ORDER:

Assailing the order, dated 17.04.2023, passed in E.P.No.115 of 2022 in O.S.No.499 of 2016 on the file of the learned Principal Senior Civil Judge, Kakinada, whereby the petition filed under Order 21, Rule 11, Rule 37 and Rule 38 and Section 55 CPC, for issuance of warrant of arrest against the Judgment Debtor (J.Dr.) and to detain him in civil prison for realisation of the decretal amount, was allowed and warrant of arrest was issued under Rule 38 against the J.Dr. on payment of process, the present Civil Revision Petition has been preferred by the J.Dr.

2) Heard learned counsel for the petitioner and learned counsel for the respondent.

3) The parties will be referred to as they are arrayed in the Execution Petition filed seeking issuance of warrant of arrest and detention of the J.Dr. in the civil prison.

4) The decree holder (D.Hr.) has filed a Suit for recovery of the suit amount on the foot of a promissory note against the J.Dr. The said Suit was decreed against the J.Dr. on 06.02.2017. No appeal was preferred against the said judgment and decree. Therefore, the said judgment became final. As the J.Dr. failed to pay the decretal amount, the D.Hr. has earlier filed a petition for attachment of his salary as the J.Dr. is an employee. The said petition was allowed and attachment of salary was ordered. For about 24 months, the salary of the J.Dr. at the rate of Rs.2,300/- per month was attached. The D.Hr. has withdrawn the said amount by way of filing cheque petitions. During the said 24 months period, only a sum of Rs.1,42,600/- was realised towards decretal amount out of the total decretal amount of Rs.7,50,000/-.

5) As there is a bar for further attachment of the salary after the period of 24 months, till the cooling period of 12 months is completed after initial attachment of 24 months of salary, in order to realise the remaining part of the decretal amount, the D.Hr. has filed the petition under Order 21, Rule 37 and Rule 38 CPC for arrest of the J.Dr. and for his detention in civil prison to realise the decretal amount.

6) The said petition was allowed by the impugned order and the Executing Court ordered for issuance of warrant of arrest against the J.Dr. on payment of process.

7) Aggrieved thereby, the petitioner has filed this Civil Revision Petition questioning the legality and validity of the impugned order.

8) Learned counsel for the petitioner would seek to assail the impugned order on two grounds. It is contended that as the D.Hr. has already availed the remedy of attaching the salary of the J.Dr. and also realised a sum of Rs.1,42,600/- that he cannot again file this petition for arrest of the J.Dr. for realisation of the decretal amount. He would contend that eventhough cooling period of 12 months as prescribed under Section 60 CPC has to be completed for filing another petition for attachment of the salary, he has to wait till the said 12 months cooling period is completed and then seek attachment of the salary of the J.Dr. and having availed the said remedy of attachment of salary that he cannot now file a petition for arrest of the J.Dr. He would then contend that as can be seen from the language employed in Section 51 CPC, unless it is proved that having sufficient means to satisfy the decree that the J.Dr. is avoiding to pay the decretal amount that the arrest cannot be ordered and in the instant case, the D.Hr. failed to prove that J.Dr. got sufficient means to pay the decretal amount and thereby avoiding to pay the same. Therefore, he would contend that the impugned order is not sustainable under law and thereby prayed to set aside the impugned order and allow the Civil Revision Petition. In support of the said contention, he relied on the judgment of the Apex Court rendered in the case of Jolly George Varghese v. The Bank of Cochin1.

9) Repelling the said contentions, learned counsel for the respondent appearing for the D.Hr. would contend that as the attachment of the salary of the J.Dr. was ordered fo