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2013 DIGILAW 827 (AP)

Chalapathi Chit Fund (P) Ltd. , Ongole v. B. Rajasekhar

2013-09-27

C.V.NAGARJUNA REDDY

body2013
Judgment : 1. This civil revision petition arises out of order, dated 18.01.2011, in E.P.No.15 of 2008 in O.S.No.255 of 2006, on the file of the learned Senior Civil Judge, Kandukur. 2. The petitioner is the decree holder in the above-mentioned suit. It has filed E.P.No.15 of 2008 seeking arrest of respondent Nos.2 and 3 for non-payment of the EP amount. The lower Court dismissed the EP mainly on the ground that respondent Nos.2 and 3 being Government servants, the EP is not maintainable without taking recourse to recovery of the decreetal amount by proceeding against their salaries. 3. At the outset, it needs to be held that the legal position regarding the right of the decree holder to proceed against the judgment debtors for recovery of the decreetal amount is not properly understood by the lower Court. 4. Under Order XXI Rule 30 r/w Section 51 CPC, the decree holder can simultaneously seek execution of the decree by delivery of property specifically decreed; by attachment and sale or by sale without attachment of any property; 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 or by appointing a receiver (See Shyam Singh v. Collector, District Hamirpur,((1993) 1 SCC (Supp.) 693) Guvvala Sudhakara Reddy v. Katamreddy Venugopala Reddy ( 2006 (2) ALT 632 ) and K.Ravi Kumar Reddy and another v. M/s. ICDS Limited, rep.by its GPA Holder, H.K. Sreedhar).( 2012 (3) ALT 758 ) However, in Shyam Singh (1 supra), the Supreme Court while recognizing existence of the right in the decree holder to resort to simultaneous execution of the decree through more than one method provided under Section 51 of CPC r/w Order XXI Rule 30 CPC, however, equally recognized existence of discretion of the Court to order simultaneous execution of the decree. It is held that while exercising such discretion, the Court must act in a judicious manner. Thus, while there is no legal bar on the petitioner in seeking arrest of respondent Nos.2 and 3, the Court below has felt that when the said respondents are Government servants, the petitioner can recover the decreetal amount from their salaries instead of seeking their arrest. 5. Thus, while there is no legal bar on the petitioner in seeking arrest of respondent Nos.2 and 3, the Court below has felt that when the said respondents are Government servants, the petitioner can recover the decreetal amount from their salaries instead of seeking their arrest. 5. The lower Court instead of holding in absolute terms that the execution petition for arrest is not maintainable ought to have modulated its view by observing that on the facts of the case, recovery of decreetal amount through recovery of salary from respondent Nos.2 and 3 shall be an appropriate course. 6. Be that as it may, the Court below on the facts of the case has exercised its discretion in a judicious manner by holding that when respondent Nos.2 and 3 are the Government servants, it is not necessary to order their arrest and instead the petitioner can seek execution of the decree by recovering the decreetal amount from the salaries of respondent Nos.2 and 3. 7. Therefore, this Court has no reason to interfere with the order of the lower Court. However, liberty is given to the petitioner to file a fresh execution petition for attachment of the salaries of respondent Nos.2 and 3 for recovery of the decreetal amount from out of the salaries of respondent Nos.2 and 3. 8. The civil revision petition is accordingly dismissed, with liberty to the petitioner as indicated above.