KALYAN RAI SURANA, J.

1. Heard Mr. G.P. Bhowmik, the learned senior counsel assisted by Ms. M. Kalita, learned counsel appearing for the petitioner as well as Mr. R. J. Bordoloi, the learned counsel appearing for the respondent.

2. By this application under Section Article 227 of the Constitution of India, the petitioner has challenged the order dated 28.02.2017 passed by the learned Civil Judge, No. 3, Kamrup (Metropolitan), Guwahati, thereby allowing petition No. 1127/2015 filed by the respondent under Order XXI Rule 37 CPC.

3. The effect of the order is that the learned Civil Judge No. 3, Kamrup, Guwahati acting as an executing Court in connection with T.Ex. No. 15/2013, issued a direction to the Chief Manager and the Manger of Central Bank of India, Ulubari Branch to appear and to show cause as to why they should not committed to civil prison for not handing over decreetal gold and gold ornaments etc. to the respondent decree holder, and the case was fixed for personal appearance of the Chief Manager and Manager of the said bank.

4. The learned senior counsel for the petitioner has submitted that the respondent-plaintiff in Title Suit No. 346/2003, by which prayer for declaration as well as decree for damages was prayed for. In short, the claim of the respondent-plaintiff in the plaint is that he had pledged about 38 tolas of gold as security for the payment of his dues by keeping the said gold in the bank's locker as security. The loan was availed from the erstwhile Purbanchal Bank Ltd., which got merged with the Central Bank of India. It is submitted that the bank locker had to be replaced and therefore, the respondent was issued a notice, but as he did not appear, the earlier bank locker was opened with the presence of the Magistrate and officers of the bank and after preparing the inventory in respect of the contents of the concerned locker, the contents were shifted to another locker. In the meanwhile, Money Suit No. 65/1982, filed by the Purbanchal Bank Ltd. against the respondent was dismissed and when the respondent had approached the bank for collecting his 38 tolas of gold, he refused to accept 18 odd tolas of gold found in the locker. Therefore, after issuance of notice, the respondent had filed a suit being T.S. 346/2003. However, the said suit was dismissed. Therefore, the respondent had preferred an appeal before this court which was registered as RFA 46/2006 and this Court, by judgment and order dated 11.09.2013, held that the respondent was entitled to a decree for return of gold and gold ornaments weighing about 38 tolas. Accordingly, a decree was drawn up.

5. It is submitted by the learned senior counsel for the petitioner that as the nature of the decree was not a money decree and as the Chief Manager and the Manager of the petitioner bank were not the judgment debtors, the learned executing Court could not have issued any notice to show cause for committing the said officers of the bank to civil prison. It is submitted that the objection filed by the petitioner was not appreciated by the learned executing Court in its true perspective and, as such, the impugned order was passed, which is not sustainable on facts in law.

In support of his contention, the learned senior counsel for the petitioners has placed reliance on the case of S.K. Alagh Vs. State of Uttar Pradesh & Ors., (2008) 5 SCC 662 to project that the vicarious liability cannot be fastened on the Chief Manager and Manager of the Bank. He also relies on the case of Jolly George Varghese and Anr. Vs. Bank of Cochin, (1980) AIR SC 470 to project that the executing Court could have invoked alternative remedies for enforcement of decree but the Chief Manager and the Manager of the Bank cannot be consigned to prison for inability of the petitioner bank to satisfy the decree, which was not passed against any officer of the bank.

6. The learned counsel for the respondent, per contra, has made his submissions in support of the order impugned herein.