L. NARASIMHA REDDY, J.

( 1 ) THE judgment-debtor in E:p. No. 44/99 is the petitioner in this revision.

( 2 ) THE petitioner filed O. S. No. 25 of 1991 on the file of the Senior Civil Judge, srikalahasthi, for recovery of certain amount from the respondent. The suit was dismissed with costs on 19-11-1996 and it became final. The respondent filed e. P. No. 44/99 under Order 21 Rule 11-A for arrest of the petitioner herein on the ground that though he possessed sufficient means, he did not deposit the costs awarded in the decree. The executing court ordered the arrest of the petitioner by order dated 31-1-2000. The petitioner challenges the same in this revision.

( 3 ) SRI C. V. Nagarguna Reddy, learned counsel for the petitioner submits that the order under revision is passed in utter disregard of the provisions of the Order 21 rules 37 and 40 and Section 55 of the C. P. C. and the same cannot be sustained in law. He submits that the executing court, having issued a notice under Order 21 Rule 37 (1), had chosen to proceed with the examination of the decree-holder i. e. the respondent herein, and passed an order directing the arrest. The procedure adopted by the executing court is not in conformity with rule 40.

( 4 ) SRI M. P. Chandramouli, learned counsel for the respondent, on the other hand, submits that the procedure contemplated under Rule 40 would apply only in cases where the judgment-debtor appears before the court in response to a notice issued under Order 21 Rule 37 (1) or to those who are arrested in pursuance of warrant issued under proviso to Rule 37 (1 ). Inasmuch as the petitioner did not respond to the notice issued under Rule 37 (1) and was later brought before the court only under Rule 37 (2), the examination of the respondent in the presence of the petitioner does not arise and that no exception can be taken to the order of the executing court.

( 5 ) THE record of the executing Court discloses that the respondent filed E. P. No. 44 of 1999 before the Executing Court on 27-9-1999. On 4-11-1999, the court ordered notice to the petitioner. On 12-11-1999 the court had set the petitioner ex parte on account of his non-appearance. Thereafter, it was posted for the evidence of the respondent herein. On 30-11-1999 the respondent was examined. The court recorded a finding that the petitioner herein is having sufficient means to pay the decretal amount and is avoiding to pay the same. Accordingly, the court issued warrant for arrest and production of the petitioner before it. The matter was directed to be listed on 1-2-2000. The same was advanced to 28-1-2000, obviously, because the petitioner was arrested and brought before the court on that day. The petitioner submitted a memo stating that he intends to file I. P. and sought for release. The same was rejected and his detention was continued. Subsequently, on 30-1-2000 he filed a memo stating that he is aged 75 years and is a chronic patient and sought for release. That plea was also rejected by the order of the court on 1-2-2000 stating that the memo was filed belatedly and the same has become infructuous.

( 6 ) TO verify as to whether the order passed by the executing court and the procedure adopted by it is in conformity with the one prescribed under the relevant rules, it is necessary to extract Rules 37 and 40 of Order 21 C. P. C. Rule 37. Discretionary power to permit judgment-debtor to show cause against detention in prison. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment- debtor who is liable to be arrested in pursuance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to the civil prison: provided that such notice shall not be necessary if the court is

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