( 1 ) BEING aggrieved by the order dated 27-3-2006 passed by II ADJ, Indore in execution case No. 6/2003 whereby the application filed by the petitioner for review of the order dated 5-10-2005 was dismissed and the order of warrant was issued for compliance of the order dated 16-4-2005 whereby the petitioner was sent to jail for a period of one month, the present petition has been filed. ( 2 ) SHORT facts of the case are that petitioner is Proprietor of M/s. Shree Ganesh products. There was an award against the petitioner for a sum of Rs. 14 lacs along with interest @ 24% per annum with effect from 6-4-1996. It is submitted that execution petition was filed against the petitioner for realization of Rs. 36,89,375/- together with interest. During the pendency of the execution proceedings, the respondent filed an application under Order XXI, Rule 37, CPC. wherein it was prayed that since the petitioner is not paying the decreetal amount, therefore, petitioner be sent to civil jail. Vide order dated 16-4-2005, the executing Court directed that petitioner be sent to jail for a period of one month. Being aggrieved by the order dated 16-4-2005, an application for review was fiied which was allowed and vide order dated 4-10-2005, the order dated 16-4-2005 for sending the petitioner to jail was recalled and an opportunity was given to the petitioner for filing the reply of the application filed by the respondent under Order xxi, Rule 37, CPC. After hearing the parties, vide order dated 21-3-2006, learned court below allowed the application filed by the respondent under Order XXI, Rule 37, cpc and directed that petitioner be sent to jail in accordance with the order dated 16-4-2005. It was also directed for issuance of warrant against the petitioner. ( 3 ) LEARNED counsel for petitioner submits that the order passed by the Court below deserves to be set aside. It is submitted that order dated 16-4-2005 was already recalled vide order dated 4-10-2005, thus, in the eye of law, there was no order dated 16-4-2005, thereafter, the petitioner could not have been sent to jail in compliance with the order dated 16-4-2005. It is submitted that order dated 16-4-2005 was already recalled vide order dated 4-10-2005, thus, in the eye of law, there was no order dated 16-4-2005, thereafter, the petitioner could not have been sent to jail in compliance with the order dated 16-4-2005. Learned counsel further submits that petitioner has stated in his reply that there are number of decrees against the petitioner and it is not possible for the petitioner to clear the dues from his family property in which the petitioner is having only a share as property belongs to undivided joint Hindu family. Learned counsel further submits that for application of Order XXI, R. 37 the power has to be exercised by the Court under Section 51, CPC. It is submitted that as per the provisions of S. 51, CPC where that decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an 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 the 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 (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. ( 4 ) IT is also submitted that as per the explanation of S. 51, CPC in the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempted from attachment of the decree. ( 5 ) RELIANCE is placed on a decision in the matter of Jolly George Varghese v. Bank of cochin, AIR 1980 SC 470 wherein the Hon. Apex Court has observed as under : "the simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part or it. The provision emphasizes the need to establish not mere omission to pay but an attitude or refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and strained circumstances will play prominently. " ( 6 ) FURTHER reliance is placed on a decision in the matter of Subhash Chand Jain v. Bank of India, AIR 1999 MP 195 , wherein this Court has observed that order of detention in prison without holding enquiry as contemplated under Order XXI, Rule 40 (1)or without complying conditions laid down in proviso of Section 51 are unsustainable. Order XXI, Rule 40 (1) reads as under : procedure on a appearance of judgment-debtor in obedience to notice or after arrest- (1) when a judgment-debtor appears before this Court for 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. ( 7 ) IN the present case, undisputedly no enquiry has been conducted by the learned court below. On the contrary, vide order dated 27-3-2006, learned Court below has directed for compliance of the order dated 16-4-2005 while the order dated 16-4-2005 was recalled bv the learned Court below vide order dated 4-10-2005, therefore, there was no justification on the part of the learned court below on 27-3-2006 for issuance of warrant for compliance of the order dated 16-4-2005. In the facts and circumstances of the case, the petition is allowed. In the facts and circumstances of the case, the petition is allowed. The order dated 27-3-2006 passed by II ADJ, Iridore in execution case No. 6/03 is set aside with a direction to the petitioner to remain present before the executing Court on the next date of hearing. On that day, learned Court below shall direct the petitioner to furnish the security for his personsal presence on subsequent dates to the satisfaction of the court. Learned Court below shall proceed with the case in accordance with the provisions of law laid down in the Code of Civil procedure. Petition allowed. .