THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 370 OF 2008 Date of Judgment: 29.6.2011 Between: B. Swamy Reddy …Petitioner and Golla Burujukati Venkataramudu ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 370 OF 2008 ORDER: Decree holder in EP No.238 of 2003 on the file of the Junior Civil Judge, at Dhone is aggrieved by the order of executing court disallowing his application for arrest and detention of the judgment debtor, as not maintainable, in view of decision of this Court reported in K.Vijayakumar Vs. N. Gururaja Rao [1]. The respondent has refused the notice and as such he is deemed to have been served as per the office endorsement. Heard learned counsel for the petitioner. The impugned order itself shows that the petitioner has obtained a decree for money and put the same for execution. He made an application seeking arrest and detention of the judgment debtor for deliberately not paying the money in terms of the decree. It was alleged that the judgment debtor has landed properties as well as regular income and he has means to pay the decretal amount at one stroke, but he had intentionally neglected to pay the same. The decree holder examined himself as P.W.1 and a witness as P.W.2 to substantiate the financial means of the judgment debtor. P.W.3 was also examined and Ex. X1-Adangal was marked to establish that the landed property stands in the name of judgment debtor which gives him sufficient returns. The executing court, however, dismissed the execution petition on the ground that the petitioner can as well seek attachment of properties of judgment debtor and his request for arrest and detention of judgment debtor without resorting to attachment of property is contrary to the decision of this Court reported in K.Vijayakumar Vs. N. Gururaja Rao (1st supra). It is to be remembered that the choice of decree holder to resort to any of the modes for execution of decree is categorically provided under Order 21, Rule 21 of the Civil Procedure Code which reads as under, “The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.” Rule 30 of Order 1 of the Civil Procedure Code is also relevant which reads as under, “Every decree for the payment of money, including a decree (or 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 both.” It is, therefore, clear from the above that it is entirely for the decree holder to take any of the modes for execution of the decree and not the manner in which the executing court understood the judgment of this Court in K.Vijayakumar Vs. N. Gururaja Rao (1st supra). In that particular decision, the judgment debtor was a bank officer, drawing a salary of Rs.15,000/- per month and he was himself willing to have his salary attached. This Court, therefore, found that it cannot be said that there was a deliberate refusal or negligence on the part of the judgment debtor and in that context, the arrest of the judgment debtor, sought for, was not approved. In the present case, the judgment debtor has not shown any such inclination nor did he give any offer and though he was represented by a counsel in the execution proceedings, neither he has examined himself nor produced any document. The legal position is also reiterated by this Court in a later decision reported in K.V. Ramakrishnaiah Vs. M. Sateesh Kumar Reddy [2]. In the circumstances, therefore, the impugned order cannot be sustained and is liable to be set aside. The revision petition is allowed and the impugned order is set aside. The Court below shall restore the execution petition to its file and proceed further in the matter by issuing notice to the judgment debtor calling upon him to satisfy the decree and on his failure to do so, it shall proceed further in accordance with law and pass appropriate orders. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 29.6.2011 KR [1] 2004 (2) L.S. 95 [2] 2006 (6) ALT 70