M.V. Muralidaran, J.

1. The first judgment debtor/first defendant is the civil revision petitioner before this Court, challenging the order passed in E.P. No.126 of 2008 in O.S. No.242 of 2004, dated 08.03.2011, on the file of the District Munsif Court, Gudiyatham, Vellore District.

2. The case of the respondent/decree holder is that he has filed a suit against this petitioner along with the other defendants 2 to 5 in O.S.No.195 of 2002, on the file of the Sub-Court, Gudiyatham was subsequently transferred to the District Munsif Court, Gudiyatham, Vellore District and re-numbered as O.S. No.242 of 2004 and the decree was passed on 12.02.2007 directing the 1st defendant viz., the petitioner/1st judgment debtor to pay the plaintiff the suit amount of Rs.81,767/- with future interest at the rate of 24% per annum and directing the defendants 2 to 5 to pay the same from and out of the assets and estates of the deceased Subramaniam and for cost.

3. The respondent/decree holder has filed an execution petition in E.P.No.126 of 2008 in O.S.No.242 of 2004 before the District Munsif Court, Gudiyatham, Vellore District under Order 21, Rule 37 and 38 CPC for realize the amount, failing which the order to arrest of the first respondent to committed into civil prison.

4. For the said Execution Petition in E.P.No.126 of 2008, this petitioner/first judgment debtor has filed his counter stating that he does not admit any of the averments contained in the petition, this petitioner/first judgment debtor has also stated that he has not been served any copy of the Execution Petition and affidavit along with the petition and hence, he could not traverse those allegations and he reserves his right in filing the additional counter if any when the same is served.

5. This petitioner/first judgment debtor has also stated that he finding very difficult for his livelihood and hence he has no means to pay the decree amount, hence the reason stated in the execution petition for the arrest is not maintainable and hence he prayed the Execution Court to dismiss the Execution Petition.

6. Considering both side arguments, the learned District Munsif Court, Gudiyatham has allowed the Execution Petition and directed to issue warrant to this petitioner, who is the 1st judgment debtor to give explanation on or before 08.04.2011. Challenging the said order, the first petitioner/first judgment debtor has filed the present civil revision petition before this Court.

7. I heard Mr. V.M.G. Ramakkannan, learned counsel appearing for the petitioner and Mr. A.V. Ilango, learned counsel appearing for the 1st respondent.

8. Admittedly, the respondent/decree holder has filed the above E.P. against this petitioner/first judgment debtor under Order 21 Rules 37 and 38. Order 21 Rules 37 and 38 has stated as follows:

"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 on 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 satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

38. Warrant for arrest to direct judgment debtor to be brought up.- Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its ex