Behari Lal Murarka vs Heeralal Murarka

Mallick, J.—This is an application on behalf of the Plaintiffs to enforce an undertaking given by the Defendant Sohanlal Murarka on May 31, 1951, on behalf of himself and the Defendant companies to pay maintenance. The suit in which this application is made has- been instituted by the widow and son of one Lain Lal Murarka, deceased. The Defendants impleaded are the members of the Murarka family and four private companies being the family companies of which the Murarkas are shareholders. The suit is for a declaration that the Plaintiffs as the heirs of Lalu Lal are entitled to l/8th share in the joint family properties and businesses mentioned in the plaint including the properties and funds transferred to the Defendant companies, respectively, for setting aside the various alienations and transfers in favour of the companies, for a declaration that the Plaintiff Beharilal is entitled to separate properties left by Lalu Lal, for ascertainment of the rights of the parties, for partition and for other reliefs more particularly mentioned in the plaint. At the date of the suit Beharilal was a minor and the suit was instituted by a next friend. The suit though instituted in 1938 was not heard till November 23, 1953, when the hearing of the suit began and the hearing continued for months.

On April 17, 1951, a notice of motion was taken out on behalf of the Defendant Janki Debi for the appointment of a Receiver, for payment of maintenance and for other reliefs. Similar notice was taken out by the Plaintiffs long ago on February 19, 1943. The said two applications were disposed of by an order of the Court on May 31, 1951. Practically no order was made on the said two notices on an undertaking being given by the Defendant Sohanlal on behalf of himself and the four company Defendants to pay maintenance at the rate of Rs. 1,200 per month to the Defendant Janki Bai as also to the Plaintiffs. The under-taking is to be found not in the operative portion of the order but in the earlier portion. After reciting the notices and the respective affidavits filed and the names of the counsel who were heard on the said application the order records the undertaking given in the following terms:

And upon the Defendant Sohanlal Murarka through his said advocate undertaking to Court on his own behalf and on behalf of the said Defendant companies to pay with effect from the 1st of May instant to the Defendant Beharilal Murarka and his mother Musst. Ginni Debi the sum of Rs. 1,200 on or before the 15th day of each succeeding month per month by way of maintenance until further order of this Court-such monthly payments being without prejudice to the rights and contentions of the parties concerned.

It is to be noted that Sohanlal was represented in the applications by Mr. M. N. Banerjee, instructed by Messrs. Dutt and Sen, whereas the Defendant companies were being represented by Mr. Sankar Banerjee instructed by Messrs. Mitra and Mitra. It appears that the maintenance was being paid regularly up to and including the month of October, 1953. As stated before, the suit was taken up for hearing by Sarkar, J. on November 23, 1953, but the payment of maintenance was stopped on and from November, 1953, which became due on December 15, 1953. Thereupon a copy of the order passed on May 31, 1951, was served on Sohan Lal on February 21, 1954, and demand was made for payment of maintenance which remained unpaid as stated above Thereafter certain correspondence passed between the Plaintiffs'' solicitors and the Defendant Sohanlal. Maintenance not having been paid the present notice was taken out by the Plaintiffs on April 5, 1954. I am informed that at the date of the notice, the hearing of the suit was going on. On the motion coming to the list of Sarkar, J., directions for filing affidavits were given. After the respective affidavits were filed, it was found that facts were disputed in the respective affidavits and in consequence the Court felt that the application could not be disposed of without oral evidence. Thereupon the applicction was set down to be heard on evidence. In the meantime Sarkar, J., left this Court and the list was assigned to me. When the matter came up for hearing before me, I thought that inasmuch as Sarkar, J. was fully acquainted with the disputes amongst the Murarkas and in view of the fact that at the earlier stages he dealt with the matter, it should be adjourned till Sarkar, J. returns back and takes up this list. Both the parties, however, informed me that the application was not part heard by Sarkar, J. and pressed me to take up the matter. So far as the Petitioners are concerned the urgency was that they were not getting any maintenance since November, 1953, and so far as the Respondent is concerned the urgency was in the expressive phrase of their counsel Mr. Banerjee "the hanging of the Damocles sword." Hence I had no other option than to take up the application myself even though I wished that Sarkar, J. had heard the application.

I have been reminded time and again by Mr. Banerjee who appears for the contemnor, that this application being a contempt application and hence quasi-criminal in character, he would be entitled to take all technical pleas in bar to the present application. In fact he raised any number of such pleas which have to be considered and disposed of, before the points of substance can be decided. In the case of some of the points raised I gave out my mind during the proceedings before me what my views were but Mr. Banerjee persisted in his points and very properly asked me to hear and decide each and every point raised inasmuch as it is notorious that Murarka disputes do not end in one Court. In consequence I have given the fullest hearing to the parties and have given my most anxious consideration to the arguments advanced and record my decisions on the points raised.

In order to appreciate the technical points raised in bar to the present application, it is necessary to state certain facts. The undertaking given was to pay maintenance to the Plaintiffs. The Plaintiffs in this suit are Beharilal and his mother Musst. Ginni Debi. In between the date of the institution of the suit and present application a son was born to Beharilal. Beharilal''s son has been joined as co-Petitioner along with the Plaintiffs in the application before me. The maintenance which Sohanlal undertook to pay to Beharilal and his mother was for the maintenance of LaluLal''s group of the Murarkas, Lalulal''s group now consists not only of Lalulal''s widow and son Beharilal but also of Beharilal''s son as well. Therefore for greater safety, the advisers of the Plaintiff thought that in the present application to enforce the undertaking to pay maintenance, Beharilal''s son should be joined as co-Petitioner along with the Plaintiffs. It is argued that the jointer of Beharilal''s son as a co-Petitioner in whose favour no undertaking has been given makes the application bad. It is to be noted that though Beharilal''s son has been joined as co-Petitioner, order for payment is claimed in para, (c) of the notice not in favour of Beharilal''s son but in favour of Plaintiff''s alone. In my judgment the jointer of Beharilal''s son as a co-Petitioner does not make the application bad and I will not be justified in dismissing the application on that ground. Under the general law misjoinder of a Plaintiff is not fatal to a suit, nor in my judgment is it fatal to an application. In this petition relief is claimed and can be given to the Plaintiffs who may be found entitled to payment and I am entitled to ignore Beharilal''s son in whose favonr no payment order is claimed. In any event the joinder of Beharilal''s son as an applicant is at best a mere irregularity which does not affect the merits of the case or the" jurisdiction of the Court and I am prepared to condone this irregularity and decide the merits of the case on the footing that the Plaintiffs alone are the applicants before me.

The second technical point raised by Mr. Banerjee arises in this way. In the copy of the petition supplied to the Respondent''s attorney, the signature of Musst. Ginni Debi by her constituted attorney does not appear. In the petition, however, the signature is to be found. It is clear that the petition being on behalf of both the Plaintiffs, unless the petition is signed by both the Plaintiffs either personally or by constituted attorneys, the petition would not be in order. Mr. Banerjee argued that inasmuch as the copy supplied to his solicitor did not contain the signature of Musst. Ginni Debi, the signature of Mnsst. Ginni was not there originally when the notice of motion was served on his client but that the signature was taken subsequently. Hence Mr. Banerjee asked me to hold that the petition was not in order originally when notice was served on his client and it being a contempt application, I should dismiss this application being an application not in order. I pointed out to the Learned Counsel that from the mere fact that copy supplied did not contain the signature of Musst. Ginni Debi, I would not be justified in loading that the petition was not in order at the time when notice was served on his client. In fact, I find that the petition is in order now, both signatures do appear as it should in the petition. The signature of the attorney was there and the Commissioner would not affirm the affidavit unless at the time of affirmation the petition was in order. More reasonable inference from the fact of this case would be that the clerk who supplied the copy did not put in the signature of Musst. Ginni Debi. As Mr. Banerjee persisted in his contention, I asked Mr. Bose who represented the Petitioners whether he was in a position to prove that before the notice was served, the petition was signed by Musst. Ginni''s constituted attorney. Mr. Bose, thereupon, tendered the evidence of Himansu Sekhar Ghose, the managing clerk of the Plaintiff''s attorney. I am satisfied from his evidence that the petition was signed first by Beharilal and after sometime by the constituted attorney of Musst. Ginni Debi and then the petition was taken by him to Mr. S. D. Payne for signature and after the signature of Mr. Payne the petition was taken to the court for being affirmed by Beharilal. After affirmation it was taken by the witness personally and tendered to Sohanlal for the purpose of effecting service. Sohanlal having refused to acknowledge receipt, the matter was mentioned in Court at 4 o''clock the same date when leave was obtained to serve the notice and petition by affixing. On the next date, the witness similarly went and tendered the original and copy of notice and petition to Sohanlal and Sohanlal having refused to acknowledge receipt, service was effected by affixing a copy at the door. His further evidence is that Sohanlal did read the original of the entire petition and that the copy of the petition served on Sohanlal contained both the signatures. According to the witness immediately after he effected service by affixing, while he was coming away, the copy petition was taken out by one of the bearers of the office. When Mr. Banerjee cross-examined this witness for sometime, I expressed my view to the effect that I would accept his evidence because it was eminently acceptable and further cross-examination on the point would not improve his client''s case on the point. After some time the learned Standing Counsel who was leading Mr. Banerjee informed me that he would accept the evidence of Himansu Sekhar Ghose and would not further cross-examine him. I think the learned Standing Counsel acted wisely in the matter. I hold on evidence that the petition was in order right from the very beginning and the point taken by Mr. Banerjee cannot be upheld.

The next point taken was about the wording of para, (a) of the notice and para, (a) of the petition. According to Mr. Banerjee''s reading of para, (a) of the notice the committal order is sought for disobedience of an order for payment. The order of May 81, 1951, did not contain any order for payment. That is true enough. I do not, however, agree with Mr. Banerjee''s reading of para, (a) of the notice. Paragraph (a) of the notice asks for committal for violation of the undertaking to pay maintenance contained in the order, dated May 31, 1951. My attention has also been drawn to the prayer of the petition. Prayer (a) of the petition is slightly different from para, (a) of the notice. In the prayer after ".undertaking to Court contained "in the said order" the following words have been dropped: "for payment of maintenance to the Plaintiffs Beharilal Murarka "and Musst. Ginni". That is clearly typographical mistake-Mr. Banerjee seeks to make out a point that because of the above the petition is strictly not in order and the present petition being a petition for committal, the application should be thrown out. I am unable to accept this contention. The notice in this case is in general terms and leaves no room for doubt what the application is. The omission of certain words in the prayer (a) of the petition is not of much importance. Both the notice and a copy of the petition have been served on the Respondent and I am satisfied that on a perusal of the notice and the petition, Sohanlal would not have any doubt as to what was the petition for. The notice is in compliance with the Rules of our Court and I am not entitled to dismiss the application on the grounds taken by Mr. Banerjee. Mr. Bose appearing for the Petitioner relies on the decision of the Appeal Court reported in Hem Bala Dasi v. Bandar Shaw (1952) 57 C.W.K. 179 in support of his contention that the petition is in order. I agree with his contention (see also Oswald, p. 194, Hals. Vol. VII, p. 40).

Next point taken by Mr. Banerjee is that along with prayer for committal, prayer for payment of maintenance is rolled up. Paragraph (c) of the notice asks for an order on the Defendant companies and the Defendant Sohanlal to pay the arrears of maintenance as also further maintenance in terms of the undertaking given by Sohanlal on behalf of himself and the companies as noticed before. Mr. Banerjee contends that prayer for committal is against Sohanlal only and not against the companies and the payment order claimed in para, (c) of the notice, however, is against both Sohanlal and the companies. It is clear that relief for contempt of a company cannot be asked for or granted. The party aggrieved can only proceed against a director or officer of the company for committal. This rolling up of payment order with prayer for committal, according to Mr. Banerjee, is not permissible in law and this vitiates the whole application and the application should be dismissed on this ground also. Mr. Banerjee has drawn my attention to Form No. 24 in Atkins Encyclopaedia, Vol. VII, p. 73. In that form I find that in the notice of committal no other relief is added. This, however, does not prove that addition of no other relief is permissible in law. I am unable to accept the contention of Mr. Banerjee that addition of the prayer for payment order along with the prayer for committal is not permissible in law or that such additional prayer vitiates the whole application to such extent as to make the petition liable to be dismissed. It should not be forgotten that the present application is a case of civil contempt as opposed to criminal contempt. This application for committal to enforce an undertaking in my judgment is in the nature of an execution proceeding and an addition of an allied prayer even if improper does not. vitiate the application. Even if an improper prayer is added which should not have been added, the Court does not dismiss the application but deals with the prayer for committal only and ignores the other prayer improperly joined. I do not understand on what principle of law an application for committal should be dismissed because of misjoinder of other reliefs. No case has been cited wherein an application for committal has been dismissed because of an improper relief being added with the prayer for committal. In the absence of such a binding authority I am not inclined to accept Mr. Banerjee''s proposition. Mr. Bose appearing on behalf of the Petitioner has drawn my attention to two cases wherein other prayer was added with the prayer for contempt. One is an unreported decision in Gajendra Nath Mukherjee v. Debendra Nath Mukherjee (1933) Suit No. 2345 of 1932 decided by Panckirdge, J. on May 11 wherein along with the prayer for committal a prayer for payment order was tacked. Mr. Page appeared for the Petitioner in that case and Mr. B.C. Ghose appeared for the contemnor. No point was taken that because of such jointer, the application was bad and should be dismissed. The other case cited is a decision reported in Carter v. Roberts (1903) 2 Ch. 312. In this case also along with the prayer for committal a prayer for receiver was tacked. In that case also very eminent Counsel appeared-Levett K.C. for the Petitioner and Rowden K.C. for the Respondent. No point was taken that tacking a prayer for receiver made the application bad. On the other hand, the Respondent submitted to a Receiving Order. If the proposition of law relied on by Mr. Banerjee is correct, then in my judgment the point would certainly have been taken by eminent Counsel appearing in both the above causes. Nor would it have escaped notice of the eminent Judges who heard the applications. Not only the applications were not dismissed but orders were made on both the above applications. In my judgment tacking of additional reliefs like prayer for payment order, receiver or injunction in addition to the prayer for committal for contempt in appropriate cases are not only not improper or illegal but is the correct procedure. Mr. Banerjee is right when he argued that extraneous matters should not be mixed up with a contempt application. But is the prayer for payment order in an application to enforce an undertaking to pay by committal extraneous? I do not think so. I think in such cases the applicant should ask for payment order in default of which the contemnor should be committed. I do not find any reason against this procedure. If the law is that an aggrieved party should in a suit ask for all the reliefs based on a cause of action or that several causes of action can be tacked in a single suit which can be tried together without causing embarrassment to the Defendant, I do not see any reason why in a petition for committal for breach of an undertaking to pay money the Petitioner should not ask for payment order. I do not find any principle of law against this procedure. Nor any authority has been cited to me against such a procedure. The fact that the contempt applications have been described as quasi-criminal in character does not in my judgment affect the question. It is to be remembered that we are dealing in this case with a civil contempt. In the case of criminal contempt it may be otherwise. It would be bad procedure to tack a civil relief in a contempt petition-which is purely criminal in character. But in a petition for civil contempt where all that the applicant desires is to enforce an order made or undertaking given in his favour (which is purely a civil relief) what reason can there be for not adding another prayer which would give the applicant complete relief? I can find none. My attention has been drawn to a passage in Oswald''s "Contempt of "Court" which seems to support the view I have taken. At p. 209 of the book the learned author states:

The notice of motion should ask for such further or other order as the circumstances of the case may require.

In my judgment to the case of breach of an undertaking to pay money, the payment order is the proper further order to be asked for.

The next point urged by Mr. Banerjee is that in any event a breach of an undertaking to pay money is not punishable by contempt. Reliance has been placed on the statement of law as made in Oswald''s book at p. 101, where it is stated that wilful disobedience to a judgment or order requiring a person to do any act other than payment of money, or to abstain from doing anything is contempt of court punishable by attachment or committal.. As stated in the said book except in the case of solicitor trustees and other persons occupying a fiduciary position an order for payment of money is not enforceable by an application for committal. Mr. Bose in reply has urged that an undertaking to pay money is different from an order to pay money simpliciter and the authority cited in the "order to pay" does not apply to a case of undertaking to pay. Even though breach of an order to pay may not be punishable by contempt breach of an undertaking to pay is contempt of court if deliberately done with full knowledge of the order. I am unable to accept this distinction sought to be made out by Mr. Bose. I find from authorities that undertaking to pay money and order to pay money have been treated on the same footing. (See, Cotton v. Heyl (1930) 1 CB, 510, 520.) It is next urged by Mr. Bose that it is not correct to say that in case of a breach of an order to pay money an application for committal would not lay in any case. It is urged by Mr. Bose that so far as order for payment of money is concerned, power to punish in England by way of contempt is restricted by the Debtors Act. In India it is restricted by the Contempt of Court Act. In England by the Debtors Act power to punish by way of committal is taken away in the case of a breach of an order to pay except in cases specified in Debtors Act. Such restrictions however, are not to be found in the Contempt of Court Act in India (see, Hals. Vol. I, p. 35 Section 51, para. 2). This argument of Mr. Bose must be accepted and I hold that breach of undertaking to pay money is punishable in India by way of contempt. The application for contempt to enforce an undertaking by way of committal is in my judgment an application in the nature of execution. In the case of an order to pay the Court will not entertain an application for committal for the simple reason that the CPC provides a method of realisation of annoy by execution. It should not be, however, forgotten that a decree or order for payment can be executed by arrest and detention in a civil prison under Order XXI, Rule 37 of the Code of Civil Procedure. No such provision is to be found in the case of a breach of an undertaking. Hence, the Court in its inherent jurisdiction to enforce an undertaking to pay money has no other method than to proceed by way of contempt. This plea in bar taken by Mr. Banerjee must also be over-ruled.

The next point taken by Mr. Banerjee is that on a proper construction of the order there was no obligation on the companies to pay maintenance. It is argued that on the face of the order it appears that Mr. Sankar Banerjee appeared for the company and it does not appear from the order that Mr. Sankar Banerjee gave any undertaking on behalf of the companies. The undertaking appears to have been given by Mr. M.N. Banerjee who was appearing for Sohanlal and not for the companies. I find, however, that Sohanlal is the director-in-charge of the companies and in fact Sohanlal instructed his counsel, Mr. M.N. Banerjee, to give the undertaking- on behalf of the companies. I find no reason to think that Sohanlal had not the authority to give the undertaking being himself the director-in-charge of the companies. That being so Mr. Banerjee his counsel was fully competent to give the undertaking to Court not merely on his own behalf but on behalf of the companies as well. In point of fact I find that the amount of maintenance has been paid so long out of the funds of the company. The company is an impersonal entity and must act through the directors or officers. In this case I find that Sohanlal is the director-in-charge and if an undertaking is to be given by the company it must be given by the director-in-charge. I find no substance in this argument of Mr. Banerjee and I reject the same. Nor do I find any substance in the contention of Mr. Banerjee that inasmuch as the undertaking is not to be found in the operative portion of the order the undertaking is not enforceable. That undertaking has been given has not been and indeed cannot be disputed. In my judgment, the undertaking need not be in the operative portion of the order. There being no dispute as to the fact of undertaking having been given by Sohanlal it has the effect of an order of the Court so far as infringement thereof may be made the subject of an application to Court to punish for its breach. As has been pointed out by Oswald at p. 108 of his book the, undertaking to be enforced need not necessarily be embodied in the order. What is sought to be enforced is not an order of the Court but an undertaking given to the Court which in law has the effect of an order of the Court.

The next point made out by Mr. Banerjee is that the undertaking recorded in the order, dated May 31, 1951 has been varied by mutual consent. For the purpose of appreciating this argument, it is necessary to note a few facts. The undertaking was given on May 31, 1951. Thereafter the maintenance covered by the undertaking has been paid Up to and including the month of October, 1953. Such payments are evidenced by vouchers of the different companies duly receipted by Baharilal. It appears from the said vouchers that some of the maintenance has been paid and received in two or more installments. Some of them have been paid before the due date but within the month for which the maintenance was due. In the case of some others maintenance has been paid and received even after due date. From these facts Mr. Banerjee asks me to infer that the undertaking given to Court has been varied by mutual consent. If that be so, Mr. Banerjee contends, no application for contempt of court would lie for breach of undertaking embodied in that order. Mr. Banerjee strongly relied on two passages in Oswald''s book at pp. 122 and 214. The passage referred to at p. 122 reads as follows:

If an arrangement is made after the judgment or order for payment under which its terms are interfered with, as by agreeing to take payment by installments or otherwise without saving the rights under the judgment or order, the right to a subsequent attachment to enforce the judgment or order will be lost.

At page 214 it is stated:

it may be an answer to the motion that the party complaining of contempt has waived it, as by way of agreeing to take by installments the money ordered to be paid in a lump sum or giving time for payment without reserving his right or otherwise.

The authority on which the above proposition is founded is a case reported in Harvey v. Hall (1873) 16 Eq. 324 and Daniell''s Ch. Practice 7th Ed., p. 227. In order to come within the above proposition Mr. Banerjee will have to prove that the original order for payment has been modified by a new agreement to take payment by installments. Secondly, he has got to prove that such agreement has been arrived at without saving the rights under the judgment or order, the right to a subsequent attachment to enforce the judgment or order. Thirdly, he has to establish this proposition applied not merely to an order of the Court but also to an undertaking given to the Court. Let me consider whether these conditions are satisfied in this case.

It is clear from the evidence before him that in any event subsequent to the order, dated May 31, 1951, the Plaintiffs Beharilal and Sohanlal were on the best of terms. Sohanlal did accommodate Beharilal in a variety of ways. He made payments in some cases before the payment was due. Over and above the payment of maintenance, Sohanlal made other payments to meet the requirements of Beharilal amounting to u/s 9, 568-8 which said amount does not appear from the receipts exhibited as having been made on account of maintenance. Whenever money is needed by Beharilal to meet some pressing needs Sohanlal did come forward and make the advances. In the background of these facts I am not prepared to hold on the evidence relied on by Mr. Banerjee that a definite arrangement was arrived at between Sohanlal on the one part and Beharilal and his mother on the other whereby the parties agreed that the maintenance may be paid by instalment or that the rights of Beharilal and his mother by reasons of the undertaking given by Sohanlal on May 31, 1951, have been given up or that Beharilal and his mother have agreed not to enforce the said undertaking. The evidence of the vouchers prove nothing more than this that in some cases for convenience of either party sometimes maintenance has not been taken in a lump but in instalments, sometimes before the amount became due and in a few cases after. This is not enough evidence to enable the Court to hold that the Plaintiffs have agreed to give up their rights vested in them by reason of the undertaking given by Sohanlal. Further, it should not be forgotten that the receipts have been given by Beharilal alone and I am not prepared to hold on the evidence before me that Beharilal had the authority of his mother to give up her rights under the undertaking given by Sohanlal. I would require much stronger evidence than the one referred to by Mr. Banerjee to hold that Beharilal and his mother gave up their rights under the undertaking recorded in the order, dated May 31, 1951. It is to be noted that this plea has never been specifically taken in the affidavit of Sohanlal. Nevertheless, it being a contempt application I allowed Mr. Banerjee to argue the point even though it has not been specifically taken in the affidavit. It has been argued by Mr. Bose that the passage in Oswald and the authorities relied on by Mr. Banerjee have no application to the case of undertaking. It has got reference to an order for payment made by the Court. The proposition relied on and set out above is somewhat analogous to adjustment of decree and order with which we are familiar. If a decree or order has been adjusted by an agreement between the parties clearly the only decree or order that is capable of execution is the adjusted decree or order and the original decree or order without adjustment is no longer enforceable. It is easy to understand this principle. But it is argued that undertaking is not an order of the Court. It is voluntarily given by a party on the basis of which an order is made or; not made by the Court. It is in the nature of a bargain entered into by a party with the Court and it being a bargain entered into by a party with the court, the party is not entitled to have the undertaking varied by another bargain not with the Court but with the other party to the proceeding. This is not permissible in law. The only way in which the party can be relieved of the undertaking is to apply to the court to be relieved of the undertaking and so long as he is not relieved of the undertaking, he is bound to act in terms of the undertaking given by him to Court. Reliance has been placed on the observation of Morton, L.J. in the case of Cutler v. Wandsworth Stadium Ltd. (1945) 1 All E.B. 103, 105. In this case a party giving an undertaking made an application to vary the undertaking. The Court held that undertaking cannot be varied although the Court can release a party from his undertaking and take a fresh undertaking from him. At p.- 105 Morton, L.J. observed:

In the first place, the court does not vary an undertaking given by a litigant. If a litigant gives an undertaking and desires to be relieved from the undertaking, the application should be an application for release. The undertaking in this case was given until the trial of action or further order and an order of the court was of course necessary before the giver of the undertaking could be released. Litigants are not ordered to give these undertakings; they choose to give them and an application to have an undertaking already given varied is wholly wrong in form.

I have not the slightest doubt that so long as the party is not released of the undertaking, it should be acted upon strictly by the party giving it and if any variation is needed, the party giving the undertaking should make an application to be relieved of the undertaking and offer to give a fresh undertaking. But in a case where such an order has not been obtained and the undertaking subsists, but the party giving the undertaking enters into a binding agreement with the party in whose favour undertaking is given in respect to the subject-matter whereby the performance of the undertaking is dispensed with, would the Court in such a case enforce the undertaking by an order for committal? I think not. Undertaking may be a bargain by the party giving the undertaking with the Court, but I fail to understand on what principle it can be held to be superior to an order of the Court. There are authorities for the proposition that an undertaking entered into or given to the Court is equivalent to an injunction-prohibitory or mandatory, as the case may be (see, Oswald, p. 108; Halsbury (Hailsham Edition) Vol. VIII, p. 126, Article 187; Neath Canal Company v. Ynisarwed Resdum Colliery Company (1875) L.R. 10 Ch. Ap. 450. and other cases referred to in Oswald and Halsbury). Provisions are to be found in our Code Order XXI, Rule 32 to enforce an injunction by arrest and attachment. Undertakings cannot be enforced by an execution petition and Order XXI, Rule 32 of the CPC would not apply. But the undertaking can be enforced by an application for committal and such an application is in the nature of execution to enforce a civil right in whose favour undertaking is given. The undertaking gives rise to a civil right and the application for committal is nothing other than to enforce a civil/right. I have not been able to appreciate any difference in substance between an undertaking and injunction or any difference between an application for committal in the case of breach of undertaking and an application for arrest under Order XXI, Rule 32 of the CPC in the case of breach of injunction. In that view of the matter, I hold that if subsequent to the giving of an undertaking the parties, viz., the giver of the undertaking and the party for whose benefit undertaking is given enter into a binding agreement whereby the performance of the undertaking is dispensed with, the Court would not entertain an application for com initial made by the party in breach of the agreement arrived at subsequent to the undertaking given. In the present case, however, the undertaking has not been affected in anyway and in my judgment the present application by the Plaintiff is maintainable.

This disposes of all the pleas in bar to the application taken on behalf of Sohanlal. But before I take up the question as to whether in this case there has been a breach of undertaking given, I would like in deference to the arguments advanced from the bar to record my opinion on a question very much emphasised by the Learned Counsel appearing on behalf of Sohanlal. It is pointed out that a contempt petition is a quasi-criminal proceeding and the alleged contemnor is in the position of an accused. It is a case in which the liberty of the subject is involved and hence before making an order on the application the Petitioners who are in the position of prosecutors must prove their case to the hilt. It is said that in trying this case, I should keep in mind the principles of criminal law. This argument is advanced on the basis of observations contained in many judgments and text books that application for committal is quasi-criminal in character. I have already indicated in the earlier part of this judgment my view that an application to enforce an undertaking given in a civil action is to enforce a civil right and is purely civil in character. The distinction between civil and criminal contempt is recognised both in England and India. It is not necessary to cite all the cases where this distinction has been brought out. The latest decision on the point is the decision of our Appeal Court in Hem Bala Dasi v. Sundar Shaw Snpra at- pp 183, 184. At p. 183 Chakravatti, C.J. states:

Contempt of Court consists either in words or Acts obstructing the administration of justice in which ease it is a criminal contempt or in disobedience to the orders or processes of the Court, so as to cause private injury in which case it is a civil contempt or in the language of English law contempt in procedure.

Again at p. 184:

Whether the contempt in a particular case is civil or criminal contempt or partakes of the nature of both is often a question of great refinement, but this at least is well established that breach of an undertaking given to court to do or not to do a certain thing in the interest of private party is mainly arid substantially a contempt in procedure or civil contempt.

In such cases "The party prejudicially affected by the act "constituting contempt has a right to initiate proceedings and "demand that the contemnor be committed to prison." That is so because the true nature of the remedy is in such cases a relief "granted by way of execution to applicant" (Edwards, on Execution p. 244). In the language of Lord Justice Cotton in O''Shea v. O''Shea (1890) 15 P.D. 59 a motion for committal "is really only a "procedure to get something done in the action." If that is the Teal nature of an application for committal, viz., to get something done in the action and the relief is granted by the Court in such application being in the nature of execution, I do not see why the Court should in dealing with an application for civil contempt import the principles of criminal law at all. The fact that in such applications the liberty of the subject is involved does not require the Court to apply ^the principles of criminal law in dealing with such applications. Liberty of the subjects are involved in execution of processes in civil actions also.

For instance under Order XXI, Rule 37, a judgment-debtor is liable to be arrested. So also under Order XXI, Rule 32 a judgment-debtor is liable to be arrested for having committed a breach of a decree or order of injunction. In both these cases the liberty of the subject is involved just in the same way as in an order for committal. No court has been called upon to apply the principles of criminal law in dealing with an application under Order XXI, Rule 37 or Order XXI, Rule 32. If not, why should the court is called upon to apply principles of criminal law in dealing with an application for committal in a case of civil contempt? It is argued that the applicant in the case of contempt must prove his case to the hilt and that if there is any doubt, it must ensure to the benefit of the contemnor. If all that is meant by this observation is that the applicant in a case of civil contempt must prove that notice has been properly served according to law, that the contemnor has violated the order or undertaking with full knowledge of the order or undertaking and that such violation of the order was deliberate and wilful. I would at once agree, as I intimated to Mr. Banerjee at the time of argument. But I would have to be satisfied on these points, not because it is enjoined by criminal law but because the Petitioner must prove his case before he is entitled to an order for committal. If service of the order is not effected to my satisfaction according to law, if I have doubt that the contemnor had knowledge of the order violation of which is the act complained of and if I have the slightest doubt that the contemnor is guilty of having committed any breach of the order, I would certainly not be justified in making an order for committal. Again, if I find that though in fact the order or undertaking has been violated but that such violation was not wilful or deliberate, then I will have to hold that the contemnor though guilty of technical contempt is not guilty of pimishable contempt, that is contempt minishable by "committal.

The question next to be considered is whether there has been a breach of undertaking on the part of Sohanlal. The undertaking was to make payment of Rs. 1,200 per month by way of maintenance on or before the 15th of the next following month. There is no dispute that no payment has been made in terms of the order of maintenance for the month of November, 1953, onwards. The case of Sohanlal is that from January, 1952 to October 28, 1953 he made various payments to Beharilal aggregating to Rs. 9,568-8 on account and Beharilal agreed that the said advance was to be appropriated and adjusted towards future maintenance payable to the Plaintiffs (para. 8 of Sohanlal''s affidavit). Beharilal admits to have received the said sum of Rs. 9,568-8 but he disputes the agreement alleged by Sohanlal. It is because of this dispxited question of facts haying been raised in the respective affidavits of the parties that Sarkar, J. felt that the application should be set down for trial on evidence. On this point Sohanlal tendered his own evidence and Beharilal tendered evidence in denial of Sohanlal''s case. I am unable to accept the agreement alleged by Sohanlal. The vouchers covering the payment of the said sum of Rs. 9,568-8 do not show that the payments were made on account of maintenance. The vouchers issued by Sohanlal is in following terms:

Pay to Shri Beharilal Murarka the sum of Rs. 1,200 on account. Estate Lalu Lal Murarka.

Vouchers exhibited in this proceeding covering the payments made on account of maintenance, expressly states that such payments were made on account of maintenance. If the other payments also were to be adjusted from future maintenance, why should not the vouchers record that these were to be adjusted with future maintenance? Prior to this petition there was correspondence between the Plaintiffs'' attorney and Sohanlal. In answer to the demand for payment of the arrears of maintenance made by Beharilal''s attorney on March 25, 1954, Sohanlal gave a reply on March 27, 1954. In the said letter Sohanlal made the case that in taking such advance Beharilal agreed that the amount was to be adjusted "against future maintenance payable to the Plaintiffs. This letter suggests that the alleged undertaking to adjust took place at the time when the advances were made. It appears that the first two advances of Rs. 1,500 and Rs. 2,750 were made on January 15, and November 8, 1952, respectively. At that time admittedly Beharilal was not in Calcutta. Therefore, it is clear that at least so far as these payments are concerned Beharilal could not have given the undertaking personally. It appears that these sums of Rs. 1,500 and Rs. 2,750 were received on behalf of the Plaintiffs by Beharilal''s maternal uncle one Ganderiwalla. The alleged undertaking could not have been given by Beharilal nor is it Sohanlal''s case that the undertaking was given by Ganderiwalla on''behalf of the Plaintiffs. It will be noticed that in para. 8 of the affidavit-in- opposition the date of the agreement has not been given. In the evidence, however, Sohanlal made out the case for the first time that this agreement was arrived at on or about December 15, 1951, that is just before Beharilal left Calcutta and pursuant to that agreement moneys were advanced from January, 1952 onwards-the first two payments having been made to Ganderiwalla and subsequent payments to Beharilal. This case was made for the first time in Sohanlal''s evidence. It is curious that when Beharilal tendered his evidence in the box this case-was never put to Beharilal. In that view of the matter I feel unable to accept the agreement sought to be proved by Sohanlal. Further, it is not clear what exactly the agreement was. Was it the agreement that Sohanlal would be entitled to appropriate the future maintenance without any further reference to Beharilal or adjustment would be effected subsequently with the consent of the Plaintiffs? But apart from the reasons stated above the story of Sohanlal is not acceptable.

The suit was instituted at the time when Beharilal was a minor and the suit was instituted by a next friend. As Beharilal was growing up and when he became a major, Sohanlal began to cultivate Beharilal and there is evidence to the effect that Sohanlal was very friendly and intimate with Beharilal. He was acting as his patron and benefactor. He found him a berth in his office so that Beharilal may get training in business. It is admitted that Beharilal''s mother was all along ailing and the amount of maintenance that Beharilal was receiving was not sufficient to meet the Plaintiffs'' needs. Whenever Beharilal needed money Sohonlal accommodated him. Sohanlal admitted that there was an arrangement between Beharilal and himself that the case should be conducted in such a manner by Beharilal that would not prejudice Sohanlal''s interest and the fight between Beharilal and Sohanlal would be a mock fight. As the suit progressed however, it is found that the fight was not a mock fight but a serious fight. This state of affairs developed in November and as noticed before the maintenance from November was stopped by Sohanlal. There is considerable force in the suggestions made by Mr. Bose that maintenance was stopped because of the reasons given above and the agreement alleged in para, 8 of Sohanlals affidavit has been manufactured to create some sort of justification for stopping the maintenance. In any event, I am satisfied that having regard to the anxiety of Sohanlal to keep Beharilal on his side so far as the present suit is concerned, Sohanlal did advance the said sum of Rs. 9,568-8 which Beharilal needed without any condition. It may be that at the back of Sohanlal''s mind there was this idea that he could realise this advance by adjusting from maintenance. In any event Beharilal was not a pauper, the Plaintiffs had substantial beneficial interest in the companies and money advanced can always be recovered. Looking at it from the standpoint of Beharilal, it is impossible for him to enter into such an agreement. Sohanlal himself admits that maintenance paid to the Plaintiffs were not sufficient to meet their needs. In answer to my question No. 248 Sohanlal admitted that the maintenance of Rs. 1,200 was not enough for Beharilal and his mother. Then I asked "that being so, how he was to repay Rs. 9,000 out of the "maintenance." He could not give a satisfactory reply. I am satisfied that there was no agreement as pleaded by Sohanlal in para. 8 of his affidavit. It was a sort of accommodation loan given by Sohanlal out of the company''s till. Mr. Bose has contended that the "alleged agreement operates as an assignment of future maintenance which is not permissible in law. u/s 6 of the Transfer of Property Act right to future maintenance cannot be transferred. So also the right to future maintenance cannot be attached in execution of a decree u/s 60 of the Code of Civil Procedure. The policy of law is that right to future maintenance can neither be transferred nor can future maintenance be seized in execution. In so far, therefore, as the agreement alleged by Sohanlal operates as an equitable assignment of future maintenance in favour of Sohanlal, that is bad and unenforceable in law. Further in any event Musst. Ginni Debi was not a party to the agreement alleged by Sohanlal nor has it been proved that Beharilal had any authority to enter into the agreement on behalf of Musstt. Ginni Debi. I am not prepared to say that this argument is without any substance. But holding as I do that there was no such agreement as pleaded by Sohanlal, it is not necessary for me to record my decision on the point of law raised. It follows that Sohanlal had no justification in not paying maintenance to the Plaintiffs at the rate of Rs. 1,200 per month from November onward in terms of the solemn undertaking given to the Court on May 31, 1951. It should be remembered that the undertaking to pay was unconditional. 1 am, therefore, bound to hold that Sohanlal and the Defendant Companies should pay to the Plaintiffs all maintenance in arrear from November, 1953 up to date and also future maintenance as and when they become due in strict performance of the undertaking given to the Court and I make an order accordingly. Such payment of arrears maintenance must be made within four days from this date.

Mr. Bose has strongly urged that I should make an order that in default Sohanlal should be committed to prison. It is apprehended by Mr. Bose''s clients that in spite of this order Sohanlal would not pay and the Plaintiffs would-have to take further steps and made to suffer further harassment by Sohanlal. I have no reason to think that Sohanlal will not comply with this order of payment. He might have thought wrongly that he was entitled to adjust the advance made by him to the plantiffs from the future maintenance. He might have been wrongly advised and pursuant to that advice stopped paying maintenance, unmindful of the fact that by so doing he was committing a breach of undertaking given by him solemnly in Court on the faith of which the Court made practically no order on the application for appointment of Receiver. Now, that the mistake has been pointed out to him, I am sure that he will not hesitate to make payment in terms of this order.

Mr. Bose has, however, urged me to make a committal order m default of payment. No doubt there are some authorities which suggest that once deliberate breach of order or undertaking is proved, the Petitioner becomes entitled to a committal order exdebito justified. I think, however, that the Court has always discretion in the matter and having regard to the fact that Sohanlal is not of good health and is suffering from high blood pressure, I would not be justified in making a committal order. At the same time I think Plaintiffs must be assured that the order for payment is complied with and the Plaintiffs suffer no further harassment. The default order for committal asked by Mr. Bose is "in terrorem". He is justified in thinking that if default order is made the order will be complied with-otherwise not. But apart from committal is the Court powerless to make any other order "in terrorem" to get something done in the action to use the phrase of Cotton, L.J. in O''shea v. O''shea (8). I find from the authorities cited before me that in a contempt application a prayer for Receiver was tacked with a prayer for committal and in fact a Receiver was appointed in that application by consent. If a Receiving order can be tacked with an application for committal and an order made thereon, an order for injunction can also be asked in such application and granted by the Court. I think the proper order to pass in this case is that in default of payment as directed by this order, the Defendant Sohanlal be restrained by an injunction from acting as director or do anything on behalf of the companies. I think this to be the "most appropriate order because if Sohanlal does not pay he is preventing the company from making payments to the Plaintiffs which the companies solemnly undertook to do before this Court. This fact alone disentitles Sohanlal to act on behalf of the company so long as the undertaking to pay remains undischarged. I am not unmindful of the fact that there is no prayer for injunction in this application but there is the general prayer and I think that I should issue an injunction, under prayer for general reliefs claimed in this application. For what would happen if I do not make an order now? If payment is not made as directed in this order Plaintiffs would be entitled to come with an application for injunction and Receiver and holding the view as I do, I will not have any hesitation to issue at once an order of injunction. Hence to avoid a further application, I think, it is proper for me to make a default order for injunction in this application and I make an order accordingly. In default of payment as aforesaid the Defendant Sohanlal be restrained by an injunction from acting as director of the companies or do any act on behalf of the companies.

As I have been assured by Learned Counsel that Murarka matters never end in one Court, I should make provision for that contingency. Opportunity should be given to Sohanlal to get the appropriate order from the Appeal Court, should he be minded to prefer an appeal against this order. On the other hand, I have to look to the interest of the Plaintiffs who are certainly being seriously inconvenienced in not getting their maintenance. The learned Standing Counsel appeared to recognise it and offered at the early stage of the hearing of this application to pay half the amount due being the share of Musstt. Ginni Debi. I would, therefore, stay the operation of this order provided Sohanlal deposits within four days the maintenance in arrears with the Plaintiffs'' solicitors Messrs. N.C. Bural and Pyne. If the money is deposited as aforesaid, Messrs. N.C. Bural and Pyne would pay half the amount to Musstt. Ginni Debi forthwith and hold the balance. If an order is not obtained from the Appeal Court within three weeks from date Messrs. N.C. Bural and Pyne are directed to pay to the Plaintiff Beharilal the balance held by them. If an order is made by the Appeal Court, the money so held would be subject to any order the Appeal Court might make in the said appeal.

Sohanlal is ordered to pay the costs of this application to be taxed as of a suit. He would be entitled to pay the costs out of the assets of the company.