanian Chettiar5 that decision is of no help in deciding this case, because, CPC itself empowers the decree holder to choose the mode of execution to be adopted by him. Therefore neither the judgment debtor nor the Court can direct the decree holder to execute the decree obtained by him in a particular mode. In view of the above I am unable to agree with the view taken in V. Ganesa Nadar v. K.Chellathai Ammal6 that a judgment debtor, if he possesses immovable property, cannot be arrested and detained as the decree holder can proceed against his immovable property………” It is evident from the aforesaid judgment that it is not for the Court to direct that the decree holder should execute the decree obtained by him in a particular manner and it is open to the decree holder to have the decree executed by detention of the judgment debtor in Civil prison, or by the attachment and sale of his property, or by both. In Jolly George Varghese3, the Supreme Court relied on Article 11 of the Covenant to hold that recovery of debts by the procedure of putting one in prison was violative of Article 21 unless there was minimal proof of his wilful failure to pay inspite of his sufficient means, and absence of more terribly pressing claims on his means etc. It is only in case the decree holder is not in a position to discharge the debt, and his failure to discharge the debt is wilful inspite of his having sufficient means, can his arrest be resorted to. In the present case, the judgment debtor in cross- examination admitted that he had two residential houses in Amadalavalasa; in the upstair portion, a R.M.S. resided on monthly rent of Rs.2,200/-; one Sri Duppala Syamala Rao was running a shop in one portion of the house; one Sundha Fancy Stores was also an occupant in a portion of the house; his son was prosecuting Engineering at Tekkali and his daughter the Intermediate course at Guntur; he used to sell medicines worth Rs.3,000/- to Rs.3,500/- per day in his medical shop attached to the clinic of a doctor; and accounts were being maintained for purchase and sale of medicines. While contending that the judgment debtor had let out a portion of the building free of rent to Sri Duppala Syamala Rao, the judgment debtor admitted that he had not filed any documentary evidence to show that Sri Duppala Syamala Rao to whom he had contended to have let out a portion of the premises free of rent had lent him (judgment debtor) Rs.1.00 lakh. While contending that he had paid Rs.1.00 lakh to Smt Yenni Kalavathi, the judgment debtor stated that he was indebted to Smt Yenni Kalavathi and, therefore, had paid the amount. It is evident from the admission of the judgment debtor that the petitioner-decree holder has discharged the burden of showing that the judgment debtor had the means. Whether the said means are sufficient to meet his minimal requirements; whether he had let out a portion of his house free of rent; whether the sum of Rs.1.00 lakh which he claimed to have paid to Smt Yenni Kalavathi was in discharge of his debt etc. are all matters for the judgment debtor to establish. The Court below has neither examined the evidence on record, nor has it recorded any finding that the judgment debtor has no means to discharge the debt. The conclusion of the Court below that the burden is on the decree holder to establish that the judgment debtor had the means to discharge his debt is erroneous and, in any event, the inability of the judgment debtor to repay the debt due has not been held by the Court below to be as a result of his lacking the means to pay the said amount. The Court below erred in holding that the arrest of the judgment debtor could be resorted to only if the other mode of attachment and sale of the said property had been exhausted. The said finding of the Court below is not only contrary to the statutory provisions but also runs foul of the judgment of the Supreme Court in Shyam Singh1 and of this Court in Guvvala Sudhakara Reddy2. The law laid down in Jolly George Varghese3 would only apply if a finding is recorded, on the evidence on record, that the judgment debtor is penniless or that his resources are just adequate to provide for his minimal requirements. In such circumstances, I consider it appropriate to set aside the order of the Court below and remand the matter back for its consideration afresh. The Court below shall hear both parties afresh, and on the basis of the evidence on record, pass orders, in accordance with law, within a period of three months from the date of receipt of a copy of this order. The Civil Revision Petition is, accordingly, disposed of. No order as to costs. RAMESH RANGANATHAN,J Date:01.06.2010 usd [1] 1993(1) SCC 693 [2] 2006(2) ALT 632 [3] AIR 1980 SC 470 4 AIR 1956 Hyderabad 7 (FB) 5 AIR 1957 Madras 6 AIR 1989 Madras 8