JUDGMENT - A.D. MANE, J.:---The revision application is directed against the order issuing warrant for arrest and detention of the petitioner under Order XXI, Rule 38 read with section 51 of Code of Civil Procedure.

2. The petitioner was working with the respondent as a Clerk and it was the case of the respondent that during his tenure of service he has misappropriated certain amount being the sale proceeds to a sum of Rs. 6,530.62 Ps. The plaintiff-respondent therefore, filed a suit to recover the said amount from the petitioner. The said suit was decreed on February 26, 1980. The respondent, thereafter, tried to excute the decree by attaching the petitioner's provident fund. The amount could not be legally attached and, therefore, there was no realisation of the decree. Thereafter, it appears that the petitioner gave his consent and authorised the respondent to withdraw the amount from his provident fund with the leave of the Court. The decree was, however, not satisfied. The respondent then applied to the executing Court inter-alia alleging that the petitioner is a well to do person and has got means to pay but has been adopting delaying tactics and wants to prolong the matter and, therefore, he should be arrested and detained in the civil prison.

3. That application of the respondent (Ex. 35) has been granted with a criptic impugned order which reads as follows :

"Heard Advocate Shri Muley, on behalf of D.H. Pperused the testimony of the parties. Advocate for J.D. not present. Perused the VII and XII extract filed herewith alongwith list (Ex. 37). So also the certificate of concerned Sarpanch not challenged. It appears that J.D. tenant in possession of S. No. 113/1 Anchalgaon. It appears the J.D. has means to pay the decretal dues. Hence, issue warrant against J.D. Under/Order 21, Rule 38 C.P.C. (sec. 51 C.P.C.) D.H. shall deposit the subsistence allowance, as per the prevailing rule, within 8 days."

4. Shri Navandar, the learned Counsel for the petitioner, in the first place, urged that there is absolutely no evidence to show that the petitioner has any means to pay and that he has mala fide or dis-honestly declined to pay. Therefore, the essential conditions to invoke provision of Order 21, Rule 38 read with section 51 C.P.C. were wanting and in consequence the impugned order is bad in law. Secondly it has been urged that there is non-application of mind by the Court below in ordering arrest and detention of the petitioner, inasmuch as there has been no period of detention in the order as required by law and, therefore, the impugned order is also liable to be quashed and set aside for want of proper exercise of jurisdiction by the Court below.

5. Shri Dabir, the learned Counsel for the respondent has no doubt submitted that there is neither error relating to jurisdiction nor procedure followed by the Court below so as to interfere with the impugned order in revision.

6. In my opinion, the impugned order cannot stand in law as it suffers from serious infirmities. The first infirmity is the non-application of mind by the Court to the facts and circumstances of the case. The proviso to section 51 so far it is relevant here lays down that where the decree is for payment of money, execution by detention in prison shall not be ordered unless the Court is satisfied that the judgment-debtor, has or has had since the date of the decree the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. The respondent has alleged in the application (Ex. 35) that the petitioner is a tenant in respect of the land at Achalgaon because his name appears in the record of rights of the year 1982. There is, however, absolutely no material to show that except the provident fund which he had, the petitioner has or has had any means to pay. There is also no evidence to show that he derives any income from the said land. In the circumstances, it is not possible to infer that th

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