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CASE NO.:

Contempt Petition (civil) 148 of 2003

PETITIONER:

Rama Narang

RESPONDENT:

Ramesh Narang & Anr

DATE OF JUDGMENT: 12/04/2006

BENCH:

Ruma Pal, B.N. Srikrishna & Dalveer Bhandari

JUDGMENT:

J U D G E M E N T

CONTEMPT PETITION NO.148 OF 2003

IN

CP NOS. 265-267 OF 1999 IN CP NO.209 OF 1998

IN

CIVIL APPEAL NO. 366 OF 1998

RUMA PAL, J.

In this contempt petition the petitioner alleged that the

respondents 1 and 2 have violated this Court's orders dated

12th December, 2001 and 8th January, 2002 disposing of

Contempt Petition (Civil) Nos. 265-267/1999 in Contempt

Petition (Civil) No.209 of 1998 in Civil Appeal Nos. 366/1998,

603/1998 and 605/1998. The petitioner and the respondents

represent two groups of members of one family. The petitioner,

Rama Narang is the father of Ramesh and Rajesh the two

respondents herein. They are the children of his first wife,

whom he divorced in 1963. The petitioner also has children by

the second wife. Disputes have been raging between the

parties for over a decade. Several suits and counter suits have

been filed. In contempt proceedings filed by the respondent

No.1 against the petitioner an order was passed by this Court

on 12th December, 2001 to the following effect:-

"The following cases are pending between

the parties who are parties in the present

proceedings before us one way or the

other. We are told that all the parties

have settled their disputes in respect of

all the litigations specified below.

1. O.S. No.3535 of 1994 before the

Bombay High Court.

2. O.S. No.3578 of 1994 before the

Bombay High Court

3. O.S. No.1105 of 1998 before the

Bombay High Court

4. O.S. No.3469 of 1996 before the

Bombay High Court

5. O.S. No.1792 of 1998 before the

Bombay High Court

6. O.S. No.320 of 1991 before the

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Bombay High Court

7. Company Petition No.28 1992 before

the Bombay High Court

Before the Principal Bench, Company

Law Board, New Delhi.

8. Arbitration Suit No.5110 of 1994

before the Bombay High Court.

Today they filed a document styled it as

"MINUTES OF CONSENT ORDER" signed

by all the parties. Learned counsel

appearing on both sides submitted that

all the parties have signed this document.

Today except Mona Narang and Ramona

Narang (two ladies), all the rest of the

parties are present before us when these

proceedings are dictated. As for Mona

Narang and Ramona Narang learned

counsel submitted that Mona Narang had

affixed the signatures and the power of

attorney holder of Ramona Narang has

signed the above document in his

presence. This is recorded.

Both sides agreed that all the suits can

be disposed of in terms of the settlement

evidenced by "MINUTES OF CONSENT

ORDER" produced before us. For

disposal of those cases and/or for

passing decrees in them we have to

pronounce the final formal order in terms

of the settlement now produced before us.

We, therefore, withdraw all the aforesaid

suits to this Court under Article 139-A

of the Constitution of India.

Prothonotory and Senior Master of the

Bombay High Court is directed to

transmit the records in the above

mentioned suits by special messenger to

this Court so as to reach the Registry

here within ten days from today. The

Bench Officer of the Principal Bench of

the Company Law Board, New Delhi is

directed to forward the records relating

to company petition No.28 of 1992 to the

Registry of this Court so as to reach the

Registry within ten days from today.

All the parties have undertaken before

us that they will implement the terms of

the "MINUTES OF CONSENT ORDER" on

or before 1.1.2002 and that no further

time will be sought for in the matter.

Clause (f) of the compromise relates to

the operation of the bank accounts. That

clause will come into force from today

onwards.

All the afore-mentioned suits and the

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company petition will be posted for final

formal orders on 8.1.2002 at 10.30 a.m.

along with these contempt proceedings."

The Minutes of the Consent Order referred to in the order

dated 12th December, 2001 was as an agreement between the

parties, which was duly executed by them.

The bone of contention between the parties is primarily

the control of a company known as NIHL. The consent

minutes provided inter alia:-

(a) With effect from 4th May, 1999 Rama,

Ramesh and Rajesh are the only

Directors of NIHL (and its

subsidiaries). Any increase in the

Board of Directors shall be with the

mutual consent of Rama and

Ramesh/Rajesh.

(b) None of the Directors (Rama,

Ramesh and Rajesh) can be removed

from directorship.

(c) Rama and Ramesh shall continue to

be in joint management and control

of NIHL and Rajesh shall continue

to be the Permanent Whole Time

Director thereof in charge of day to

day operations/management.

(d) No decision shall be adopted

concerning or affecting the said

Company (and its subsidiaries)

without the consent of Rama and

Ramesh (or Rajesh) in writing. It is

further clarified and agreed that

save and except as provided herein

no prevailing decisions including

appointment of Directors/

Executives or any other persons

shall continue unless Rama and

Ramesh (or Rajesh) consent to the

same in writing.

(e) All the collections coming in cash

shall continue to be remitted in the

bank accounts of the Company and

all transactions will only be made in

the form of cheques and/or as may

hereafter be agreed to between

Rama and Ramesh (or Rajesh).

(f) All bank accounts of the Company

shall continue to be operated jointly

by any two out of the three Directors

namely Rama, Ramesh and Rajesh

and/or as may hereafter be agreed

to between Rama and Ramesh(or

Rajesh). If the amount of any

transaction exceeds Rs. 10 (ten) lacs

the same shall be undertaken

through a cheque signed jointly by

Rama and Ramesh/Rajesh."

The consent terms also provide for the performance of

various actions by the parties which are not necessary to be

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recorded. It is sufficient to note that all the agreed actions

were to be performed by the petitioners group before 1.1.2002.

When the matter appeared in the list on 8.1.2002 the

Court recorded that all the eight suits and proceedings

withdrawn from other courts had been transmitted. The

appellant's suits were disposed of in terms of the minutes of

the consent order incorporated in the proceedings passed by

the Court on 12.12.2001. The order dated 8th January, 2001

further provided:-

"All the above are now being disposed of

in terms of the Minutes of Consent Order

incorporated in the proceedings passed

by us on 12.12.2001.

The decree will be drawn up in terms of

the Minutes of the Consent Order."

On the allegation that the two respondents had violated

the terms of the orders specially the clauses 3(c), (d) and (f) of

the consent minutes, this contempt petition has been filed. It

is also the case of the petitioner that the violations of the

orders had been admitted by the respondents. According to

the petitioner the violations amounted to a willful disobedience

of the orders dated 12.12.2001 and 8.1.2002 and were

punishable under this Court's power of contempt.

Initially a notice was issued by this Court on the

petitioners' application on 9th May, 2003 to the respondents

for ascertaining the facts and to enable them to respond to the

averments in the petition. After the filing of the responses, on

15th September, 2003, a notice in contempt proceedings was

issued to the respondents.

In an attempt to bring the disputes between the parties

to amicable end, the Court appointed a retired Chief Justice of

Orissa High Court as a mediator. The mediation was however,

unsuccessful. Since the settlement of disputes was not

possible, the proceedings before the mediator were terminated

and the contempt petition was directed to be listed for hearing.

Before taking up the question whether the respondents

are guilty of contempt as alleged by the petitioner, the

preliminary objection raised by the respondents as to the

maintainability of the contempt petition are addressed.

According to the respondents, the consent order did not

contain an undertaking or an injunction of the Court and

could not be the basis of any proceedings for contempt.

Reliance has been placed on the decision of this Court in Babu

Ram Gupta Vs. Sudhir Bhasin And Anr. 1980(3) SCC 47;

Bank of Baroda Vs. Sadruddin Hasan Daya And Anr. 2004

(1) SCC 360; R.N. Dey And Ors. Vs. Bhagyabati Pramanik &

Ors. 2000(4) SCC 400; Rita Markandey Vs. Surjit Singh

Arora 1996 (6) SCC (14); Nisha Kanto Roy Chowdhury Vs.

Smt. Saroj Bashini Goho AIR 1948 (Cal.) 294; Bajranglal

Gangadhar Khemka & Anr. Vs. Kapurchand Ltd.AIR 1950

(Bombay), 336. According to the respondents in the absence

of an undertaking given to the Court and an allegation that

such undertaking had been violated, this Court could not

exercise jurisdiction over a mere violation of the terms of

consent order which may have been incorporated in the

consent order. It was also argued that the order dated

12.12.2001 has in fact been carried out and implemented

within the time specified. According to the respondents the

order dated 12.12.2001 had merged in the final order dated

8.1.2002. Reference has been made to the language of the

order dated 8.1.2002 which the respondents submitted, was

the only operative order and which did not in fact contain any

undertaking of the respondents at all. The respondent's case

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is that the mere imprimatur of the Court to a consent

arrangement was not sufficient to attract the contempt

jurisdiction. Only such consent orders which are coupled with

undertakings or injunctions by the Court could be the subject

matter of contempt proceedings. The respondents have

argued that in the facts of this case the final order does not

reflect any undertaking except the petitioner's undertaking to

Rakesh, who was the brother of the respondents 1 and 2. They

have also submitted that the contempt power must be strictly

construed. Finally, it was submitted that if this Court holds

that the earlier decisions relied upon by the respondents had

been wrongly decided, the same should not serve to proceed

against the respondents, because when the actions

complained were done the law did not treat those actions as

contumacious.

Learned counsel appearing on behalf of the petitioners

has submitted that a decree for injunction whether directory

or prohibitory can only be enforced by way of contempt

proceedings. It was argued that there was nothing in principle

to draw a rational distinction between the orders passed on

merits and orders passed by consent. Our attention was also

drawn to the language of the order dated 12.12.2001 which

directed clause (f) of the minutes to be enforced from that date

onwards. In fact the various suits referred to in the order

dated 8th January, 2002 had been decreed in terms of the

mutual consent order. It has also been submitted that all the

relevant clauses in the consent minutes could be read both as

prohibitory and directory. The petitioner has submitted that

in a civil contempt, the issue is not so much the punishment

of the alleged contemnor, but the execution of the decree.

According to the petitioner, all the decisions cited by the

respondents were distinguishable. Reliance has been placed

on the definition of civil contempt in the Contempt of Courts

Act, 1971 as well as on the decisions in Rosnan Sam Boyce

Vs. B.R. Cotton Mills Ltd. & Ors. 1990 (2) SCC 636; C.H.

Giles V. Morris & Ors. 1972 (1) All ER 1960; and Salkia

Businessmen's Association & Ors. Vs. Howrah Municipal

Corporation & Ors. 2001 (6) SCC 688.

Prior to the enactment of the Contempt of Courts Act,

1971 (referred to hereafter as the Act), the field was governed

by the Contempt of Courts Act, 1952 which did not contain

many of the provisions which have been introduced for the

first time by the 1971 Act. Till the 1971 Act, the policy of the

legislature was to leave the formulation of the law of contempt

to the Courts. The provisions of the Contempt of Courts Act

1952 were, therefore, broadly framed. Consequently, there

was often a conflict between the practice in a Court and the

judicial decisions and sometimes conflict between the views of

the different High Courts on the law applicable.

An instance of such conflict is the case of Nisha Kanto

Roy Chowdhury V. Smt. Saroj Bashini Goho AIR 1948 Cal

294. In that case, a suit had been filed for ejectment by the

respondent of the appellant. The suit was not contested.

Terms of compromise were drafted and a decree passed in

terms of the compromise. One of the clauses of the

compromise contained an undertaking of the appellant to

remove the image of the deity which had been installed by the

appellant together with the structures around the deity on

demand by the respondent-landlord. However, when the

respondent called upon the appellant to remove the image, the

appellant refused. The respondent then filed an application

before the High Court to commit the appellant for contempt of

Court on the ground that he had broken an undertaking

which had been given to the Court that he would remove the

image when called upon to do so by the respondent. The

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Single Judge allowed the application and committed the

appellant holding that he had violated the order of the Court.

On appeal, however, the Division Bench differed with the

views expressed by the learned Single Judge. It was held that

the clause which recorded the appellant's undertaking to

remove the image did not state that the defendant undertook

"to the Court" to remove the image. The word "undertakes"

was construed to mean "formal promise or pledge". It was

held that the appellant had thus merely promised or pledged

the respondent to remove the image. The Court was no party

to that promise at that stage. It was also said that:

"It must be remembered that a

compromise decree is nothing more

than an agreement of the parties

with the sanction of the Court

super-added. It has really no

greater sanctity than the agreement

itself. It certainly cannot mean

anything more than the agreement

itself."

When it was pointed out that the practice on the original

side of the High Court was to record an undertaking to the

Court in that manner and that this practice had been

endorsed in several earlier decisions, the Division Bench

opined that if that was so then "sooner the practice is

stopped is better". It was affirmed that if it was the intention

of the parties that an undertaking should be given to the

Court then the compromise should have made it clear that

such was the case.

A different view was taken by the Division Bench of the

Bombay High Court in Bajranglal Gangadhar Khemka and

Anr. V. Kapurchand Ltd. AIR 1950 (Bom.) 336. In that

case, a suit for specific performance by execution of a lease

was compromised and consent terms were filed in Court and

an order passed thereon. One of the terms in the compromise

recorded an undertaking by the defendants to have a third

party joined as a confirming party to the lease which the

defendant had agreed to execute in favour of the plaintiff.

The defendant failed to execute the lease. The plaintiff took

out proceedings for execution and the lease was executed by

an officer of Court. The defendant then refused to get the

third party to confirm the lease in terms of his undertaking.

The plaintiff took out an application for contempt of Court.

The Single Judge allowed the application holding that the

defendant was guilty of willful default and asked the

defendant to carry out the undertaking within one month

failing which a warrant of arrest would issue. In the appeal

preferred by the defendant, it was contended by him that no

undertaking was given by the defendant to Court. Reliance

was placed on the decision of the Calcutta High Court in

Nisha Kanto's case. The Division Bench rejected the

submission and dismissed the appeal saying:

"We are not prepared to accept a

position which seems to us contrary

to the long practice that has been

established in this Court."

The Court opined that:

"\005\005\005\005\005\005 the expression

"undertake" has come to acquire

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through long practice, a technical

meaning. In all orders and decrees

of the Court, whenever the

expression "a party undertakes"

has been used, it has always borne

the meaning that the undertaking

has been to the Court.

What is more, it has been held by

Bhagwati J.--- an opinion with

which I entirely agree\027that it has

been the long standing practice on

the original side that, whenever

counsel wishes to give an

undertaking to the Court, he never

expressly uses the words " to the

Court" but merely states that he

undertakes on behalf of his

client\005."

Accordingly it was concluded:

"\005.\005.we can only construe the

undertaking given by the defendants

as an undertaking given to the

Court and not given to the other

side\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005\005The very fact that the Court

passed a decree after an

undertaking was embodied in the

consent terms clearly shows that

the Court did sanction a particular

course; and that course was the

putting of its imprimatur upon the

consent terms. The Court was led

to pass an order upon the

defendants to execute a lease in

view of the fact that an undertaking

was given by the defendants to get

the Paradise Cinema, Limited, to

join the lease."

The view expressed by the Bombay High Court has, in

our opinion, been approved by this Court in Bank of Baroda

V. Sadruddin Hasan Daya 2004 (1) SCC 360. The Calcutta

High Court's judgment to the contrary in Nisha Kanto Roy

Chowdhury (supra) does not therefore correctly reflect the

law.

In the face of such apparent divergence, the Sanyal

Committee was set up and asked to examine the law of

contempt with a view to its clarification and reforming it

wherever necessary. The present statute is the outcome of

those suggestions.

The Sanyal Committee Report which preceded the

framing the enactment of the Act had opined:

"The 1952 Act is sound as far as it

goes. While its provisions may be

retained, its scope requires to be

widened considerably."

The Act has been duly widened. It provides inter-alia for

definitions of the terms and lays down firmer bases for

exercise of the Court's jurisdiction in contempt. Section 2(b) of

the Contempt of Courts Act, 1971 defines civil contempt as

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meaning "willful disobedience to any judgment decree,

direction, order, writ or other process of a Court or willful

breach of an undertaking given to Court". Analysed, the

definition provides for two categories of cases, namely, (1)

willful disobedience to a process of Court and (2) willful breach

of an undertaking given to Court. As far as the first category

is concerned, the word "any" further indicates the wide nature

of the power. No distinction is statutorily drawn between an

order passed after an adjudication and an order passed by

consent. This first category is separate from the second and

cannot be treated as forming part of or taking colour from the

second category. The legislative intention clearly was to

distinguish between the two and create distinct classes of

contumacious behaviour. Interestingly, the Courts in England

have held that the breach of a consent decree of specific

performance by refusal to execute the agreement is punishable

by way of proceedings in contempt (see C.H. Giles and

Company Ltd. Vs. Morris and Ors. 1972 (1) All ER 960).

The two decisions of the Calcutta and Bombay High

Court are limited to the second category of cases mentioned

against Section 2(b) of the 1971 Act. Incidentally, nether of

the decisions held that a violation of breach of any other

terms of a consent order would not amount to contempt if it

were willful.

We proceed on the basis that no undertaking was given

to Court by the respondents in the consent minutes and that

therefore there was no question of their violating such

undertaking. The only question is, whether the respondents

could be called upon to answer proceedings in contempt for

willful disobedience to this Court's orders dated 12th

December 2001 and 8th January 2002.

After the Act came into force, in 1980 this Court was

called upon to dispose of an appeal filed under Section 19 of

the Act against a decision of the Division Bench of the Delhi

High Court convicting the appellant under Section 2(b) of the

1971 Act and sentencing him to prison. The case Babu

Ram Gupta V. Sudhir Bhasin 1980 (3) SCC 47, arose out of

a dispute between the partners. The partnership deed

contained an arbitration clause. An application was filed by

one of the parties under Section 20 of the Arbitration Act.

Pending the application, a receiver was appointed. An appeal

was preferred from this order. A consent order was passed

appointing 'X' as the receiver. The appellant was then in

possession of the property. He did not hand over possession

of the property to the receiver. An application was filed

alleging that the appellant had committed a serious breach of

the undertaking given to the Court to hand over possession

to the receiver. The High Court had so found. This Court

construed the consent order and came to the conclusion that

it did not contain any express direction to the appellant to

hand over possession of the property to the receiver It was

held that no undertaking had been given by the appellant at

all. The High Court had proceeded, according to this Court,

erroneously by implying an undertaking from the consent

order itself. In that context, this Court said:

"There is a clear-cut distinction

between a compromise arrived at

between the parties or a consent

order passed by the Court at the

instance of the parties and a clear

and categorical undertaking given

by any of the parties. In the former,

if there is violation of the

compromise or the order no

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question of contempt of court

arises, but the party has a right to

enforce the order or the compromise

by either executing the order or

getting an injunction from the

court."

The Court then considered various consent orders

which could not base proceedings for contempt if the consent

order were violated. Thus for example, a decree for payment

of money if not complied with could not found an action for

contempt. Similarly the allocation of certain property to a

party by consent would not give rise to proceedings of

contempt if possession of property was not given to that

party. The Court was of the view that:

"In the absence of any express

undertaking given by the appellant

or any undertaking incorporated in

the order impugned, it will be

difficult to hold that the appellant

willfully disobeyed or committed

breach of such an

undertaking\005\005\005\005\005\005\005\005\005\005\005

\005\005\005\005. If we were to hold that

non-compliance of a compromise

decree or consent order amounts to

contempt of court, the provisions of

the Code of Civil Procedure relating

to execution of decrees may not be

resorted to at all. In fact , the

reason why a breach of clear

undertaking given to the court

amounts to contempt of court is

that the contemner by making a

false representation to the court

obtains a benefit for himself and if

he fails to honour the undertaking,

he plays a serious fraud on the

court itself and thereby obstructs

the course of justice and brings into

disrepute the judicial institution.

The same cannot, however, be said

of consent order or a compromise

decree where the fraud, if any, is

practiced by the person concerned

not on the court but on one of the

parties. Thus, the offence

committed by the person concerned

is qua the party not qua the court,

and therefore, the very foundation

for proceeding for contempt of court

is completely absent in such case."

The appeal was accordingly allowed and the order passed

under Section 2(b) Act set aside.

The question which was before the Court in Babu Ram

Gupta's case was limited to the issue whether the appellant

had given any undertaking to the Court, either expressly or

impliedly, which he had violated. In other words it was limited

to the second category of cases mentioned under Section 2(b)

of the Act. The Court was not called upon to decide whether

there was any contumacious conduct as envisaged by the first

category of cases under that Section. The observations made

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in that regard, are strictly speaking, obiter. The Court was not

called upon to consider nor did it construe the language of

Section 2(b) of the Act. If we were to accept the observations of

the Court as an enunciation of the law, it would run contrary

to the express language of the statute. As we have earlier

noted, the section itself provides that willful violation of any

order or decree etc. would tantamount to contempt. A

compromise decree is as much a decree as a decree passed on

adjudication. It is not as has been wrongly held by the

Calcutta High Court in Nisha Kanto Roy Chowdhury (supra)

merely an agreement between the parties. In passing the

decree by consent, the Court adds its mandate to the consent.

A consent decree is composed of both a command and a

contract. The Bombay High Court's view in Bajranglal

Gangadhar Khemka (supra) correctly represents the law that

a consent decree is a contract with the imprimatur of the

Court. 'Imprimatur' means 'authorized' or 'approved'. In other

words by passing a decree in terms of a consent order the

Court authorizes and approves the course of action consented

to. Moreover, the provisions of Order 23 Rule 3 of the Code of

Civil Procedure requires the Court to pass a decree in

accordance with the consent terms only when it is proved to

the satisfaction of the court that a suit has been adjusted

wholly or in part by any lawful agreement

All decrees and orders are executable under the Code of

Civil Procedure. Consent decrees or orders are of course also

executable. But merely because an order or decree is

executable, would not take away the Courts jurisdiction to

deal with a matter under the Act provided the Court is

satisfied that the violation of the order or decree is such, that

if proved, it would warrant punishment under Section 13 of

the Act on the ground that the contempt substantially

interferes or tends substantially to interfere with the due

course of justice. The decisions relied upon by the

respondents themselves hold so as we shall subsequently see.

In such circumstances it would neither be in consonance

with the statute, judicial authority, principle or logic to draw

any distinction between the willful violation of the terms of a

consent decree and willful violation of a decree which is

passed on adjudication. The decision in Baburam Gupta's

case must, therefore, be limited to its own peculiar facts.

Rita Markandeya Vs. Surjit Singh Arora (1996) 6 SCC

14, which was also been relied upon by the respondents to

urge that the present application for contempt was not

maintainable, related to proceedings for eviction. The

respondent, who was the tenant had been directed to vacate

the tenanted premises. His appeal before this Court was

dismissed. While dismissing the appeal the Court recorded:-

"However, as agreed to by both the

learned counsel, time to hand over

vacant possession to Smt. Rita

Markandey is granted till

31.3.1995. This shall be subject to

the usual undertaking to be filed by

the appellant-tenant within four

weeks from today."

The respondent did not file the undertaking. He also did

not vacate the tenanted premises by the agreed date. The

landlord-appellant then filed a petition alleging that the

respondent had committed contempt of court by gaining time

from the Court to vacate the premises only to file an

undertaking and thereafter refusing to file the undertaking.

The Court found, on an interpretation of its order, that the

court had not itself passed any order fixing the time. In terms

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of the agreement between the parties the time had been fixed

and the Court had only "embodied the terms of the agreement

so arrived at." Therefore, it was held that the respondent could

not be held liable for contempt of that order.

The respondents herein have however, relied upon the

following passage in the judgment claiming that the same

supported their contention:-

"Law is well settled that if any party

gives an undertaking to the court to

vacate the premises from which he is

liable to be evicted under the orders

of the court and there is a clear and

deliberate breach thereof it amounts

to civil contempt but since, in the

present case, the respondent did not

file any undertaking as envisaged in

the order of this Court the question of

his being punished for breach

thereof does not arise. However, in

our considered view even in case

where no such undertaking is given,

a party to a litigation may be held

liable for such contempt if the court

is induced to sanction a particular

course of action or inaction on the

basis of the representation of such a

party and the court ultimately finds

that the party never intended to act

on such representation or such

representation was false."

This passage is an exposition of the law relating to the

second category of cases covered by Section 2(b) of the Act. It

does not seek to be an exposition of the law relating to the first

category of cases at all.

The next decision relied upon by the respondents is the

decision of this Court in Bank of Baroda Vs. Sadruddin

Hasan Daya & Anr. 2004(1) SCC 360. The petitioner in that

case had filed a suit against the respondents for recovery of

money. The suit was disposed of by consent and a decree was

passed incorporating the consent terms. The consent terms

inter alia, provided for payment of the decretal amount in

instalments. Pending the clearance of the decretal amount the

respondents undertook not to sell, mortgage, alienate,

encumber or charge some of its properties. Another creditor

also filed the suit against the respondent for recovery of a

certain amount. This second suit was also disposed of by

consent and a decree passed in terms of the consent order.

Like the first decree the decreed amount was to be satisfied in

instalments and pending satisfaction of the decree, the

respondents undertook to the Court not to alienate,

encumber, or create third party rights or part with possession

of the same properties which had already formed part of the

undertaking in the first decree. The respondents defaulted in

making payment of the instalments under the first decree.

The petitioner put the decree into execution. It also filed a

contempt petition alleging that the second consent decree

violated the undertaking given in the first decree. The Court

found that by placing the same property under attachment in

the second decree the respondent had intentionally and

deliberately acted in breach of the undertaking given to the

Court in the first consent decree. The Court approved the

statement of the law by the Bombay High Court in Bajranglal

Gangadhar Khemka & Anr. Vs. Kapurchand Ltd.(supra).

Significantly, the Court also said:

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"The violation or breach of the

undertaking which become part of

the decree of the court certainly

amounts to contempt of court,

irrespective of the fact that it is open

to the decree-holder to execute the

decree." (Emphasis added)

This decision reinforces our view of the law. It does not

in any way run contrary to our opinion as expressed earlier on

the interpretation to be put on Section 2(b) of the Act. On the

other hand the Court repelled the submission of the

respondents that the petitioners remedy lay in executing the

decree in the following words:-

" The fact that the petitioner can

execute the decree can have no

bearing on the contempt committed

by the respondents."

The decision in R.N. Dey and Anr Vs. Bhagyabati

Pramanik & Ors 2000(4) SCC 400, also relied upon by the

respondents, disposed of an appeal filed from an order

directing the appellants to deposit certain amounts of money

towards compensation money payable in respect of land

acquisition proceedings. The directions were given while

disposing of contempt proceedings initiated by the respondent

after the Court had accepted the unqualified apology tendered

by the appellants. The appellants urged that instead of filing a

contempt application, the respondent should have proceeded

with the execution of the decree or award made in the land

acquisition proceedings. The Court said that:-

"\005 the weapon of contempt is not to

be used in abundance or misused.

Normally, it cannot be used for

execution of the decree or

implementation of an order for

which alternative remedy in law is

provided for. Discretion given to the

court is to be exercised for

maintenance of the court's dignity

and majesty of law."

Furthermore, it has also said that:-

"\005 the decree-holder, who does not

take steps to execute the decree in

accordance with the procedure

prescribed by law, should not be

encouraged to invoke contempt

jurisdiction of the court for non-

satisfaction of the money decree."

Having regard to the facts of the case the Court felt that

the contempt proceedings should not have been resorted to

and that in any case since the unconditional apology has been

tendered and accepted by the appellant further proceedings

should have been dropped.

As we read the decision, its ratio runs counter to the

submission of the respondents, namely, that the contempt

would not lie if the decree or order is executable. Ultimately,

the matter is one of the Court's discretion having regard to the

facts of the case. As we have said the fact that a decree is

executable does not take away the Court's jurisdiction in

contempt.

In the present case, the consent terms arrived at between

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the parties was incorporated in the orders passed by the Court

on 12th December 2001 and 8th January 2002. The decree as

drawn up shows that order dated 8th January, 2002 was to be

"punctually observed and carried into execution by all

concerned". A violation of the terms of the consent order

would amount to a violation of the Court's orders dated 12th

December 2001 and 8th January 2002 and, therefore be

punishable under the first limb of Section 2(b) of the Contempt

of Courts Act, 1971. The question whether the respondents

should not be held guilty of contempt because of any earlier

confusion in the law reflected in the case of Babu Ram Gupta

(supra), is a question which must be left for decision while

disposing of the contempt petition on merits. It may be

argued as an extenuating or mitigating factor once the

respondents are held guilty of contempt. The submission

does not pertain to the maintainability of the petition for

contempt. The preliminary objection raised by the

respondents regarding the non-maintainability of the petition

for contempt is, for the reasons stated, dismissed.

The issue as to whether the respondents have in fact

acted in violation of the terms of the consent order will now

have to be decided on merits. Let the matter be listed for this

purpose. Costs of this petition will be costs in the contempt

petition.