( 1 ) HEARD both sides.

( 2 ) THIS revision is directed against the order, dated 16-06-2004, passed in E. P. No. 496 of 2002 in O. S. No. 1228 of 2000, by the Principal Junior Civil Judge, Kurnool, ordering arrest, of the petitioner under order XXI Rules 37 and 38 of the Code of civil Procedure.

( 3 ) THE petitioner is Judgment Debtor no. 2, first respondent is Decree Holder and second respondent is Judgment Debtor no. 1 respectively before the Executing court.

( 4 ) FOR the sake of convenience, in this order, parties will be referred to as arrayed before the Executing Court.

( 5 ) THE facts, which are not in dispute, are that E. P. has been filed by the Decree holder against Judgment Debtor-2. Judgment Debtor-2 is the guarantor. Judgment Debtor-1 is the principal borrower. The Executing Court, having considered the material available on record, allowed the e. P. filed under Order XXI Rules 37 and 38 c. P. C. ordering arrest of JDR-2. Aggrieved by the same, the present civil revision petition is filed.

( 6 ) HAVING heard the learned counsel on either side, I have perused the impugned order as well the other material papers available on record.

( 7 ) A perusal of the record, in particular, the order of the Executing Court, discloses that the E. P. had been filed only against jdr-2 under Order XXI Rules 37 and 38 of c. P. C. Even column No. 10 of the execution petition also indicates that the present execution petition is filed only against the judgment Debtor No. 2.

( 8 ) SUB-RULE (1) of Rule 37 of Order XXI c. P. C. contemplates that the Court shall, instead of issuing a warrant for the arrest of the JDr, issue a notice calling upon him to appear before the Court on a date to be specified in the notice and show cause as to why he should not be committed to civil prison. Sub-rule (2) of Rule 37 of Order XXI c. P. C. postulates that where appearance is not made in obedience to the notice, the court shall, if the Decree Holder so requires, issue a warrant of arrest of the Judgment debtor, who was not present in the Court. Rule 40 of Order XXI C. P. C. contemplates the procedure that has to be followed by the Court when the Judgment debtor appears before the Court voluntarily in response to the notice, or is brought after arrest by way of compulsion.

( 9 ) A perusal of the counter-affidavit filed by the Judgment Debtor-2 in the execution petition discloses that he was prepared to discharge the decretal liability by paying a sum of Rs. 500/- per month in instalments, oh the ground that he is a petty employee drawing a meagre salary. When Judgment debtor No. 2, who is only a guarantor, comes-forward with such a plea, it cannot be held that there was any deliberate negligence on his part in discharging the decretal liability. In normal course, when a decree was obtained against the principal debtor and the guarantors, it is permissible under law for the Decree Holder to seek execution of the decree in different modes, as contemplated under Section 51 C. P. C. , which deals with the powers of the Court to enforce execution of the decree. Sub-rule (1) of Rule 40 of Order XXI c. P. C. postulates that an enquiry has to be conducted when the Judgment Debtor appears before the Court in response to the notice, issued under Rule 37, and a fresh opportunity shall have to be given to the judgment Debtor to show cause as to why he should not be committed to civil prison. Sub-rule (2) of Rule 40 of Order XXI c. P. C. postulates that pending conclusion of enquiry as contemplated under Sub-rule (1) of Rule 40 of Order XXI C. P. C. , the Court may, in its discretion, order detention of the judgment Debtor in the custody of an Officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. Sub-section (3) of Section 55 C. P. C. which deals with arrest and detention of judgment Debtor, contemplates that where a judgment debtor is arrested in execution of a decree for