M. Seetharama Murti, J.

1. This civil revision petition under Section 115 of the Code of Civil Procedure, 1908 ('the Code' for short) by the petitioner/decree holder ('DHr' for brevity) is directed against the order dated 01.10.2010 of the learned District Judge, Chittoor made in EP. No. 26 of 2007 in OS. No. 31 of 1999 filed under Order XXI Rules 37 and 38 of the Code requesting to commit the judgment debtor/respondent ('JDr' for brevity) to civil prison for realisation of the decree debt.

2. The relevant facts for consideration, in brief, are as follows:--'The DHr having obtained a decree against the JDr for recovery of money in a sum of Rs. 3,40,000/- with future interest at 12% per annum from 09.05.1997 till the date of realisation and costs had filed the execution petition under Order XXI Rules 37 and 38 of the Code for realisation of the said decree debt and sought arrest and detention of the JDr in the civil prison. In support of the request in the execution petition, the DHr had also filed a proof affidavit. The JDr had filed a counter and resisted the execution petition. During the course of enquiry, the DHr and a supporting witness were examined as PWs. 1 and 2 and exhibits P1 to P3 (A1 to A3) were marked on the side of the DHr. The JDr was examined as RW1 and exhibits B1 to B5 were marked on his side. On merits, the learned District Judge had dismissed the EP. Therefore, the DHr is before this court.

3. I have heard the submissions of the learned counsel for the revision petitioner/decree holder. Though the respondent/judgment debtor is served with a notice, none appeared on his behalf. I have perused the material record.

4. Now the point for determination is:

"'Whether the DHr had made out valid and sufficient grounds for ordering the execution of the decree by arrest and detention of the JDr in the civil prison as per the procedure established by law? And, if so, whether the impugned order is liable to be set aside?"

5. POINT:

5. (a) The introductory facts are already stated supra, in detail. Order XXI of the Code contemplates the execution of a decree by ordering arrest of the judgment debtor and Section 51 of the Code lays down that the Court may, on the application of the decree holder, order execution of the decree inter alia by ordering arrest and detention of the judgment debtor in prison where arrest and detention is permissible. The proviso to the said section states that where the decree is for 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 and unless the court, for reasons to be recorded in writing, is satisfied among other things, that the judgment debtor is or has had since the date of decree the means to pay the amount of the decree or some substantial part thereof and had refused or neglected to pay the same. In an execution petition filed for arrest and detention of the judgment debtor in a civil prison, the initial onus of proof will be on the decree holder to establish that the JDr has got sufficient means to pay the amount of the decree or some substantial part thereof but has wilfully refused or neglected to pay the same with the object or effect of obstructing or delaying the execution of the decree.

5. (b) Coming to the case on hand, in the affidavit filed in support of the execution petition, the decree holder had pleaded to the following effect:-"The JDr is a Doctor. He is doing private practice. He owns a nursing home under the name and style of 'Srilatha Nursing Home' opposite to Venkateswara Talkies, Vellore road, Chittoor. He is getting a monthly income of Rs. 50,000/-. He had leased out a portion of the building (Lahta Nursing home building) on rent and is getting rents in a sum of Rs. 50,000/- per month. The JDr is owning fertile land of an extent of Ac. 3.00 cents at Keenatampalle in Yadamari mandal. He is cultivating the lands by raising sugarcane,