JUDGMENT :

(Bibhas Ranjan De, J.)

1. The order no. 25 dated 03.04.2023 in connection with money execution no. 98 of 2021 arose out of money suit no. 385 of 2020, is under challenge. By the order under challenge Learned Chief Judge, City Civil Court, Calcutta issued warrant of arrest against the directors of the judgement debtor and decree holder was directed to provide the names of directors of the judgment debtor against whom warrant to be issued.

2. By the order impugned Learned Chief Judge observed that in spite of having opportunity judgment debtor did not file any written objection and thereafter avoided appearance before the Court on several occasions. On 04.05.2022 Learned Chief Judge in office allowed judgment debtor as last chance for hearing of the petition dated 12.04,2022 with a prayer for issuance of warrant of arrest. Thereafter, on several occasions the hearing was adjourned on different grounds. Lastly, on 03.04.2023 i.e. by the impugned order learned chief judge took up the hearing of the application dated 12.04.2022. In course of passing order Learned Chief Judge came across the argument advanced on behalf of the judgment debtor regarding conditions required before issuing warrant of arrest against the judgement debtor and that conditions have not been incorporation in the petition dated 12.04.2022.

3. It was observed by the Learned Chief Judge that in spite of having several opportunities judgment debtor has avoided making payment to the decree holder and on the other hand judgment debtor mortgaged or charged all the properties with banks. Accordingly, Learned Chief Judge issued warrant of arrest.

4. Learned senior advocate, Mr. Abhrajit Mitra, appearing on behalf of the petitioner/judgement debtor has contended before this Court that the conditions envisaged in Section 51 of the Code of Civil Procedure Code have to be complied with before passing any order of issuing warrant of arrest to enforce execution. Mr. Mitra has further submitted that in the order impugned none of the conditions under Section 51 of the Civil Procedure Code was ever satisfied before issuance of warrant of arrest. In support of his contention, Mr. Mitra has referred to the decision of Rajiv Garg Vs. L & T Finance Limited and Anr. reported in 2011 SCC Online Cal 3486 and a case of Sasanapuri Someswara Rao Vs. Shriram City Union Finance Ltd. reported in 2022 SCC OnLine AP 345.

5. In Rajiv Garg (supra) dealt with a case of liability of a guarantor in a fiduciary capacity towards the creditor to account for the loan and accordingly Hon’ble Division Bench of this Court took up the issue within the purview of clause (c) of the first proviso to Section 51 of the Code of Civil Procedure.

6. In Sasanapuri Someswara Rao (supra) Hon’ble Division Bench of the High Court of Andhra Pradesh observed that scheme of section 51 Civil procedure code is to ensure that sufficient reasons exist for making an order of arrest and detention of a judgmemnt debtor in civil prison in execution proceedings which is flagrantly violative or Article 21 of the Constitution of India unless there is prove of minimal fairness of his willful failure to pay in spite of his sufficient means and willful neglect and refusal to pay the decree – debt.

7. By the assistance of aforementioned principle laid down in the above cases Mr. Mitra has tried to make this court convinced that Learned Chief Judge did not assign any reason in compliance with the Provision of Section 51 of the Code of Civil Procedure before of issuance of warrant of arrest.

8. Per contra, Ld. Advocate, Mr. Sanjoy Bose appearing on behalf of the opposite party/decree holder has argued that the order impugned clearly shows that reasons have been assigned taking the conditions envisaged in Section 51 of the Code of Civil Procedure.

9. Mr. Bose has submitted the judgement debtor in spite of having means avoided payment of decretal amount arose out the decree dated 12.03.2021 which remained unchallenged. In suppor