B. K. MEHTA, J. ( 1 ) THIS is an appeal under sec. 47 of the Civil Procedure Code by the appellant who was original judgment debtor in Regular Civil Suit No. 27 of 1964 on the file of the Civil Judge (J. D) Rajkot against the judgment and order of the District Judge Jamnagar in Regular Civil Appeal No. 100 of 1971 confirming the order of the Civil Judge (J. D.) Kalawad in Regular Execution Application No. 34 of 1970 directing that the appellant herein be committed to the civil prison for not satisfying the decree of which the execution was sought for by the respondents firm who are the judgment creditors. ( 2 ) THE only question that arises in this appeal is whether the order of the learned District Judge confirming the order of the trial court directing that the appellant be committed to the civil prison for non-satisfaction of the decree passed in Regular Civil Suit No. 27 of 1964 is a legal and a proper order. The question arises in the following circumstances ( 3 ) THE judgment creditors who are respondents firm before me obtained a decree against the appellant in Regular Civil Suit No. 27 of 1964 in the (Court of Civil Judge (J. D.)) Rajkot for a sum of Rs. 2232. 76 paise on February 1 1965 It appears that on 27th January 1966 the judgment creditors applied for execution of the said decree and an amount of Rs. 400. 00 was realised from the judgment debtor. It appears that on 27 January 1966 the application for execution of the decree was there fore withdrawn It further appears that as the judgment creditors could no realise the balance of the decretal amount they applied for execution of the decree by their application No. 34 of 1970 somewhere in July 1970 for recovery of Rs. 1959. 00. Both the aforesaid execution applications made in the Court of Civil Judge (J. D.) Kalawad where the landed property of the judgment debtor is situated. In the execution No. 34 of 1970 the judgment-creditors prayed under sec. 54 of the Civil Procedure Code for execution of the decree by attachment and sale of the agricultural land belonging to the judgment debtor and also by arrest and detention of the judgment debtor in civil prison under sec. 55 of the said Code. In the execution No. 34 of 1970 the judgment-creditors prayed under sec. 54 of the Civil Procedure Code for execution of the decree by attachment and sale of the agricultural land belonging to the judgment debtor and also by arrest and detention of the judgment debtor in civil prison under sec. 55 of the said Code. The learned Civil Judge issued a notice under Order 21 Rule 37 calling upon the judgment debtor to appear before the Court and to show cause why he should not be committed to the civil prison. The judgment debtor in pursuance to the said notice appeared before the court and filed his written statement contending inter alia that nothing remained due under the aforesaid decree as an amount of Rs. 1900. 00 was paid for which a receipt was passed in his favour by the judgment creditors and the judgment creditors agreed to forgo the remaining amount of Rs. 59/. On these contentions the learned Civil Judge raised only one issue viz. whether the opponent proves that he has paid Rs. 1900. 00 to the applicant on 20-1-69 ?. As a result thereof the onus to prove this issue was on the judgment debtor who was required to go into box first and to prove his case. The judgment creditor went in box thereafter and gave evidence in respect of the alleged payment of Rs. 1900. 00 and the agreement to forgo the balance amount of Rs. 59. 00 as claimed by the judgment debtor. On consideration of this evidence the learned Civil Judge found that the judgment debtor had failed to prove that he had paid Ks. 1900/- to the judgment creditors or that the judgment creditors agreed to forgo the remaining amount Or Rs. 59. 00 as claimed by the judgment debtor. On these findings the learned Civil Judge ordered that the judgment debtor be kept in civil prison for a period of six months because he was satisfied that the judgment debtor had sufficient means to pay the decretal amount. The judgment debtors therefore went in appeal before the District Court of Jamnagar. The learned District Judge after consideration of the rival contentions of the parties confirmed the order of the trial court. The judgment debtors therefore went in appeal before the District Court of Jamnagar. The learned District Judge after consideration of the rival contentions of the parties confirmed the order of the trial court. It was specifically urged before the learned District Judge that the procedure prescribed under Order 21 Rule 40 was not complied with and the trial court as well as the District Court approached the problem only from the angle of the alleged payment and did not satisfy as to whether the grounds required under clause (b) of the proviso to sec. 51 of the Civil Procedure Code were satisfied or not. The learned District Judge has also held that the judgment debtor has failed to prove the alleged payment of Rs 1900/_ or the fact of the agreement between the parties as to forgo of the remaining amount of Rs 59/ -. The learned District Judge therefore confirmed the order of the trial court. It is this order of the learned District Judge which is the subject matter of this appeal before this court. ( 4 ) IN my opinion both the courts below have not complied with the procedure as prescribed under Order 21 Rule 40 of the Code of Civil Procedure. It is Do doubt true that the judgment debtor has in his written statement raised a plea of the payment of the decretal amount. It is equally true that the judgment debtor has in the cross examination on behalf of the judgment creditors admitted that he has property consisting of agricultural land from which he had an income of about Rs. 7 0 in the last year preceding the year in which he was deposing before the trial court. He has also admitted that he had the means to pay the decretal amount. However in my opinion the plea in the written statement or the admission of the judgment debtor in his evidence would no be sufficient for the court to come to the conclusion that the grounds mentioned in clause (b) of the proviso to sec. 51 of the Civil Procedure Code have been satisfied. It should be noted that the judgment debtor ma or may not file his written statement in pursuance of the notice issued under Order 21 Rule 37 of the Code. 51 of the Civil Procedure Code have been satisfied. It should be noted that the judgment debtor ma or may not file his written statement in pursuance of the notice issued under Order 21 Rule 37 of the Code. It is for the judgment creditors to lead their evidence in support of their application for execution wherein the might have prayed for the process of the court for execution of the decree by arrest and detention of the judgment debtor in the civil prison and by their evidence they have to make out the grounds as prescribed in clause (b) of the proviso to sec. 51 of the Code that the judgment debtor has or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and that he refuses or neglects or has refused or neglected to pay the same. On plain reading of Rule 40 or Order 21 it is clear to me that it is only when the decree holder has by prima facie evidence adduced before the executing court in support of his application that there is a case for issue of process of the court for execution of a decree by arrest and detention of the judgment debtor in civil prison that the judgment debtor has to be given an opportunity to show cause why he should not be committed to civil prison. If the judgment creditors have led no evidence in this behalf and the executing court examined the judgment debtor either of his own motion or on the plea raised by him in his written statement and if the fact was elicited in the cross examination of the judgment debtor that he bad the means to pay the decretal amount the order passed by the executing court on the basis of this admission for the arrest and detention of the judgment debtor and for committing him to the civil prison would not be justified. Mr. Suresh M. Shah the learned advocate appearing on behalf of the appellant has relied on the decision of Allahabad High Court in the matter of Harpal Singh and others v. Lala Hira Lal reported in A. I. R. 1955 Allahabad 402. Mr. Suresh M. Shah the learned advocate appearing on behalf of the appellant has relied on the decision of Allahabad High Court in the matter of Harpal Singh and others v. Lala Hira Lal reported in A. I. R. 1955 Allahabad 402. The relevant head note on which reliance has been placed reads as underwhere the decree holder had led no evidence and the Judge did not appear to have called upon the decree holder to lead evidence as required by Order 21 Rule 40 but examined the judgment debtor either of his own motion or at the desire of the judgment debtor and it was in cross examination of the judgment debtor that the fact was elicited that he had sold away some of his property and had not paid anything to the decree holder and the decree holder did not pursue the matter further and did not ask the judgment debtor as to why he did not pay the decree holder or what he did with that money or whether that money or substantial part of it was still with him and the judgment debtor was not given an opportunity either by the decree holder in cross examination or by the court after this damaging circumstance bad come on the record to show as to why in view of that circumstance he should not be committed to civil prison the order for the arrest of the judgment debtor was wrong. IN my opinion therefore both the courts below were in error in passing the order directing the appellant to be committed to civil prison. ( 5 ) THE result is that this appeal should be allowed and the judgment and order of the learned District Judge confirming the order of the trial court committing the appellant to the civil prison should be set aside and the matter is to be sent back to the court of Civil Judge (J. D.) Kalawad for raising proper issues about the existence of the grounds alleged by the judgment creditors that the judgment debtor has means to pay the amount or some substantial part thereof and has refused or neglected to pay the same and that after giving the judgment creditors and judgment debtor an opportunity to lead evidence in. support or rebuttal thereof the learned Civil Judge is directed to dispose off the matter afresh according to correct principles of law. support or rebuttal thereof the learned Civil Judge is directed to dispose off the matter afresh according to correct principles of law. It is further directed that the learned Civil Judge concerned should dispose of this matter latest by 30th of June 1972 The judgment creditors can pursue the remedy for execution of decree by attachment and sale of property of the judgment debtor. In the facts and circumstances of this case there should be no order as to costs. The Civil Application No. 395 of 1972 for stay and execution of the order appealed from is disposed of in view of the order made in this appeal. .