ORDER:

This Civil Revision Petition is filed by the petitioner/Decree Holder/Plaintiff under Section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned Senior Civil Judge, Vizianagaram, in E.P.No.76 of 2013 in O.S.No.234 of 2011, wherein and whereby the learned Judge dismissed the petition filed by Decree Holder seeking for arrest and detention of the respondent/Judgment Debtor in civil prison in realization of his decretal amount.

2. The case of the revision petitioner/Decree Holder in brief is that he filed suit against the respondent for recovery money due under Hami Patram, dated 06.08.2008 wherein Court passed a decree in his favour directing the respondent/Judgment Debtor to pay a sum of Rs.04,04,942/-with subsequent interest at 12% per annum on Rs.03,00,000/-from the date of filing of the suit till the date of decree and 6% per annum from the date of decree till the date of realization. He submits that after passing of the decree, he demanded the respondent/Judgment Debtor to pay decretal amount, which he refused though having sufficient means to discharge his debt. He prays to order for arrest and detention of respondent/Judgment Debtor in civil prison.

3. The respondent/Judgment Debtor filed counter before the executing Court, denying the averments in the affidavit of the Decree Holder. It is the contention of the respondent/Judgment Debtor that he is an agriculturist as there are no rains, the crops raised by him totally damaged due to that he could not get any yield from the crops thereby he sustained huge loss. It is also the contention of the respondent/Judgment Debtor that due to bad weather conditions, there is no yield from the crops and he is not having any income and means to pay the decretal amount. He prays to dismiss the petition.

4. On behalf of the petitioner, he himself examined as PW.1. Exs.A.1 to A.6 were marked. On behalf of the respondent, no oral and documentary evidence adduced before executing Court.

5. The learned Judge after hearing both sides, dismissed the petition filed by the petitioner/Decree Holder on the ground that the petitioner/Decree Holder ought to have filed Execution Petition against the respondent/Judgment Debtor not for arrest and detention in civil prison but for attachment and sale of either or both immovable and movable of the respondent/Judgment Debtor.

6. Aggrieved by the Orders passed by the executing Court, the present Civil Revision Petition is filed by the petitioner stating that Orders passed by the executing Court dismissing E.P.No.76 of 2013 is contrary to law and vitiate by material irregularities resulting failure of justice. He submits that Court below failed to appreciate the evidence available on record in proper perspective and erroneously dismissed the Execution Petition though Judgment Debtor not adduced any evidence rebutting the evidence adduced by him. He further submits that Court below failed to notice that Judgment Debtor is capable of paying decretal amount, who also made part payments during the pendency of execution proceedings and paid an amount of Rs.60,000/-which shows that Judgment Debtor is capable of paying the decretal amount. He prays to allow the revision petition and set aside the dismissal Orders passed by executing Court.

7. I have heard both sides.

8. It is the contention of the learned counsel for the revision petitioner that though the petitioner adduced oral and documentary evidence proving the means of respondent, for which, there is no rebuttal evidence on the part of the respondent, the Court below erroneously dismissed Execution Petition. He submits that the petitioner has got option to proceed against person and also against property of Judgment Debtor but Court cannot direct the Decree Holder to file Execution Petition in particular manner seeking particular relief.

9. It is also the contention of the learned counsel for the revision petitioner that Hon’ble Apex Court in Rahul S.Shah Versus Jinendra Kumar