Decided on May 08,1963


Referred Judgements :-



Bachawat, J. - (1.)This is an appeal from an order committing the appellant for contempt of Court. On January 13, 1939 a final decree was passed in suit No. 4 of 1926 instituted in the Court of the Judge, Small Causes Court, Allahabad, for partition of the joint family business and properties belonging to the parties to the suit and eventually by the appellate decree, passed by the Allahabad High Court, on December 6, 1949, premises No.6 Shibu Thakur Lane, Calcutta, as also other properties were allotted to the respondent. The decree provided that the parties would be put in possession of the properties forthwith. The decree was transmitted to the Calcutta High Court for execution. On February 15, 1958, a tabular statement was filed in the Calcutta High Court by the respondent for execution of the decree by delivery of possession of premises No. 6 Shibu Thakur Lane, by evicting the appellant from the premises. On June 12, 1958 an order for possession was made in terms of the tabular statement. The appellant took various proceedings for setting aside the order for possession and obtained a stay order, and ultimately by an order dated May 5, 1959 the stay order was vacated, with the result that the order for possession became enforcible. The appellant having offered resistance to the delivery of possession of the premises, the respondent made an application under Order 21, Rule 98 C.P.C. Upon this application the Court passed the order dated September 22, 1959, the material portion of which reads 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, Shibut 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 the premises No. 6, Shibu Thakur Lane, Calcutta"

"And it is further ordered that the said Sheriff do take police help if 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 of the Code of Civil Procedure put the said applicant in possession of the said premises. And upon the undertaking of the said respondent given as aforesaid it is further ordered that the order shall not be executed till the first day of October one thousand nine hundred and sixty."

(2.)The appellant did not carry out the undertaking mentioned in the aforesaid order. He did not vacate premises No.6, Shibu Thakur Lane on or before the 1st October, 1960. He has not vacated the premises even now. Nor did he pay any moneys in terms of the undertaking. On November 16, 1960 the attorneys for the respondent took out a notice of motion praying for an order that the appellant be committed for contempt of Court for breach of the aforesaid undertaking. G. K. Mitter, J. found that the appellant was guilty of contempt of Court for breach of the undertaking to vacate the premises and passed the order dated January 25, 1961 directing the appellant to pay a fine of Rs.1000/- and also directing that in the event of the appellant carrying out his aforesaid undertaking and vacating the premises and putting the respondent in possession thereof within one week from the date of the order, there should be no further punishment in the event of the appellant failing to do so he should stand committed to prison for two months for contempt of Court.
(3.)On behalf of the appellant Mr. Ghosh argued that, as the formal order dated the 22nd September, 1959, did not expressly state that the undertaking was given to the Court, the undertaking was a promise made to the respondent for the breach of which the appellant could not be committed for contempt of Court. We cannot accept this contention. It is well settled that the breach of an undertaking given to the Court by any person in pending proceedings on the faith of which the Court sanctions a particular course of action or inaction is misconduct amounting to contempt. The point in issue is whether the undertaking given on September 22, 1959, is an undertaking to Court on the faith of which the Court sanctioned some course of action or inaction. Now the Court frequently proceeds upon undertaking given by parties and it is common practice to insert the undertaking in the body of the order before the ordering part to which it relates so that in the event of breach it may be enforced by a writ of attachment, see, Senton's Forms of Judgments and Orders, 9th Edition Vol. I, pages 124 and 162. In the instant case the undertaking in question was inserted in the introductory part of the order and in the substantive part of the order it was stated that upon the undertaking given as aforesaid, the Court had directed the stay of execution of the order for a limited period. Plainly the undertaking was given to Court. On the faith of the undertaking the Court sanctioned the stay of execution of the order. A reference to Seton's Forms of Judgments and Orders shows that an undertaking given to Court in the technical sense is often expressed in formal judgments and an orders as a simple "undertaking". In Prokash Chandra Mukherji v. Manindra Nath Mukherji, ILR (1946) 2 Cal 499, an undertaking incorporated in a decree was construed as an undertaking given to the Court in the technical sense. Strong reliance is placed by Mr. B. K. Ghosh upon the case of Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho, AIR 1948 Calcutta, 294. In that case one A, the owner of certain premises brought a suit for ejectment against the lessee B on the ground that the latter had installed a certain image on the premises without A's consent. The suit was compromised. By the compromise B undertook to remove the image before giving up possession of the premises or at any time prior thereto on demand by A. The compromise was presented to the Court and a decree was passed in terms of the compromise. B subsequently declined to remove the image on demand by A. Harries, C.J. and B. K. Mukherjea, J. held that an undertaking in a compromise negotiated outside Court and not expressed as one given to the Court should prima facie be construed as an undertaking to the other party and not to the Court, though the compromise is intended to be filed in Court, and though it is so filed and a decree is passed in terms thereof, and that B not having given an undertaking in the Court was not liable to be committed for contempt of Court for its breach. This decision is entirely distinguishable. In the instant case, the undertaking does not form part of any compromise nor is it the result of any bargain between the parties. The undertaking was given in open Court and relying upon it, the Court sanctioned the stay of execution of the order for delivery of possession for a limited period.

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