IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No. 54 OF 2009 BETWEEN: Guduri Kondala Rao …PETITIONER AND Dundi Ravindranath …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No. 54 OF 2009 O R D E R: The decree-holder in E.P.No.351 of 2007 in O.S.No.715 of 2006 on the file of the I Additional Junior Civil Judge, Bhimavaram, is the revision petition herein. 2. The application was filed by the decree holder under Order.XXI, Rule.37 of the Civil Procedure Code (for short, “CPC”) for the arrest of the judgment debtor consequent upon his failure to pay the decretal amount of Rs.1,00,790/-. 3. The judgment-debtor has taken a plea that he is an employee in Railway and he is suffering from ill-health and except the salary, he has no source of income and he has to incur medical expenses and there is alternative mode of recovering the decretal amount and ordering of the arrest is not proper and the execution petition may be dismissed. 4. The learned I Additional Junior Civil Judge, Bhimavaram, dismissed the execution petition finding that the decree-holder could not give proper reasons for non-filing of the application under Order.XXI, Rule 48 of CPC and as the arrest of the person is linked with personal liberty, it cannot be ordered and accordingly, the execution petition is dismissed. 5. The point that arises for consideration is whether the order of the learned I Additional Junior Civil Judge, Bhimavaram, is legal and sustainable? 6. The fact that the decree for recovery of money was obtained by the decree-holder is not in dispute. The further fact that the decree is not satisfied is also not in dispute. The mode of execution for realisation of the decretal amount is left to the decree-holder. Neither the judgment debtor nor the Court can direct a particular mode of execution. Further-more, when a person is sought to be arrested in execution of a decree, it does not amount to restraint of personal liberty. The only thing the Court has to consider is limitations provided under Section 55 of CPC read with Order XXI, Rule 37 of CPC before considering the arrest of the judgment debtor. Evidently, the lower Court has not applied its mind to any of the provisions under Order XXI, Rule 37 of CPC or Sec.55 of CPC, directing the decree-holder to file for execution under Order XXI, Rule 48 of CPC, dismissing the present execution petition is not proper. The lower Court has to conduct an enquiry and give a finding as to whether the judgment debtor has got means to pay the decretal amount and as to whether he is evading to pay the same to defeat the decree keeping in view of the provisions under Order XXI, Rule 37 and Section 55 of CPC shall pass the order. The order passed by the lower Court suffers from serious infirmity. 7. Therefore, the order of the lower Court is set aside and the matter is remanded to the lower Court for determination afresh about the liability of the arrest of the judgment debtor for realisation of the decretal amount. This will not bar the decree-holder from applying for attachment of the salary under Order XXI, Rule 48 of CPC. Accordingly, Civil Revision Petition is allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 15-04-2011. INL THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No. 54 OF 2009 15th April, 2011 INL