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. 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. 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 d

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