Decided on January 25,1961

Lala Shyam Sunder Respondents


G.K.MITTER, J. - (1.) THIS is an application by one Lala Baijnath Prosad, a decree -holder, for committal to prison of the respondent Shyam Sundar Agarwalla for contempt of Court for breach of an undertaking alleged to have been given by him and recorded in the order dated 22nd of September, 1959 whereby he undertook to pay to Messrs. Sarat Chandra Ghose and Co., Attorneys for the petitioner, a sum of Rs. 500/ - per month as mesne profits by the first week of every month, the first of such payment to be made by the first week of October 1959, and deliver vacant possession of premises No. 6, Shibu Thakur Lane, Calcutta, to the petitioner on or before the 1st of October, 1960.
(2.) THE facts as laid in the petition are as follows. One Lala Pratap Chandra Agarwalla instituted suit No. 4 of 1926 in the Court of the Judge, Small Cause Court, Allahabad, for partition of the joint family business and properties belonging to the parties to the said suit, the petitioner being defendant No. 7 and the respondent being defendant No. 22. The final partition decree was made on the 13th of January, 1939, whereby lot No. 4 including a Calcutta property, being premises No. 6, Shibu Thakur Lane, was allotted to the petitioner. An appeal was preferred from this decree to the Allahabad High Court and it was disposed of by a decree dated 6th of December 1949 whereby the said Calcutta property as well as other properties were allotted to the petitioner. The decree provided that the parties would be put in possession of the immovable properties forthwith and the Receiver appointed over the property would be discharged. The petitioner filed two applications for execution at Allahabad, in execution case No. 2 of 1953, excluding the Calcutta property. On the 15th of February, 1958, a tabular statement was filed in this Court by the petitioner for execution of the said partition decree by delivery of possession of premises No. 6, Shibu Thakur Lane to the petitioner by evicting the respondent Lala Shyam Sundar from the said premises as indicated in column 10 of the tabular statement. An order for possession was made in terms of the tabular statement on the 12th of June, 1958. Thereupon the respondent 'took various proceedings for setting aside the said order for possession and ultimately by an order dated 5th of May, 1959, the Stay order obtained by the respondent was vacated with the result that the order for possession made on the 12th of Tune 1958 became enforceable. As the respondent offered resistance when the Sheriff went to deliver possession in terms of the order the petitioner made an application under Order 21 Rule 98 of the Code of Civil Procedure and the matter came up before P. B. Mukharji, J. when His Lordship made an order directing the Sheriff of Calcutta to put the petitioner in possession of premises No. 6, Shibu Thakur Lane. According to the petition, the learned advocate for the respondent gave an undertaking to this Court whereby the respondent was to vacate the premises No. 6, Shibu Thakur Lane, Calcutta, on or before the 1st day of October 1960, and to pay a sum of Rs. 500/ - per month as mesne profits to Messrs, Sarat Chandra Ghose and Co. by the first week of every month, the first of such payments falling due in the first week of October, 1959. As. the application turns on the exact wording of the order it is necessary to set out the relevant portion -thereof in extenso. After reciting the affidavits used in connection with the application the order provides as follows:.upon hearing Mr. B. C. Dutt Advocate for the said applicant and Mr. G. Chakravarty for; Mr. S. Banerji Advocate for the said respondent and upon the said respondent by his said advocate undertaking to vacate the premises No. 6, Shibu Thakur Lane, Calcutta, on or before the first day of October one thousand nine hundred and sixty and also undertaking to pay the sum of Rupees five hundred per month as mesne profits to Messrs. Sarat Chandra Ghosh and Company attorneys for the said applicant by the first week of every month; the first of such payment to be made by the first week of October next, it is ordered that the Sheriff of Calcutta do put the said applicant in possession of premises No. 6, Shibu Thakur Lane, Calcutta and it is further ordered that the said Sheriff do take police help it necessary for removing the occupiers of the said premises including the said respondent and for putting, the said applicant in possession of the said premises and it is further ordered that if further resistance or obstruction is made by the said respondent or by other person at his instigation the said Sheriff do in the mode prescribed under Order XXI Rule 98 The learned Advocate -General appearing for the respondent contends that the undertaking mentioned in the order was not, and is not, one given -to this Court but merely amounts to a promise by his client to do certain things by specified dates which the parties had recorded in the order made by this Court. It is argued that the order shows that the Court took the view that the applicant was entitled to an order for possession but that the order was not to be executed till the 1st day of October 1960' because of the agreement between the parties which was recorded in the form of an undertaking. I find myself unable to accept this argument. According to the Oxford Dictionary 'to undertake' means 'to bind oneself to perform', 'to make oneself responsible for', 'to accept an obligation' etc. Looking at the circumstances of this case it cannot be said' that there was any doubt about the obligation of the respondent to vacate the premises which was being' resolved by a promise on his part to do the act by a certain date. There was already a decree for possession against him under which he had the obligation to leave the premises and make over possession of the same to the applicant herein, No doubt the liability as to. mesne profits was being quantified but construing the order I have no hesitation in holding that the respondent was binding himself to the Court to vacate the premises by October 1, 1960. If the words 'to Court' had appeared after the words 'upon the said respondent by his said Advocate undertaking' the ground for the argument advanced would have disappeared. The absence of the words 'to Court' does not, in my opinion, make any difference on the facts of this case. If the 'undertaking' was meant to be no more than a 'promise' by the party to the applicant before P. B. Mukbarji, J. there would have been no occasion for the promise to be made through -the advocate.
(3.) THE learned Advocate -General drew my attention to two reported judgments of this Court in support of his contention that unless the undertaking is clearly expressed to be one given to this Court, it would be no more than an agreement between the parties. The first case cited by him is that of Nisha Kanto Roy v. Saroj Bashini : AIR1948Cal294 .;

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