This Civil Revision Petition is filed against the order in E.P. No.87 of 2009, a petition under Order – XXI Rules -37 and 38 of the Code of Civil Procedure (for short ‘CPC’) for arrest and detention of the petitioner in civil prison, in O.S. No.290 of 2007 passed by the learned Principal Junior Civil Judge, Bapatla, whereby and whereunder the executive Court allowed the E.P. directing to issue warrant against the revision petitioner.

2. The revision petitioner herein is the judgment-debtor and the respondent is the decree-holder in the E.P. arising out of the suit referred supra for recovery of money.

3. For the sake of convenience, the parties are hereinafter referred to as they arrayed before the executive Court.

4. Heard the learned counsel on either side and perused the material available on record.

5. The point that arises for consideration in this revision is whether the executive Court has committed any error or infirmity in passing the impugned order?

6. The case of the decree-holder is that in spite of having sufficient means to pay the decreetal amount, the judgment-debtor is neglecting to discharge the same, as such, filed the impugned E.P. for his arrest and detention in civil prison.

7. A perusal of the impugned order shows that the decree-holder by examining himself as PW.1 produced sufficient material before the executive Court showing that the judgment-debtor has got sufficient means to pay the decreetal amount i.e. Acs.12-00 of land, a house and Ac.0-37 cents of agricultural land, but to rebut the same judgment-debtor neither entered the witness box nor adduced any evidence except contending that prior to filing of the E.P., he filed I.P. No.6 of 2009 on the file of Senior Civil Judge Court, Bapatla and as per the Provincial Insolvency Act, 1920 (for short “PI Act”) no proceedings including execution can be entertained by any Court without the prior permission of the Insolvency Court. However, Section 28(2) of the PI Act speaks that on making of an order of adjudication in the insolvency proceedings adjudicating the petitioner therein to be insolvent, the decree-holder is entitled to execute the decree only after obtaining the leave of the Insolvency Court. But, when there is no order of adjudication on the insolvency proceedings no such leave or permission is necessary to execute the decree. Hence, the executive Court holding that the in spite of having sufficient means to discharge the decreetal amount the judgment-debtor is intentionally avoiding to pay the same, ordered to issue warrant of arrest against him on payment of process by the decree-holder. Assailing the same, judgment-debtor preferred this revision.

8. Now the case of the judgment-debtor is that the executive Court erred in observing that as per Section 28(2) of the PI Act, unless there is an order of adjudication, the decree-holder is entitled to execute the decree and that though there is no material on record to show that in spite of having sufficient means to pay the debt he is intentionally avoiding to discharge the same, erroneously allowed the E.P. issuing warrant of arrest against him. It is also his case that according to sub-sections (3), (4) & (5) of Section 55 of CPC, the Court should inform the judgment-debtor that he may apply before declaring him as an insolvent and if he expresses his intention to be declared as insolvent, he should not be arrested, however in spite of brining to the notice of the executive Court about pendency of the insolvency proceedings, erroneously issued the warrant of arrest.

9. Since the contention of the judgment-debtor is that the executive Court erred in holding that unless there is an order of adjudication, under sub-section (2) of Section 28 of the PI Act, there is no necessity to obtain leave or permission of the Insolvency Court to initiate execution proceedings, the said provision is extracted hereunder for better appreciation which is as under:

“28. Effect of an order of adjudication:-

(