ORDER :

U. Durga Prasad Rao, J.

1. The challenge in the C.R.P. at the instance of the decree holder is to the order dated 22.10.2018 in EP No. 54 of 2017 in OS No. 274 of 2016 passed by the learned Principal Junior Civil Judge, Rajamahendravaram dismissing the petition filed by him under Order XXI Rule 37 CPC seeking the Court to issue arrest warrant against the judgment debtors 3 and 4 and commit them to civil prison for realization of the amount.

2. The factual matrix of the case is thus:

The decree holder filed OS No. 274 of 2016 against the judgment debtors/defendants 1 to 4 for recovery of Rs. 55,520/- on the strength of a promissory note and the defendants remained ex parte and said suit was ultimately decreed in favour of the plaintiff on 20.7.2016. Thereupon the D.Hr filed EP No. 54 of 2017 with prayer to issue notice under Order XXI Rule 37 CPC to the judgment debtors 3 and 4 to comply the decree directions and on their failure to commit them to civil prison. In the affidavit filed in support of E.P., he stated that the judgment debtors 2 to 4 are eking livelihood by doing works and getting salary of Rs. 25,000/- per month each and inspite of having sufficient means and capacity to discharge the decretal debt in one lumpsum, they intentionally avoided to do so. The docket order in aforesaid E.P., a certified copy of which is filed herewith, shows that upon receiving notice J.Drs 3 and 4 appeared in person and also through their Counsel. The matter underwent several adjournments for filing their counter and ultimately on 22.6.2018 Counsel for J.Drs reported no counter. Hence, the execution Court posted the matter to 17.7.2018 for appearance of J.Drs 3 and 4, but they remained absent and hence, the Court set them ex parte and posted the matter for evidence of D.Hr to prove the means of J.Drs to 10.8.2018. It appears the D.Hr requested the Court to issue arrest warrant against the J.Drs 3 and 4 in terms of Rule 37(2) CPC for they failed to appear in obedience to the order of the Court. However, the Court refused to issue arrest warrant on the ground that no material was produced by the D.Hr to show that the J.Drs were working and getting any income and except mere pleading of the D.Hr there was no other material on record showing that the J.Drs were having income and thus, the D.Hr failed to establish the means of the J.Drs to pay the decree debt. On those observations, the E.P. was dismissed on 22.10.2018.

Hence, the civil revision petition.

3. Notice in C.R.P. was directed against the judgment debtors 3 and 4, but there was no representation. Hence, heard the learned Counsel for revision petitioner/D.Hr.

4. Severely fulminating the order under revision learned Counsel for the petitioner would submit that when the J.Drs 3 and 4 failed to appear before the Court on 17.7.2018, the Court, instead of setting them ex parte ought to have issued arrest warrant in terms of Order XXI Rule 37(2) CPC pursuant to the request made by the D.Hr to secure their presence before the Court for conducting means enquiry under Order XXI Rule 40 CPC. Learned Counsel would vehemently argue that such enquiry under Rule 40 has to be conducted in the presence of the judgment debtors and an opportunity also should be accorded to them and the said object can be achieved only by securing the presence of judgment debtors by way of arrest. Instead, the Court dismissed the E.P. itself on erroneous observation that the D.Hr failed to prove the means of judgment debtors. Since the enquiry was not conducted and D.Hr has not adduced evidence, the question of D.Hr failing to prove the means of judgment debtors does not arise. He thus prayed to allow the C.R.P.

5. The arguments advanced by the learned Counsel for petitioner raise an important question of law as to the procedure to be followed by the execution Court in conducting the means enquiry to resolve whether or not the judgment debtor should be committed to civil prison for committing breach of the decree pas