KARIA, J. ( 1 ) THIS Civil Revision Application is directed against the judgment and order dated 24/01/1989 passed by the learned Civil Judge (S. D.), gondal in Execution Application No. 44 of 1988. By the impugned order, the Executing Court directed to issue civil jail warrant against the petitioner for detaining him in civil prison. ( 2 ) THE respondents are the original plaintiffs who filed Civil Suit No. 99 of 1983 in the Court of Civil Judge (S. D.), Gondal for recovery of Rs. 9,000. 00 with interest and costs. Eventually, a decree came to be passed in the said suit for Rs. 9,000. 00 with interest and costs. Thereafter, the respondents filed Execution Application No. 44 of 1988 in the Court of the learned Civil Judge (S. D.), Gondal praying for execution of the decree as provided under Order 21 Rule 40 of the Civil Procedure Code by detaining judgment-debtor in civil prison. The Executing Court by its order dated 17/09/1988 ordered to issue notice to show cause why judgment-debtor should not be detained in civil prison. In response to the said notice, the petitioner, judgment-debtor appeared and prayed for time for filing the reply. The Executing Court granted time keeping the matter for hearing on 25/11/1988. It appears that the said date was got changed to 25/10/1988 at the instance of the learned advocate of the judgment-creditor. The petitioner or his Advocate who were not aware of such change in the date and as such the petitioner could not remain present on 25/10/1988. The Executing Court therefore, issued a warrant against the judgment-debtor for detaining him in civil prison by an order dated 25/10/1988. ( 3 ) THE petitioner judgment-debtor on coming to know about the issuance of such warrant submitted an application Exh. 10 requesting the Court to set aside the order on the ground that he was not aware of the date of hearing which was changed behind his back. The Executing Court permitted the petitioner judgment-debtor to file his objection and kept the matter on 24/01/1989 for hearing. ( 4 ) THE petitioner thereupon filed his reply, at Exh. 12 contending inter alia that his appeal against the impugned judgment and decree was pending and that he had no means to satisfy the decree. The Executing Court permitted the petitioner judgment-debtor to file his objection and kept the matter on 24/01/1989 for hearing. ( 4 ) THE petitioner thereupon filed his reply, at Exh. 12 contending inter alia that his appeal against the impugned judgment and decree was pending and that he had no means to satisfy the decree. The learned Judge of the Executing Court after hearing the parties, passed the order dated 24/01/1989 rejecting the objections raised by the petitioner judgment-debtor and further directing to issue jail warrant against the petitioner. It is against this judgment that the petitioner has approached this Court by way of present petition. ( 5 ) MR. Sanjay Doshi, learned Advocate appearing for the petitioner submitted that the impugned order detaining the judgment-debtor in civil prison is without jurisdiction as the impugned order is contrary to the provisions of Order XXI, Rule 40 of the Code of Civil Procedure read with Sec. 51 of the Code. Mr. Doshi further submitted that the learned judge of the Executing Court has misread the ratio laid down in the case of Patel Gordhan Kanjibhai v. Atlas Engineering Co. Works, reported in 1972 0 GLR 741 . Mr. Doshi also raised several other contentions. Before examining the contentions raised by Mr. Doshi, the relevant provisions relating to detaining the judgment-debtor in civil prison are required to be seen. Rule 40 of Order XXI of the Code of Civil Procedure inter alia provides that :" (I) When a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. (2) xxx xxx xxx (3) xxx xxx xxx"section 51 of the Civil Procedure Code provides about the powers of the Court to enforce execution of a decree which says as under "51. (2) xxx xxx xxx (3) xxx xxx xxx"section 51 of the Civil Procedure Code provides about the powers of the Court to enforce execution of a decree which says as under "51. Subject to such conditions and limitations as may be prescribed, the Court, may, on the application of the decree-holder order execution of the decree - (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison (for such period not exceeding the period specified in Sec. 58, where arrest and detention is permissible under that section); (d) by appointing a receiver, or (e) in such other manner as the nature of the relief granted may require proviso to Sec. 51 contemplates that when the decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgmentdebtor as opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied- (a) that the judgment-debtor with the object or effect of obstructing or delaying the execution of decree - (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) 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 refuses or neglects or has refused or neglected to pay the same, or (e) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. ( 6 ) AT this stage, Sec. 58 relating to detention and release be referred to. It provides as under : "58. ( 6 ) AT this stage, Sec. 58 relating to detention and release be referred to. It provides as under : "58. (1) Every person detained in the civil prison in execution of a decree shall be so detained - (a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and (b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks: provided that he shall be released from such detention before the expiration of"the said period of detention - (i) on the amount mentioned in the warrant for his detention being paid to the officer in charge for the civil prison, or (ii) on the decree against him being otherwise fully satisfied, or (iii) on the request of the person on whose application he has been so detained, or (iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance : provided also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court. (1a) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree doe? not exceed five hundred rupees. (2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison. " ( 7 ) IN the instant case, it is not in dispute that the decree sought to be executed is for the payment of money. When an application is made by the decree-holder for execution of the decree for payment of money by arresting/detention of the judgement-debtor in civil prison, the duty cast on the Executing Court is to be very careful in directing the detention of the judgment-debtor. With this view in mind, the legislature has provided certain guidelines and checks. When an application is made by the decree-holder for execution of the decree for payment of money by arresting/detention of the judgement-debtor in civil prison, the duty cast on the Executing Court is to be very careful in directing the detention of the judgment-debtor. With this view in mind, the legislature has provided certain guidelines and checks. The aforesaid proviso (b) of Sec. 51 requires that before passing an order as to detention of the judgment-debtor in prison, the Executing Court must be satisfied that the judgment-debtor has means to pay decretal amount or some substantial part thereof or refused or neglected to pay the same. A mere non-payment of the decretal amount does not necessarily amount to refusal or negligence to pay, but it requires some intention on the part of the judgment-debtor, which may give rise to an inference that he has refused or neglected to pay. Refusal would imply that a request was made to the judgment-debtor at the time when he had means to pay and yet he did not pay deliberately or declined to make any payment. Negligence to pay also connotes that when the judgment-debtor could have paid, he just omitted to pay due to his negligence or carelessness. In the absence of a clear finding that the judgment-debtor having means to pay has neglected or refused to pay the decretal amount the Court cannot direct his detention in civil prison. In the present case, there is no such finding recorded by the learned Judge of the Executing Court that the judgment-debtor had sufficient means and he had neglected or refused to make payment to the decree-holder. There is no evidence or material or evidence worth the name on record to show that the decree-holder proved the fact that the decree-debtor was capable of paying the decretal amount and yet he neglected or refused to pay the decretal amount or any part thereof. Thus, the impugned order is eminently improper and contrary to the provisions of Sec. 51 of the Civil Procedure Code. ( 8 ) RULE 11a of Order XXI provides that where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for. In the present case, in the application Exh. ( 8 ) RULE 11a of Order XXI provides that where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for. In the present case, in the application Exh. 1, there is no such ground made out nor it is supported by any affidavit. The learned Judge has, therefore, exercised his jurisdiction illegally in passing the impugned order of detaining the judgment-debtor in civil prison as there is no proper application as required by Rule 11a of Order XXI of the Civil Procedure Code. The decree-holder has not made any application accompanied by an affidavit stating grounds on which the arrest is applied for. Rule 11a requires that in the application itself, a clear statement should be made with respect to the grounds on which detention of the judgment-debtor is prayed for and a mere prayer to that effect would not be sufficient-When grounds are not clearly and fully stated in the execution application itself, then an affidavit has to be filed alongwith it stating said grounds. In absence of such an application with grounds accompanied by an affidavit, the impugned order would be bad in law. ( 9 ) MR. Doshi, placed reliance on the case of Patel Gordhan Kanjibhai v. Atlas Engineering Co. Works (supra ). It is held by this Court that a plea in the written statement or admission of the judgment-debtor in his evidence would not be sufficient for the Court to come to the conclusion that the grounds mentioned in clause (b) of the provisos of Sec. 51 of the Civil Procedure Code have been satisfied. On plain reading of Rule 40 of Order XXI, it is clear that it is only when a decree-holder has prima facie evidence adduced before the Executing Court in support of his application that there is a case for issue of process for Court for execution of a decree by arrest and detention of the judgment-debtor in civil prison, that, judgment-debtor has to be given an opportunity to show cause why he should not be committed to civil prison. If judgment-creditor has led no evidence in this behalf and the Executing Court examined the judgmentdebtor 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 had means to pay the decretal amount, the order passed by the Executing Court on the basis of this admission, of the arrest and detention of the judgment-debtor and for committing him to the civil prison would not be justified. The ratio laid down in the aforesaid case is applicable to the facts and circumstances of the present case inasmuch as there is no evidence adduced on behalf of the decree-holder to the effect that the judgment-debtor had sufficient means to pay decretal amount and on demand, the same was refused or neglected to make payment towards the decretal amount. In this view of the matter, the impugned order cannot be sustained. ( 10 ) THE impugned order doss not provide for the period for which the judgment-debtor is to be detained in civil prison. It is, therefore, contrary to the aforesaid Sec. 58 of the Civil Procedure Code. The learned judge of the Executing Court does not appear to have referred to the relevant rules relating to the detention of judgment-debtor on failure to make payment towards decretal amount in a decree for payment of money. ( 11 ) IN the above premises, the petition succeeds and is allowed. The impugned judgment committing the judgment-debtor to civil prison is quashed and set aside. Rule is accordingly made absolute with costs. .