ORDER : Venkateswarlu Nimmagadda, J. 1. The Civil Revision Petition is filed aggrieved by the Order dated 11.03.2024 passed in E.P.No.19 of 2023 in O.S.No.165 of 2021 on the file of court of Principal Junior Civil Judge, Bobbili, by issuing warrant against the petitioner herein under Order XXI Rules 37, 38 and Section 55 of the Code of Civil Procedure(CPC), 1908. 2. To refer the parties herein for discussion, the petitioner herein is the defendant in the suit and Respondent herein is the plaintiff in the suit. 3. The brief averments of the plaint are that the defendant is in need of money for family expenses, approached the plaintiff and borrowed an amount of Rs.6,00,000/- from the plaintiff on 10.04.2020 and executed a suit promissory note in favour of the plaintiff on an even day and agreed to repay the same with interest 24% per annum to the plaintiff or his order on demand. Subsequently, the defendant did not pay any amount towards the discharge of the suit promissory note debt. The plaintiff demanded the defendant so many times in person and through elders, to pay the said promissory note debt, while admitting his liability has been postponing the repayment on one pretext or other. Hence, the plaintiff filed suit for the recovery of an amount. The said suit was decreed in favour of the plaintiff on 29.11.2022 for an amount of Rs.8,04,800/- together with interest @ 12 % per annum from the date of suit till the date of decree. 4. Learned counsel for the petitioner submits that the learned Trial Court passed the impugned order in a cryptic manner without taking into account of the mandatory requirements in E.P.No.19 of 2023 under Order XXI Rule 37, Rule 106 of CPC and Section 55 of CPC. The express provisions have been given a go-bye, therefore the order cannot be sustained either on facts or in law. 5. The Executing Court ought to have seen that arresting of judgmentdebtor and sending him to civil prison is a matter of touching personal liberty and hence ought to have been cautious and shall have afforded a proper opportunity and conduct a necessary enquiry before making the order directing the petitioner to undergo civil imprisonment. 6. The learned trial Court failed to assign reasons as essentially and imperatively enunciated under Section 51 of C.P.C while ordering execution by arrest and detention. 6. The learned trial Court failed to assign reasons as essentially and imperatively enunciated under Section 51 of C.P.C while ordering execution by arrest and detention. Four specific factors have been delineated which have to be taken into consideration, before ordering Arrest of judgment-debtor i.e., (i) the judgment debtor is likely to abscond (ii) after the institution of the suit, he has dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (iii) that the judgment debtor has, or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or (iv) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. Therefore, from the scheme of section 51 of CPC, it is clear that when the court is satisfied that if atleast one of the conditions mentioned in clauses (a) to (c) of the proviso exists or is believed to be existing, by the Court, then only, the court would be justified in passing an order for the arrest and detention of the judgment debtor. Further, the proviso clearly states that, execution by detention in prison shall not be ordered unless, after giving judgment-debtor an opportunity of showing cause why he should not be committed to prison. 7. Learned counsel for the petitioner relied upon the ratio laid down by the Hon’ble Supreme Court in Jolly George Varghese and Another vs. The Bank of Cochin, MANU/SC/0014/1980: AIR 1980 SC 470 : 1980 (2) SCC 360 . 8. Learned counsel for the petitioner also relied upon the ratio laid down by this Court in SasanapuriSomeswara Rao vs. Shriram City Union finance Ltd. And others, MANU/AP/0215/2022: 2022(3) ALD 225 . 9. Learned counsel for the petitioner further submits that in view of the grounds and reasons as contended above, the decree and judgment dated 11.03.2024 passed in E.P.No.19 of 2023 in O.S.No.165 of 2021 on the file of Court of Principal Junior Civil Judge, Bobbili is liable to be set aside. 10. 9. Learned counsel for the petitioner further submits that in view of the grounds and reasons as contended above, the decree and judgment dated 11.03.2024 passed in E.P.No.19 of 2023 in O.S.No.165 of 2021 on the file of Court of Principal Junior Civil Judge, Bobbili is liable to be set aside. 10. Learned counsel for the Respondent filed a Vacate Stay petition / counter affidavit on behalf of the Respondent, wherein it is stated that the Petitioner did not pay a single paise, even though the decree was passed on 29.11.2022. The Respondent herein filed E.P. No.19 of 2023 on the file of Principal Junior Civil Judge, at Bobbili, against the Petitioner for recovery of decreed amount by way of arrest under Order XXI Rule 37, 38 C.P.C. The Petitioner filed his counter affidavit and on hearing both sides the Hon'ble E.P.Court allowed the petition on 11.03.2024 and ordered an arrest warrant against the petitioner herein to commit him to Civil prison for realization of the E.P. amount on payment of process. 11. It is further stated that the petitioner got sufficient means to discharge the decree debt, but, avoided payment of the debt. He is getting Rs.1,00,000/- per month towards salary and also he is having movable and immovable properties to the best of my knowledge. The Respondent demanded the petitioner so many times in person and through elders, to pay the said debt. Though he admitted his liability but he has been postponing the repayment on one pretext or the other. 12. It is further stated that the Petitioner in his written statement filed in the suit requested the Court below to decree the suit for Rs.3,00,000/-. Even then he did not evince any interest to pay such amount to the decree holder and only to create trouble to the Respondent, this petition is filed by the Petitioner though he borrowed money more than three years ago from the Respondent. This Respondent is unable to enjoy the fruits of the decree passed by the Court below. 13. Learned counsel for the Respondent relied upon the ratio rendered by the Hon’ble High Court of Judicature at Madras in A.K.Subramania Chettiar vs. A. Ponnuswamy Chettiar AIR 1957 Mad. This Respondent is unable to enjoy the fruits of the decree passed by the Court below. 13. Learned counsel for the Respondent relied upon the ratio rendered by the Hon’ble High Court of Judicature at Madras in A.K.Subramania Chettiar vs. A. Ponnuswamy Chettiar AIR 1957 Mad. 777 , wherein it is held as follows: “Simultaneous execution both against the property and person of the judgment-debtor is allowed under Order 21, Rule 30, C.P.C. But the Court has a discretion under Order 21, Rule, 21, C.P.C. to refuse simultaneous execution and to allow the decree holder to avail himself of only one mode of execution at a time. Where a decree-holder presses for arrest of the judgment debtor, the Court cannot, except as provided by the proviso to Section 51, C.P.C. compel the decree holder to proceed against his property or to accept payment by installments.” 14. Learned counsel for the Respondent also relied upon the ratio rendered by the Hon’ble High Court of Judicature at Madras in Ganesa Nadar vs. K. Chellathaiammal 1987 (100) LW 431, wherein it is held as follows: “It is open to the prope holder to file a petition for attachment and sale of the immovable property. The decree holder in this case has not taken recourse to those provisions. It is obvious that he is utilising the provisions of Order 21, Rule 38, C.P.C., merely as a lever to force payment without taking recourse to the proceedings for attachment and sale of the immovable property.” 15. The learned counsel for the Respondent / Decree Holder also relied upon the ratio rendered by this Court in Y. Sarathchandra vs. Lakshminarasimha Finances and Another, Dated 12th August, 2004., wherein it is held as follows: 11. A plain reading of the provisions contained in Subsection (3) of Section 55 C.P.C, and the procedure contemplated under Rules 37, 40 of Order XXI C.P.C. would indicate that compliance of the requirements of those provisions is mandatory in nature, inasmuch as those provisions relate to the rights guaranteed to a citizen under Article 21 of the Constitution of India. 12. In Kalindindi Rama Raju v. Vijaya Bank. 2002 Suppl. 12. In Kalindindi Rama Raju v. Vijaya Bank. 2002 Suppl. (2) ALD 300 = 2001 (2) An WR 184 (AP), a learned Judge of this Court (P.S. Narayana, J.), referring to the judgment of the Apex Court in Jolly George Varghese v. Bank of Cochin, the decision of the Karnataka High Court in K, KarunakarShety v. Syndicate Bank.: and the decision of this Court in Veïnanarayana v Sakku Bai, 1994 (4) ALT 422, laid down the following guidelines to be followed by the executing Court while ordering arrest of the judgment-debtor in execution proceedings: (4) Courts may also examine whether other modes of recovery are available to the decree-holder and witty to order arrest for recovery of the amount and whether the judgment debtors are wilfully and intentionally neglecting to discharge the decree debts and Courts may examine the relevant circumstances also in this regard; 13. In K. Vijayakumar v. N. GururajaRaecisfollowing the aforesaid guidelines and also the decision of a Division Bensidering the of Class(b) Bank also 1978 (2) APLJ 335, while considering the provisions of Clause (b) of provi of Indiaction 55 of the Civil Procedure Code, took the view that ordering of arrest of judgment-debtor is not proper when other alternative mode of recovery of decretal amount is available to the decree-holder. One of the guidelines formulated by the learned Judge in Kalindindi Rama Raju's case (supra) is that the Executing. Court must explore other possibilities also and should necessarily record a finding with reasoning that there was deliberate negligence on the part of the judgment debtor in discharging the decretal amount. 16. Learned counsel for the Respondent further submits that the judgment debtor/ defendant having admitted for payment of Rs.3,00,000/- through his letter of statement, But, even after receipt of a copy of decree and after lapse of one year till date of this order, the same was not paid to the Respondent / decree-holder. Having working as Assistant Engineer (AE) in the BSNL department, the judgment debtor / petitioner herein did not choose to pay the said decree amount is nothing but deliberately not discharging / his obligation in his part. As such the order passed by the court below dated 11.03.2024 cannot be interfered. 17. Heard learned counsel for the Revision petitioner and learned counsel for the Respondent and perused the material placed on record. As such the order passed by the court below dated 11.03.2024 cannot be interfered. 17. Heard learned counsel for the Revision petitioner and learned counsel for the Respondent and perused the material placed on record. It is observed that the issues in hand are as follows: (i). Whether order of the Court below passed under Order XXI Rule 38 of CPC is justifiable by de-horsing the other modes of the execution as contemplated under order XXI? (ii). Whether the order passed by the Court below under Order XXI Rule 38 of CPC is sustainable or not? 18. It appears that the Court below governed by the provisions of CPC and orders and rules made there under. For more understanding, the relevant portion of the CPC extracted hereunder: Section 51. (ii). Whether the order passed by the Court below under Order XXI Rule 38 of CPC is sustainable or not? 18. It appears that the Court below governed by the provisions of CPC and orders and rules made there under. For more understanding, the relevant portion of the CPC extracted hereunder: Section 51. Powers of Court to enforce execution.— Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (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]; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Explanation. —In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree. ORDER XXI 11A. Explanation. —In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree. ORDER XXI 11A. Application for arrest to state grounds.— Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for. 12. Application for attachment of movable property not in judgment-debtor’s possession.— Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. 13. Application for attachment of immovable property to contain certain particulars.— Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot— (a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and (b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same. 19. On perusal of the provisions as mentioned above which requires that before a person is arrested and detained in person pursuant to an application or execution, the Court must be satisfied with the grounds as enumerated and as extracted above. 20. In the case in hand, the decree holder without taking any steps for execution of the decree and judgment passed in O.S.No.165 of 2021, dated 29.11.2022 as extracted above. But, seeking detention of the judgment debtor as under Order XXI Rule 37 of CPC is nothing but dehorsing the other modes of execution as contemplated. 20. In the case in hand, the decree holder without taking any steps for execution of the decree and judgment passed in O.S.No.165 of 2021, dated 29.11.2022 as extracted above. But, seeking detention of the judgment debtor as under Order XXI Rule 37 of CPC is nothing but dehorsing the other modes of execution as contemplated. The Court below without initiating the petitioner for realization of the amount and decree, having come to knowledge that the judgment debtor is a central Government employee and drawing the salary of an amount of Rs.1,00,000/- per month and allowing the execution petition under Order XXI Rule 37 of CPC is contrary to the law and also settled proposition of law as laid down by the Hon’ble Apex Court as well this Court. 21. In Jolly George Varghese and Another vs. The Bank of Cochin (supra), the Hon’ble Supreme Court of India held as follows: The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised S.51 with the Covenant and the Constitution. 22. It was also held by the Hon’ble Supreme Court that even when it is pleaded that the Judgment Debtor is possessed of some immovable property, the burden lies on the Decree holder to show that the Judgment Debtor has the capacity to pay the decretal amount. 23. In Sasanapuri Someswara Rao vs. Shriram City Union finance Ltd. And others (supra), this Court held as follows: “Arrest and detention of a J.Dr.in civil prison in execution of a decree for payment of money is not a matter to be resorted to lightly. The scheme of Section 51, C.P.C. is to ensure that sufficient reasons exist for making an order of arrest and detention of a J.Dr. in civil prison in execution proceedings. Moreover, it is also evident that in every case of non-payment of decretal amount, a J. Dr. The scheme of Section 51, C.P.C. is to ensure that sufficient reasons exist for making an order of arrest and detention of a J.Dr. in civil prison in execution proceedings. Moreover, it is also evident that in every case of non-payment of decretal amount, a J. Dr. is not liable to be arrested and detained in civil prison unless the case falls within one of the clauses of the proviso to Section 51 C.P.C. To recover debts by the procedure of putting one in prison is flagrantly violative of Article 21 of the Constitution unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and willful neglect and refusal to pay the decree-debt." 24. As contended by the learned counsel for the petitioner, the Court below should have been directed the decree holder, he must have filed petition for attachment of property and any other modes of execution rather than file a petition for arrest is contrary to the settled principles of law and contrary to the ratio laid down by the Hon’ble Apex Court is valid and sustainable, in view of the settled proposition of law as stated supra. Accordingly, the issue No.1 was answered in favour of the petitioner herein. 25. It is further observed that even though the Court below is available with discretionary powers for allowing the modes of execution as just and reasonable but without resorting any other modes of execution, passing an order under Order XXI, Rule 38 is nothing but taking away the rights guaranteed under Article 21 of the constitution of India and also contrary to the facts in hand or to law as explained above. Hence the order of the Court below liable to be set aside. Accordingly, Issue No.2 answered against the Respondent herein and in favour of the petitioner. 26. Accordingly the Civil Revision Petition is allowed and the proceedings in the Order dated 11.03.2024 passed in E.P.No.19 of 2023 in O.S.No.165 of 2021 on the file of Court of Principal Junior Civil Judge, Bobbili is hereby set aside. 27. Further, the Execution Petition i.e.E.P.No.19 of 2023 is remanded for fresh consideration under Order XXI, Rules 12 and 13 of the CPC and other mode of execution as contemplated under the law. 27. Further, the Execution Petition i.e.E.P.No.19 of 2023 is remanded for fresh consideration under Order XXI, Rules 12 and 13 of the CPC and other mode of execution as contemplated under the law. Upon such modification of the Execution Petition by the Respondent herein, the Court below shall consider the same and pass appropriate orders in accordance with law. There shall be no order as to costs. 28. As a sequel miscellaneous application, pending, if any, shall also stand closed.