Dharam Chand Chaudhary, J. (oral). Challenge herein is to the order Annexure P-2, passed in an application registered as CMA No. 209/6 of 2010 filed in Execution Petition No.22/10 of 2009/08 by learned Civil Judge (Senior Division) Court No.1, Paonta Sahib whereby the application has been allowed and the petitioner, hereinafter referred to as the judgment debtor has been ordered to be detained in civil imprisonment for two months. 2. The legality and validity of the impugned order has been questioned in this petition on several grounds, however, mainly that the same is contrary to the provisions contained under Order 21 Rule 37 and also Section 51 of the Code of Civil Procedure. 3. Mr. Vishal Bindra, Advocate learned counsel representing the petitioner has urged that no doubt the order qua detention of the judgment debtor, if he fails to satisfy the decree, can always be passed under Order 21 Rule 37 of the Code of Civil Procedure, however, such power is controlled by the proviso to Section 51 of the Code of Civil Procedure and on finding that the petitioner despite having sufficient movable or immovable property and even was a man of means, failed to satisfy the decree. 4. Mr. Karan Singh Advocate, learned counsel representing the respondent, hereinafter referred to as the decree holder submits that in view of the own admission of the judgment debtor in reply to the application that by way of his earning he is arranging for his both ends meet and also the expenses required for his medical treatment itself demonstrates that he has source of income and as such could have discharged his liability under the decree sought to be executed. Also that prayer for adjournment of the execution petition for payment of the decretal amount can be taken to arrive at a conclusion that he was in a position to satisfy the decree, however, to the reasons best known to him failed to do so. It has, therefore, been urged that learned trial Court has rightly ordered his detention in Civil Imprisonment. 5. Before coming to the claims and counter claims as aforesaid, it is desirable to take note of the provisions contained under Order 21 Rule 37 of the Cove of Civil Procedure, which read as follows: “37. It has, therefore, been urged that learned trial Court has rightly ordered his detention in Civil Imprisonment. 5. Before coming to the claims and counter claims as aforesaid, it is desirable to take note of the provisions contained under Order 21 Rule 37 of the Cove of Civil Procedure, which read 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.” 6. The other provision relevant in the present controversy finds mentioned in Section 51 of the Code of Civil Procedure, the same also reads as follows: “51. (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.” 6. The other provision relevant in the present controversy finds mentioned in Section 51 of the Code of Civil Procedure, the same also reads as follows: “51. Powers of Court to enforce execution.- 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 section 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: Provided that, where the decree is for the 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. Explanation : 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 exempt from attachment in execution of the decree.” 7. Explanation : 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 exempt from attachment in execution of the decree.” 7. In terms of the provisions contained under Order 21 Rule 37 CPC supra the judgment debtor can be ordered to be detained in civil imprisonment in connection with the execution of decree on service of show cause notice to him and also affording him opportunity of being heard, if in the given facts and circumstances it is deemed fit and proper to do so. In a case of money decree, in terms of the proviso to Section 51 CPC, the detention of judgment debtor during execution proceedings can be ordered if the Court is satisfied that the judgment debtor with a view to obstruct or delay the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the Court or had concealed and removed any part of his property after institution of the suit or committed other act of bad faith in relation to his property or irrespective of having means to pay the decretal amount or substantial part thereof, he refused or neglected to pay the same. 8. Now coming to the case in hand, the application filed with a prayer to detain the judgment debtor in civil imprisonment in relation to the execution of the decree is consisting of one para, which reads as follows:- “That the JD No.1 is delaying the payments since then at one or the other pretext and is not making the payments of decretal amount and it has become very difficult to realize the decretal amount as he does not possess movable and immovable property because the DH has made tireless affords to get the details of his property but all in vain, hence this application. An affidavit is attached.” 9. In reply thereto the stand of the judgment debtor is that he is a man having no means nor any movable or immovable property hence on account of his poor financial condition not in a position to satisfy the decree. An affidavit is attached.” 9. In reply thereto the stand of the judgment debtor is that he is a man having no means nor any movable or immovable property hence on account of his poor financial condition not in a position to satisfy the decree. The reply to this application has weighed heavily with learned trial Court while arriving at a conclusion that the judgment debtor as per his own admission has no movable or immovable property, hence in its opinion he deliberately and intentionally failed to satisfy the decree. Learned Trial Judge has also noticed from the record that the stand of the judgment debtor right from the very beginning is that he had not raised loan from the decree holder nor executed any document hence not liable to pay the suit amount. The defence of the defendant in the written statement as such has also been used against him while passing the impugned order. As a matter of fact, what was the defence of the defendant in the written statement should have not been taken into consideration during the execution proceedings and the application as such was required to be decided in view of the pleadings and also the provisions contained under order 21 Rule 37 and Section 51 of the Code of Civil Procedure. When according to Decree Holder itself the judgment debtor does not possess movable and immovable property, it is not possible to realize the decretal amount from him. Therefore, the present is not a case where the judgment debtor either disposed of his property after institution of the suit or neglected to pay the decretal amount intentionally and deliberately. 10. As a matter of fact in order to seek the detention of the judgment debtor in imprisonment, the plaintiff was required to plead and prove its case in terms of the provisions contained under Order 21 Rule 37 read with Section 51 CPC. Merely that the judgment debtor does not have any movable and immovable property he could have not been ordered to be detained in imprisonment. 11. Merely that the judgment debtor does not have any movable and immovable property he could have not been ordered to be detained in imprisonment. 11. True it is that on behalf of the judgment debtor time was sought for payment of decretal amount on the very first day i.e. 29.9.2009 and in reply to the application, his defence was that he anyhow or other is earning his livelihood and arranging the expense required for his medical treatment by way of working as labourer. However, on the basis thereof also it cannot be said that he is a man of means or that he has neglected to pay the decretal amount intentionally and deliberately. 12. In view of the above, the impugned order is not legally and factually sustainable and the same as such is quashed and set aside. The decree holder, however, is at liberty to take appropriate steps including filing of an application for detention of the judgment debtor in civil imprisonment to ensure that the decree is satisfied, however, in the light of the observations hereinabove and in accordance with law. The petition is accordingly allowed and stands disposed of.