IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY FOURTH[24TH ] DAY OF JUNE TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2220 of 2007 Between: Parupalli Babu … Petitioner/JDr And: Sri Venkateswara Enterprises, rep. by its Proprietor, Attuluru Venkata Rao … Respondent THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2220 of 2007 ORDER: This revision is directed against the order dated 20.04.2007 in E.P.No.30 of 2006 in SC No.8 of 2002 on the file of the Senior Civil Judge, Nandigama, wherein the said E.P. filed by the respondent-DHr under Order XXI Rule 37 CPC seeking arrest of the petitioner herein- JDr in execution of the decree, was allowed and warrant of arrest was issued against the JDr. 2. Heard the learned counsel for the petitioner-JDr. None appears for the respondent-DHr. Perused the record. 3. The respondent herein obtained a decree for recovery of Rs.6,479/- and costs. The petitioner-JDr did not discharge the said debt. The respondent seeks to execute the decree by way of arrest of the JDr. According to him, the JDr is having Ac.1.53 cents of land in R.S.No.5/1 of Lingalapadu village and getting income of Rs.20,000/- per annum and that he is also doing commission business and getting net income of Rs.30,000/- per annum but still he is evading to pay the amount, in spite of having sufficient means. The JDr filed a counter in that E.P. contending that he is only an agricultural coolie and he does not have any properties or business and he is unable to maintain his family from the meager income as a coolie. In para 4 of the impugned order, the trial Court observed that no evidence is adduced on either side in spite of several opportunities given to them. However, the executing Court proceeded to issue warrant of arrest against the JDr on the premise that the JDr did not place any material before the Court and therefore, it has to be believed that he has got means and evading to discharge the decretal amount. 4. Admittedly, the burden squarely lies on the DHr TO PROVE that the JDr has sufficient means to pay the decree debt, BUT in spite of it, the JDr is neglecting to pay the same. The DHr has not produced any oral or documentary evidence in support of his plea that the JDr is having Ac.1.53 cents of land and that he is also doing commission business. When the DHr himself has not discharged the burden lying on him, the executing Court clearly erred in recording a finding that the JDr has got means but he is evading to pay. It is only after satisfying FROM THE evidence that the JDr is evading to pay, in spite of having sufficient means, that the warrant of arrest under Order XXI Rule 37 CPC is to be issued. Thus the impugned order directing issuance of warrant of arrest against the JDr is based on no evidence at all and hence, the same is unsustainable and is liable to be set aside and is accordingly set aside. The matter is remitted back directing the executing Court to give an opportunity to both sides to adduce necessary evidence in support of their respective contentions and dispose of the matter afresh in accordance with law, within a period of three months from the date of receipt of copy of this order. 5. In the result, the civil revision petition is disposed of as stated abov. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 24.06.2010 bss