- (1.) THIS is an appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court by which the appellant has been held guilty of a gross contempt of the authority of this Court and has been sentenced to one month's simple imprisonment,
(2.) IT is necessary to state the facts. On the 27th of December, 1952 Sir Jai Lal, a retired Judge of the Lahore High Court, and others filed a petition for winding up of the Simla Banking and Industrial Company, Limited. On the 29th December, 1952 falshaw J. apart from ordering notice of the petition to the Bank and ci'ation in newspapers as to the appointment of provisional Liquidator made an order thus: "proceedings in all the suits listed in the application annexure 'x' will be stayed meanwhile. " item No. 12 in the aforesaid annexure was "shri Ram Narain Mathur v. The Simla banking and Industrial Company, Limited (Case No. 1 of 1952) pending before the tribunal Judge (Civil Judge) Benares, U. P. fixed for 2nd and 3rd January, 1953 under Section 13 of Act LXX of 1951". Before the order of Falshaw J. reached the tribunal at Benares, a decree was passed by the aforesaid Tribunal in the sum of rs. 1,00,000/- in favour of the appellant against the Bank. On the 6th January, 1953 the appellant filed an execution application before the tribunal at Benares seeking to execute the decree in his favour. The Tribunal, however, stayed proceedings in view of the slay order made by this Court. On the 27th of January, 1953 Mr. Devi Dayal Dhawan was appointed provisional liquidator of the Bank. On the 28th of January, 1953 a petition was made on behalf of the bank praying that further proceedings in the various suits as shown in annexure 'a' might be stayed till the final decision of the petition. Item No. 3 in annexure 'a' clearly referred to the execution application pending in the Court of Civil Judge, Benares, acting as the Tribunal, relating to the decree obtained by the appellant. On the 30th of January, 1953 Khosla J. ordered 'protection order as prayed'. The appellant applied to this Court for vacation of the stay order on the ground that the proceedings pending before the Tribunal constituted under Act LXX of 1952 could not be stayed by this Court. This application, however, was rejected by Dulat J. by an order dated 20th March, 1953 and the prayer for the vacation of the stay order was declined. In the meantime the Provisional Liquidator under directions of the Liquidation Judge went up in appeal against the decree of the Benares Tribunal to the Allahabad High court. In that appeal the present appellant applied for issue of an injunction to the provisional Liquidator and the Directors of the Bank restraining them from paying any sums of money to the creditors without safeguarding his interest. On 17th November, 1953 a Bench of the Allahabad High Court directed the appellant to move this Court within a month for necessary directions. Before this order was made by the Allahabad High Court the Bank had been ordered to be wound up on 25th of September 1953. On the 24th of October, 1953 the Indian banking Companies (Amendment) Ordinance came into force which was followed by the Indian Banking Companies (Amendment) Act which became law on 30th december, 1933. On 17th February, 1954 the appellant made an application to the Tribunal at benares in which he stated that according to the provisions of Part III of Section 45-A of the Ordinance, Section 171 of the Indian Companies Act had been overridden and varied by section 45-C of the Ordinance in respect of stay of proceedings pending against the Banking Company which was being wound up. It was asserted that suits and proceedings against the Banking Company pending only in a Court and not in a Tribunal were liable, to be stayed. In paragraph 5 the position taken up was that neither the order dated 29th december, 1952 of this Court under Section 169 nor the letter dated the 13th of march 1953 by the Provisional Liquidator under Section 171 of the Companies Act could have been served on the Tribunal except through the Allahabad High Court. Consequently, the execution proceedings could not be deemed to have been stayed. Paragraph 6 deserves to be set out in its entirety. It was as follows-"that in order to safeguard the payment of the decretal amount to the applicant-decree-holder the Hon'ble High Court at Allahabad has been pleased to issue a prohibitory injunction (certified copy enclosed) to the liquidator and the Directors of the respondent-Banking Company which continues in force. " it would be proper to state at this stage that in the records of the Tribunal which were sent for by this Court no such copy is to be found. Learned counsel ior the appellant showed us a certified copy of an. order of the Allahabad High Court dated 17th November, 1953, but that order, as has already been stated before, directed that the appellant should move this Court and therefore no prohibitory injunction had been issued by that order as has been stated in paragraph 6 of this application of the appellant. Finally, the prayer was made that a precept under Section 46 of the Code of Civil procedure and a transfer certificate of the decree might be issued to the executing court at Bombay for attachment of the shares and securities in die judgmentdebtor's account in the Central Bank of India, Bombay io the extent ot the decretal amount, and also a transfer certificate to this Court for attachment of the judgment-debtor's funds in the Grindlay's Bank, Simla be issued. On the 26th February, 1954 the appellant made another application to the Tribunal at Benares in which it was stated in paragraph 3 that on 27th November, 1953 the tribunal and on 6th August, 1933 the Allahabad High Court had issued a prohibitory order to the Directors and the Liquidator of the Bank not to make any further payments to its creditors, Paragraph 12 of this petition was AS follows :-- "that no order has been received by this Tribunal from the Punjab High Court under Section 45-C (3) of the Banking Companies (Amendment)Ordinance No. IV of 1953, which was promulgated on 24th October. 1953 and in the absence of any such order, the provisions of Section 45c must be deemed to be inapplicable to the execution proceedings pending in the Tribunal, and even if the proceedings were considered to be pending in a Court, such proceedings shall be continued under section 45-C (4) of the said Act, which overrides Section 171 of the Companies act under which the proceedings were stayed : vide section 45-A of the other Act. " The prayers were- (a) to issue precept in execution to the executing court at Bombay as already prayed, or in the alternative; (b) to issue an interim injunction to the Official Liquidator of the Bank restraining him from alienating etc. the shares and securities held in credit account in the Central Bank, Bombay, and the Grindlay's Bank, simla. It is significant that even in this application no mention is made of the order of the allahabad High Court dated 17th November, 1953, which. must be within the knowledge of the appellant by which he had been directed to move this Court for any injunction of the nature prayed, and it is noteworthy that the appellant kept on referring to some earlier interim order made on 6th August, 1953 by the allahabad High Court (No copy of that order is traceable on the record ). The tribunal made an order requiring the Liquidator to appear and show cause on 24th april, 1954. As soon as this notice was served on the Liquidator, he made an application here on 19th March, 1954 stating that the aforesaid notice had been received from the tribunal and submitting that immediate orders be made for transfer of the execution case pending before tile Tribunal together with the applications of the appellant mentioned before. In exercise of the powers conferred by Section 45-C of the Banking Companies Act as amended on the 22nd March, 1954 Falshaw J. passed an order issuing notice to the appellant for 2nd April, 1954. On 2nd April, 1954 it was ordered that a fresh notice be issued for 23rd April, 1954 as the notice had been returned unserved for want of proper address. On 7th may, 1954 the respondent was still unserved. Fresh notice was ordered to be issued for llth June, 1954. In the meantime, however, the appellant after obtaining an order on 24th April, 1954 of grant of a transfer certificate from the Benares tribunal tiled an application for execution on 4th June, 1954 in the High Court at bombay. In column 'b' where the name of the party was to be stated in the application the bank was not shown as being in liquidation. Similarly in column 'i' where the name of the person against whom enforcement of the decree or order was to be stated, there was no mention whatsoever of the Bank being in liquidation. On the llth june, 1954, however, Mr. M L. Sethi, Advocate, put in appearance on behalf of the appellant before Falshaw J. and it seems that he prayed for adjournment, and the order made on that day was--"adjourned to 25th June, 1954. " attachment of the property sought to be attached was ordered by the Bombay high Court on or about 18th June, 1954. On the 25th June, 1954 the counsel for the Bank and Mr. Sethi, Advocate appeared. The following order was made by falshaw J. "mr. M. L. Sethi for the respondent states that he has no instructions and is permitted to withdraw from the case. I accordingly order the transfer to this Court of the proceedings pending in the Court of the Tribunal at benares and the execution application recently filed in the High Court at bombay. " On the 25th June. 1954 the Official Liquidator of the Bank moved this Court for taking proceedings for contempt of Court against the appellant. It appears that the tribunal on receipt of the order of this Court passed on 25th June, 1954 sent an intimation here on 14th July, 1954 that the execution proceedings had already been transferred to the High Court of Bombay. Thereafter the Liquidator applied on 28th Oc. ober, 1954 to this Court for setting aside the order of the Bombay High court dated 18th June, 1954 directing attachment of the shares and securities belonging to the Bank in the possession of the Central Bank of India Ltd. Bombay. This application was resisted by the appellant but it was held by this Court that the order ot transfer made on 25th June, 1954 was perfectly valid and that the order ot attachment obtained by the appellant from the Bombay High Court was void. The appellant appealed to their Lordships of the Supreme Court for which special leave was granted and the decision of their Lordships of the Supreme Court is reported in Shri Ram Narain v. Simla Banking and Industrial Co. Ltd. , (S) AIR 1956 SC 614 (A ). The Supreme Court decided that the proceedings relating to execution of the decree obtained by the appellant from the Tribunal against the Bank and all other incidental matters arising therefrom fell within the exclusive jurisdiction of the punjab High Court subject to the provisions of Section 45-C of the Banking companies Act. As regards pending matters their Lordships considered that the order of transfer made by this Court on 25th June 1954 was perfectly valid. The appeal was therefore dismissed.
(3.) IT has now to be determined whether any appeal under Clause 10 of the Letters patent lies against the order of Falshaw J. which is the subject matter of the present appeal. Mr. Lachhman Das Kaushal who has appeared on behalf of the state contends that the order in question is one which has been made in the exercise of criminal jurisdiction of a learned Single Judge of this Court and therefore no appeal is competent under Clause 10 of the Letters Patent of this court. Reliance for this purpose has been placed on Narayanrao Vithal v. Solomon Moses, air 1933 Bom 108 (B), where it was held that comments upon a pending trial by persons, some of whom were parties to the suit constituted contempt of a criminal nature and an appeal was precluded by the words of the relevant clause of the letters Patent against an order passed in such a matter. A distinction was made in that case between what may be called "civil contempt" and "criminal contempt". Disobedience to an order made in a civil suit constitutes contempt of a civil nature but where the alleged contempt consists in interfering with the due trial of a civil suit, that contempt is of a criminal nature. This difference between civil and criminal contempt was referred to by the learned Advocate-'general who appeared in the Bombay case and in support of his con'ention he relied on the discussion in halshury's Laws of England, Volume 7, at page 280 and certain English authorities. Beaumont, C. J. and Blackwell, J. accepted the paint made by the Advocate-General and held that no appeal was competent. In Kapildev Malaviya v. Chief justice and Judges of the High Court, Allaha-bad, AIR 1935 All 811 (C), an advocate, an Editor and a Printer and Publisher of a newspaper had been sen'enced for contempt of Court to certain amount of fine. The offence was found to have been committed on account of publication of an article headed "a scandalous citation. " a petition was made for leave to appeal to the Privy Council under the provisions ot Sections 109 and 110 of the Code of Civil Procedure. It was observed by sulaiman, C. J. that the proceedings were in the exercise of the inherent jurisdiction of the High Court and were of criminal nature. According to the learned chief Justice the conviction and the fine imputed were Lueuuulvcs sufficient to show at least that the proceeding was not of a civil nature. As in this view of the matter the case did not fall within the provisions oi Section 110 leave was refused. In In re S. Covind Swaminathan, (S) AIR 1955 Mad 121 (DJ, a Bench of the Madras High Court laid down that no appeal lay under Clause 15 of the Letters Patent of that Court against an order of a single Judge, while presiding over the Criminal Sessions of the High Court finding a person guilty of 'ex facie' contempt and sentencing him to fine. The reason given was that such an order would be one passed in the exercise of criminal jurisdiction within the meaning of Clause 15 which is same as Clause 10 of our Court. According to the observations made by the Bench, a contempt of Court --other than mere disobedience to orders of Court, which have been regarded as civil in english law as followed in India--is "criminal" in its essence and the jurisdiction exercised when a contemner is punished is similarly "criminal" and the source of the jurisdiction of the High Court --whether it is part of the inherent power of the court or is incidental to its being a superior Court of Record -- does not affect its nature or character. After considering a good deal of English and Indian case law, the Madras Bench made the following observations :-- "it is only necessary to add one observation if only to obviate misunderstanding. Contempts have been classified into two categories -which might broadly be designated civil and criminal contempts -- the former comprising those cases where the power ot the Court is invoked and exercised to enforce obedience to order of Courts and the latter where the act of the contemner is calculated to in errere with the course of justice including libels or insults to Judges and publications prejudicing the fair conduct of proceedings in Court. In regard to 'civil' contempts courts have held that being civil in their nature appeals lie from orders passed in such cases and the decision of this Court reported in -" Venkatalingam v. Mrutyanjayadu', AIR 1943 Mad 541 (E), is an instance in point. Vide also S. N. Bannerjee v. Kuchwar Lime and Stone Co. Ltd. , air 1938 PC 295 (F ). We are not here concerned witk a 'contempt' of this category but of the other variety which has always been treated as criminal in its essence. " finally Mr. Lachhman Das Kaushal has relied largely on a decision of the Patna high Court in N. Baksi v. O. K. Ghose, (S) AIR 1957 Pat 528 (G ). The Patna Bench while considering the nature of civil and criminal contempts has taken the view that though there is, as is well-known, some point of difference between a criminal and a civil contempt but that difference does not touch the matter of the execution by attachment and committal in the case of a civil contempt in contrast to the process of attachment and committal as followed in a criminal contempt. The difference, if any, between a criminal and a civil contempt lies essentially in the nature of the conduct that gives rise to the one or the other. Referring to the observations of Mookerjee, J. in Moti Lal Ghosh, In re, ILR 45 Cal 169 ; (AIR 1918 cal 988) (SB) (H), the learned Judges proceeded to point out that refusal to obey the order of the Court may render it necessary for the Court to adopt punitive measures against the person who has defied its authority; at that stage, at least, the proceedings may assume a criminal character. In this manner, the dividing line between acts which constitute criminal, and others which constitute civil, contempts may become indistinct in those cases where the two gradually merge into each other.;