Reuben, J.:— On the petition of the Light Railway Company filed on 28-6-1950, a rule has been issued on the opposite party to show cause why a writ of mandamus should not issue against them restraining them from interfering with the possession of the Company over the properties and management of the Bihar Bakhtiarpur Light Railway. There is also a rule against the District Board of Patna (opposite party 3), Mr. Khaderan Singh, Chairman of the District Board (opposite party 4), and Mr. H. Subberwal, ex-Head Accounts Officer of the Light Railway Company (opposite party 5) to show cause why they should not be committed for contempt of Court. At the same time, an ad interim injunction was issued restraining the opposite party from interfering with the possession of the Light Railway Company. It being asserted on behalf of the District Board that dispossession had already taken place before the issue of the injunction, a further rule has been issued on the District Board of Patna and Mr. Khaderan Singh, on a petition filed by the Light Railway Company on 19-7-1960, to show cause why a mandatory injunction Shall not issue against them directing them to restore possession of the Light Railway to the petitioning Company.

2. The Light Railway was established about the year 1901 under the provisions of the Bengal Tramways Act, 1883 (Bengal Act III [3] of 1883). By Notifn. No. 100B dated 25-6-1901 under S. 5 of that Act, the Local Government of Bengal sanctioned its construction between Bukhtiarpur and Bihar Sharif, subject to an agreement between Messrs Martin & Co., the promoters of the Bukhtiarpur-Bihar Light Railway Co. Ltd., on the one side and the District Board of Patna on the other which was entered on 21-8-1899.

Subsequently, there was an extension of the Light Railway to Rajgir. The agreement of August 1899 is set out in a schedule to the Government Order and I reproduce below the relevant provisions of it:

“(1) The Board will grant to the Company in perpetuity subject to cl. 5 of the free use of so much of the side portion of the said road as is necessary but not exceeding a width of 8′ on one aide for the purpose of laying thereon and using a steam Tarmway of 2′ 6′ gauge to be worked by the Company. The Board will also grant to the Company in perpetuity subject as aforesaid full right and liberty to lay the said Tramway across the said road wherever necessary and to use the same wherever laid across the said road.

(2) The Board will promote the acquisition by the Company under the provisions of Act I [1] of 1894 of such additional land outside the boundary of the said road as may be necessary for the purpose of the said Tramway.

(5) In the event of the Board exercising the right of purchase conferred upon them by S. 41 of Act III[3] (B.C) of 1883 the value to be placed upon the Tramway as a going concern shall be calculated at twenty years purchase of the average net annual profits to the Company during the four years preceding the transaction together with a bonus of twenty per cent, on the amount so arrived at over and above that amount. In case of dispute the matter will be determined by arbitration under the clause in that behalf hereinafter contained.

(12) If any doubt or difference shall arise between the Board and the Promoters or the Board and the Company concerning anything herein contained or any matter in any way connected therewith or with these presents or the construction thereof or the rights, duties and liabilities of any person or persons in connection with these presents or as to the incidence of expense as-between the Board and the Company under any of the clauses of this agreement then and in every such case the matter in doubt or difference shall be referred to two arbitrators one to be appointed by each party or to the umpire of such arbitrators in case they differ in opinion but if either of the parties shall refuse or neglect to appoint for one month after notice in writing from the other of an arbitrator being or having been appointed then the arbitrator so appointed may make a final decision alone which shall have the same force and effect as the award of two arbitrators or the umpire duly appointed.”

This agreement was confirmed by the Light Railway Company after it was incorporated.

3. Under Section 41 of the Bengal Tramways Act, the District Board is entitled on six months' notice-in writing to purchase the undertaking upon the expiration of twenty one years from the date of the order under S. 5 of the Act, and, thereafter, the Board has a renewed right of purchase on similar notice at the expiry of every-period of seven years after the expiry of the initial period of twenty one years. The last seven year period expired in June 1950. On 16-12-1949, in pursuance of a resolution of the District Board of the same date, Mr. Syed Hassan, Advocate on behalf of the District Board, gave notice to the Light Railway Company of the decision of the District Board to exercise its right of purchase with effect from 25-6-1950 on the expiry of the current period of seven years, and called on the Light Railway Company to settle the transfer value by mutual agreement. The legal validity of this notice is not admitted by the Light Railway Company, but it is agreed that, for the purposes of this case, the notice may be treated as legally valid. There followed a correspondence between the Company and Mr. Syed Hassan, the details of which it is unnecessary to set out at length. A difference arose between the Company and she District Board as to the interpretation of Cl. 5 of the agreement of August 1899. According to the Company, in addition to the amount calculated under cl. (5), the purchase price must include the present market value of the assets, such as plant, buildings, rolling stock, land, etc., whereas, according to the District Board, that amount is an inclusive price for the Railway as a going concern. The Company also questioned the validity of the notice under S. 5. Finally, on 29-3-1950, the District Board gave a notice to the Company, appointing Mr. Baldeva Sahay, Advocate, as its arbitrator, and catling upon the Company to appoint its arbitrator within one month, failing which in accordance with the agreement of August 1899, Mr. Baldeva Sabay would proceed as the sole arbitrator and give “a final and conclusive award”. Thereupon, the Railway Company appointed Mr. Abdul Manan, a pleader of Purnea, as its arbitrator, but limited his authority to the point as to whether the notice under S. 5 was legally valid. Upon protest by the District Board on this limitation, Mr. Manan retired from the arbitration and subsequently Mr. Nizamuddin Khan, Advocate, was appointed by the Company “under protest” with authority to consider the question of valuation. The arbitrators, however, were unable to come to a definite decision for want of the audited accounts of the preceding four years. In the meantime, an agitation had started against the management of the Light Railway Company, and a body styling itself the Bihar-Bukhtiarpur Light Railway Passengers' Association began to voice publicly the alleged grievances of persons travelling on the said Railway and to urge on the District Board the desirability of taking under itself the management of the Light Railway. On account of an assertion said to have been made by Mr. Khaderan Singh at a meeting of the Association at Bihar Sharif on 13-5-1950, that he was preparing to take over the management of the Light Railway on the 25th June whether the Company was willing or not to hand over control, the Company instituted Misc. ??? case No. 120 of 1950 in this Court asking among other reliefs for a writ of mandamus restraining the District Board from taking possession of the Light Railway “except in due course of law” Mr. Khaderan Singh and Mr. Subberwal were also impleaded. A rule was issued and an ad interim injunction was granted on 17-5-1950. The case came before Das, J., and me and was disposed of on 23-6-1950 by a consent order which I reproduce below:

“This application is disposed of on the following consent order agreed to by the parties.

Subject and without prejudice to whatever right the parties may have in respect of the matters in dispute;

(1) It is agreed to by the parties that the petitioner will submit for inspection such accounts as the arbitrators appointed by the parties may call for; if the accounts so called for be not in the present possession of the petitioner but be in the possession of the auditors, the petitioner will write to the auditors to give every facility to the arbitrators to examine the accounts. It is admitted by the learned Advocate General on behalf of the opposite parties that the audited accounts of the three years beginning from April 1946 have already been submitted to the arbitrators.

(2) The District Board will take possession of the undertaking, viz., the Bihar Bukhliarpur Light Railway (including the Rajgir extension) only after the purchase to which the District Board claims to be entitled, has been legally completed.

(3) On the submission of the accounts by the petitioner to the arbitrators appointed by the parties, no question arises of inspection of the accounts by any other person or authority; and

(4) There will be no order for coats of the hearing of this petition.

The interim order of injunction is vacated.”

It is alleged that, in violation of this order, Mr. Khaderan Singh, representing the District Board of Patna, helped by the other members of the opposite party, has proceeded to take possession of the Light Railway, although the purchase has not been legally completed. At the hearing, it was admitted that the District Board is now in possession of the Light Railway with the exception of the Head Offices at Calcutta and Patna. According to the Light Railway Company, the taking of possession commenced from the mid-night of 24/25th June, and has been completed, since the passing of this Court's order on 28th June. According to the opposite party, the taking of possession was peacefully effected at midnight of 24/25th June.

4. It may be mentioned that, before the District Board proceeded to take possession of the property, it made a deposit on 24th June of Rs. 10,00,623 to the credit of the Bukhtiarpur-Bihar Light Railway Co., Ltd. in the Imperial; Bank of India, Patna, as the tentative price of the undertaking on the basis of a valuation made by Messrs B.K Sinha & Co., Chartered Accountants and Auditors, Patna. The valuation was obtained by the District Board in accordance with a resolution recorded by the Board of Directors of the Light Railway Company on 11-6-1950:

“That the only correct approach to the subject would be for the District Board to assess and determine, if necessary by help of experts, the price payable to the Company, and as soon as the figure of amount of price is arrived at, let the District Board deposit the money in the Imperial Bank of India, and call upon the Company to accept the same, and then the Board of Directors shall immediately ascertain the views of the share-holders and shall expedite the transaction.”

This action was taken by the District Board

“subject to such adjustment as may be necessary according to the award of the arbitrators.”

The deposit of this amount is of no importance in the present proceeding, as the District Board does not rely upon it as contributing towards transfer of title.

5. The rule which was issued on 28th June was obtained on the basis that the petitioner Company was still in possession and that there was merely a disturbance of its possession. Aa it is now admitted that dispossession is complete, the rule relating to the issue of a writ to restrain the opposite party from disturbing possession is frustrated and must be discharged. The only points which arise for consideration, therefore, are; (1) whether opposite parties 3 to 5 have committed a contempt of Court, (2) if so, what action is called for, and (3) whether, in the circumstances of the case, a mandamus should issue against opposite parties 3 and 4 directing them to restore possession to the petitioner Company. As regards the first point, the argument on behalf of the Light Railway Company is as follows. The consent order of 23rd June contemplated that the District Board will not take possession until the purohass is legally complete. One essential to the completion of the purchase is the ascertainment and payment of the purchase price, and the price, since there has been a difference between the parties, can be determined only by the arbitrators as provided in the agreement of August 1899; the arbitrators appointed have not yet fixed the price, and, consequent upon a difference between the arbitrators, steps are now being taken to appoint an umpire. Secondly, the purchase involves a transfer of tangible immovable property valued at more than Rs. 100 and, therefore, a registered deed of transfer is required for the completion of the purchase. These two requisites being absent, the purchase is still incomplete and the consent order has been contravened. On the other side, there is a four fold contention, 1stly, that there was no order of this Court or under-taking given to it which could form the subject-matter of proceedings for contempt, 2ndly, that in law the title legally passed to the District Board on the expiry of the 21th June and the District Board had the right peacefully to take possession in accordance with the consent order of 33rd June, 3rdly that the District Board and the Light Railway Company, under the agreement of 1899, were in the position of “partners”, using this term in a non-technical sense, and, after the expiry of the relevant date, the District Board became the sole owner, entitled to possession and control, and the Light Railway Company was merely entitled to the price of its share of the undertaking, and, 4thly, that Mr. Khaderan Singh acted bona fide on legal advice in the belief that title had passed to the District Board.

6. It is unnecessary for me in the present proceeding to sat out and examine the elaborate grounds on which the second and third contentions of the opposite party are based, because I think that the opposite party are entitled to succeed on their first contention.

7. Contempt of Court may be committed by disobedience of an order of a Court or by breach of an undertaking given to a Court. The disobedience or breach may be unintentional resulting in a contempt in theory only, which is not punishable by committal but may render the respondent liable to pay the costs of the application, or the disobedience or breach may involve misconduct resulting in a contempt which partakes to some extent of a criminal nature (Halsbury'a Laws of England, Edn. 2, vol. 7, p. 24). The first contention on behalf of the opposite party is based on the form in which the consent order of this Court was passed. It is pointed out that all that the consent order does is to recite the agreement arrived at between the parties and to vacate the ad interim injunction which had been issued by the Court, that, in other words, the rule issued by the Court was discharged. This means, it is argued, that the Court refrained from passing any order, and that the agreement recorded by the Court is at most a contract between the parties enforceable by appropriate action in the civil Court. The first portion of this contention has not been seriously contested. As the consent order stands, there is no direction given by this Court except that the interim order of injunction is vacated and the application is disposed of on consent. It has been very strenuously argued, however, that the agreement of the District Board contained in cl. (2) of the consent order that it will take possession only after the purchase has been legally completed is an undertaking given to the Court. Wolverhampton and Walsal Rly. Co. v. L. & N.W Rly. Co., (1874) 16 Eq. 433 : (43 L.J Ch. 131) and Lord Strathcona Steamship Co. Ltd. v. Dominion Coal Co. Ltd., (1926) A.C 108 : (95 L.J.P.C 71) have been cited as authorities for implying the negative stipulation from the positive terms used, but this was hardly necessary; it was well understood at the time the consent order was passed that this was the meaning of the term agreed to by the District Board and the correctness of this interpretation was not challenged during the bearing of this petition—all that was challenged was the assertion that this term constituted an undertaking given to the Court.

8. In Kusadhaj Bhakta v. Brojo Mohan, 19 C.W.N 1228 : (A.I.R (3) 1916 Cal 816), Jenkins, C.J (Holmwood, J., agreeing) observed with reference to a consent decree:

“It is well settled that a contract of the parties is none the leas a contract because, there is superadded to it the command of a Judge. It is still a contract of the parties, and as the contract is capable of being rectified for an appropriate mistake so, as the necessary consequence, is the decree which is merely a more formal expression given to that contract.”

Their Lordships were dealing with the question of the maintainability of a suit to set aside a consent decree in a previous suit on the ground of mistake. It should be noted that their Lordships do not describe the agreement as a contract pure and simple, but as a contract with the command of a Judge superadded. The point is elaborated somewhat more in Sabitri Thakurain v. Mrs. F.A Savi, 14 P.L.T Sup. 1 at pp. 211 to 212 : (A.I.R (20) 1933 Pat. 306) where their Lordships observed that, as soon as a petition of compromise is adopted as a part of a decree, it passes from the domain of mere contracts into that of decrees, and a promise by a party to pay is converted into an order of the Court to that party to pay; this is so even though, according to the accepted practice, a formal decree is not drawn up specifying the orders of the Court but the decree drawn up merely says that the suit is decreed or dismissed, as the case may be, in the terms of the compromise, and the petition of compromise is attached to the decree as an annexure. Their Lordships pointed out that the consent decree has this effect because of O. 23, R. 3, Civil P. C, which provides that, after recording the compromise, the Court shall pass a decree in accordance therewith so far as it relates to the suit. The effect is that the agreement between the parties, so far as it relates to the suit, becomes the order of the Court and, to that exent, may be enforced by execution. So far as the present order is concerned, however, there is no provision corresponding to O. 23, B. 3, and there is no reason why the consent order under consideration should be held not to be governed by the following observation at p. 124 of Seton on Judgments and Orders, Edn. 7, vol. I:

“A compromise ought not to be introduced into the body of the order, but either identified or scheduled. It is, however, common practice to insert undertakings in the body of the order, and in the event of a breach, the undertaking may be enforced by writ of attachment, whereas if it formed part of the agreement set forth in the schedule, proceedings in the nature of specific performance might be necessary.”

The learned author distinguishes between orders in which the compromise is introduced into the body of the order and those in which it is kept separate from the order of the Court. The order before us appears at fist sight to fall in the first class, but really it belongs to the second class of consent orders. I say this because, though it embodies the agreement between the parties, that agreement is kept distinct from the directions of the Court, as it would be if it were set out in a schedule.

9. A case on a par with the case before us in reported in Dashwood v. Dashwood, 1927 W.N 276. By a consent order made in a partnership action brought by the plaintiff against the defendants further proceedings were stayed “except so far as may be necessary for the purpose of carrying this order and the terms agreed between the parties and set out in the schedule hereto into effect.”

The defendants subsequently moved for committal of (contempt) or the issue of a writ of attachment against the plaintiff on the ground that he had carried on the business of an undertaker within a radius of three miles from the Guildhall, Portsmouth, contrary to a covenant contained in the scheduled terms. Tomlin, J. held that the teems in the schedule were not an order of the Court enforceable by proceedings for contempt and that the proper course was to apply for specific performance or an injunction, and then to base proceedings for can tempt on a subsequent breach, if any.

10. This decision was distinguished by Panckridge, J. in Hari Charan Dey v. Ranjit Kumar, 42 C.W.N 203, a case relied on for the Light Railway Company. His Lordship was concerned with a consent decree in a money suit. The terms of the compromise between the parties were given in a schedule annexed to the decree. Clause (i) of those terms is relevant and runs thus:

“The defendants undertake not to dispose of their properties until the decree is fully satisfied.”

This term was obviously not enforceable by execution. Panckridge, J., held the term to be an undertaking given to the Court and found the defendant to be guilty of contempt by transferring property in contravention of it. The grounds on which his Lordship distinguished Dashwood v. Dashwood, (1937 W.N 276), support what I have said above. He observes:

“In Dashwood v. Dashwood, (1927 W.N 276) the action was merely stayed and the schedule and terms of settlement were annexed to the stay order. In the present case the suit has been concluded by the decree of the Court which declares that the terms of settlement ought to be carried out and the same are ordered and decreed accordingly. Thus, there is an order of the Court embodied in the decree directing the parties to carry out the terms, one of which is an undertaking by the defendants not to dispose of their properties until the decree is fully satisfied. But even if the order of the Court were not so clear, the case would still in my opinion not fall on the same Bide of the line as Dashwood v. Dashuood, (1927 W.N 276), which Tomlin, J. expressly distinguishes from a case where there is in the body of the order either an express direction or an undertaking. Here there are in my view both an express direction and undertaking, so whichever test one applies, the distinction between the present case and Dashwood v. Dashwood, (1927 W.N 276), is obvious.”

The distinction drawn is that, in the decree with which his Lordship was concerned, there was an express direction for carrying out the terms of the agreement, and the terms of the agreement were thus embodied in the decree. This condition is not present in the case before us. The correctness of the decision of Panckridge, J., was doubted by a Division Bench of the same Court in Nisha Kanto v. Saroj Bashini, A.I.R (35) 1948 Cal. 294 : (49 Cr. L.J 567). That case was concerned with an undertaking given by the defendant in a compromise in a suit for ejectment, which compromise was made a rule of the Court. The defendant thereby undertook to re-move a Kali image, as also all permanent brick built and other structures in and around the place where the image stood, before he gave up possession of the said property, or at any time prior thereto on demand by the plaintiff or the owner for the time being of the said property. Subsequently, he was called on by the plaintiff to remove the image of Kali, but declined to do so Gentle, J., held that he had committed contempt by a breach of an undertaking given to the Court, and directed that he be detained in prison for a period of one month. This order was set aside in a Letters Patent appeal. The Letters Patent Bench held that the undertaking was one between the parties and not an undertaking given to the Court. The Letters Patent Bench observed that a compromise is nothing more than an agreement between the parties with the command of the Court superadded, it has really no greater sanctity than the agreement itself and certainly cannot mean anything more than the agreement itself. Referring to the decision in Hari Charan v. Ranjit Kumar, 42 C.W.N 203, their Lordships pointed out that Panckridge, J., had given no reason for holding that there was an undertaking given to the Court except that the word “undertake” was used. Harries, C.J, who delivered the leading judgment, observed:

“But as I have stated the mere user of the word ‘undertake’ does not mean a promise to a Court. It merely means a solemn promise to some one and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously undertakes to B, and not to a Court.”

He went on and added that each case must be decided on its particular facts. His Lordship the Chief Justice concluded by saying that, if it was a practice as was urged on behalf of the respondent that practitioners on the original side of the Court did not make it clear that art undertaking in a compromise was an undertaking to the Court, this practice must cease and, in future, the fact should be made clear. It has been urged before us that the decision of the Letters Patent Bench was incorrect, and reference has been made to several forms in Seton on Judgments and Orders, Edn. 7 (vol. 1, P. 47 form 2, P. 450 form 3, P. 796, form 5, (Vol. II, P. 1179 form 12 and Vol. III, P. 2322 form 4) showing the embodying in orders of the Court of undertakings given to the Court without expressly stating that those undertakings were given to the Court. A perusal of all the forms cited, however, shows that from the context it is clear that the undertakings incorporated in these forms are undertakings to the Court, Selecting one at random, I reproduce the form at P. 1179 of vol. II:

“12. Undertaking to appoint Co-trustee by Beneficiaries when appointed Trustees.

And the applicants, by their counsel, undertaking to take steps immediately for the appointment of a co-trustee in the case of the decease of either of them, appoint A.B and C.D new trustees of etc. Re Light-body, Kay, J., 19-12-1884, B. 1634; S.C, 52 L.T 40.’”

This form is clearly intended to be an order of the Court. It is not an agreement between the parties. The undertaking referred to, therefore cannot be merely an undertaking between the parties, but must be one given to the Court. This is exactly what Harries, C.J says in the passage which I have cited above. Turning to the order with which we are concerned, we find first of all, that there is no such word as under taking, a word which, according to Harries, C.J, implies a solemn undertaking. It is not necessary to consider whether this makes any difference, for, applying the further test suggested by his Lordship, the term in question occurs in what is set out as the agreement between the parties. It must, therefore, be taken as a term between the parties and not as an undertaking given to the Court. I am confirmed in this view by the principle that, so long as an order of the. Court exists, it must be obeyed and obeyed to the letter, and anyone who does not obey it to the letter is guilty of committing a wilful breach of it: Spokes v. Banbury Board of Health, (1866) 1 E.Q 45 : (14 W.R 128). If the person bound by an order is to comply with that order to the letter, the Court itself must be very strict in interpreting that order and not put upon that order an interpretation which is open to any doubt or difference of opinion.

11. It has been urged that this interpretation would make the entire proceedings of the 23rd June meaningless, that it was contemplated both by the Court and the parties that the District Board should not take possession till the compulsory purchase was legally complete and that, if it is open to the District Board to take possession contrary to this agreement without incurring a liability for contempt of Court, the Court is set at naught, and the directions of the Court are treated as unworthy of notice. It is urged, further, that the circumstances clearly show that, at the time when he entered into this agreement, Mr. Khaderansing intended to enter into possession on the expiry of the 24th June, and his entering into the agreement was merely a dodge fey which he induced this Court to refrain from exercising its powers and issuing an injunction against the District Board. This, it is said, is a clear overreaching of the Court. The flouting of the Court in this manner, it is contended, constitutes a contempt. In support a reference has been made to Seaware v. Paterson, (1897) 1 Ch. 545 : (66 L.J Ch. 267). The respondents in chat case were found guilty of contempt in respect of an injunction issued by the Court, Paterson who was a party to the previous proceedings by disobedience of the Court's order, and Murray who was not a party to the previous proceedings by aiding and abetting Paterson in committing a breach of that order. The important point is that in that case there was an order of the Court on which the proceedings in contempt could be based. In the case before us, there is no such order or undertaking.

12. The present case is somewhat similar to that reported in Narayan Sahu v. Thakurji Ramji, 106 I.C 194 : (A.I.R (15) 1928 Pat. 49), which arose out of a first appeal in this Court against a decree for the redemption of a usufructuary mortgage. The appellant applied for stay of delivery of possession. When the matter came up for hearing before the Registrar on 6-6-1927, the respondent decree-holder represented that the application was premature as no steps had yet been taken for delivery of possession. The argument prevailed and the Registrar rejected the application for stay. The decree-holder thereupon went to the execution Court on the 10th June, put in an application for delivery of possession, and succeeded in obtaining deli, very of possession on the 13th June, before the appellant realised what was happening. Their Lordships held that there had been an overreaching of the Court and the delivery, of possession could not be allowed to stand. This decision was followed in Lahore Electric Supply Co., Ltd., Lahore v. Province of Punjab, I.L.R (1943) 24 Lah. 617 : (A.I.R (30) 1943 Lah. 41 F.B). That decision relates to a suit instituted by the Lahore Electric Supply Co., Ltd., against the Punjab Government for a declaration that it was entitled to carry on the Lahore electric supply undertaking as licensee for another twenty years, attacking among other things the validity of a notice given by the Punjab Government to the plaintiff Company of its intention to exercise the option to purchase the licenses's undertaking given to the Punjab Government under the Electricity Act, 1910 (Act. IX[9] of 1910). The plaintiff Company applied for a temporary injunction to maintain the status quo. The Punjab Government during the pendency of this matter succeeded in taking over the undertaking. This was done before the service of an order of injunction. The Full Bench held it to be a case of over-reaching the Court, and, following the decision in Narayan Sahu v. Thakurji Ramji, 106 I.C 194 : (A.I.R (15) 1928 Pat. 49) issued a mandatory injunction on the Punjab Government to restore possession to the plaintiff Company. Similar cases are reported in Daniel v. Ferguson, (1891) 2 Ch. 27 : (39 W.R 699) and Von Joel v. Hornsey, (1895) 2 Ch. 774 : (65 L.J Ch. 102). In these last three cases, their Lordships, while granting a mandatory injunction, refrained from expressing any opinion as to the merits of the subject-matter of the controversy. It is to be noticed that in none of these cases was there any suggestion that a contempt of Court had been committed. The mere fact, therefore, that there had been an overreaching of the Court will not render the guilty party liable to proceedings for contempt. The effect will not be to make proceedings before the Court meaning less for, as it appears from the decisions to which I have just referred, it will be open to the Court in an appropriate proceeding to give the aggrieved party relief against the misdeed of the opposite party. Having come to the conclusion that there was no undertaking given to the Court, it follows that no contempt of Court has been committed by the action which is complained of. It is, therefore, not necessary to consider the second point formulated at P. 6 above.

13. Coming to the third point, namely, whether a mandamus should issue against opposite parties 3 and 4 directing them to restore possession to the petitioner company, I must premise to begin with that the dispute between the District Board and the Light Railway Company is essentially a private dispute of a civil nature, whether the District Board has complied with Section 41 of the Bengal Tramways Act, 1883, and is entitled to “purchase” the undertaking and, if so, what should be the price to be paid by the District Board. This is a matter to be settled be tween the parties themselves by negotiation or by arbitration as provided in the agreement of 1899, or, in the last resort in the ordinary civil Courts. The Light Railway Company seeks the help of this Court in the exercise of its extraordinary powers under Article 226, Constitution of India, on the ground that the District Board in “gross contempt” of the order of this Court

“forcibly started turning out officers of your petitioner and disturbing your petitioner's possession on the midnight of the 24th June last,”

And was guilty of a “gross fraud” on this Court by agreeing to the consent order while intending, nevertheless, to take possession of the undertaking on the expiry of the, 24th June. In the petition asking for this relief, the petitioner Company included by reference to allegation contained in its petition in Misc. Oud. Case No. 120 of 1950. There were two things complained of in that petition, firstly, that the State Government had illegally, or, alternatively, arbitrarily and unreasonably, appointed Mr. H. Subberwal, a dismissed employee of the Light Railway Company, to inspect its accounts, and, secondly, that, with the help of the State of Bihar and its officers, the District Board was threatening forcibly to dispossess the Light Railway Company and take over the management of the Railway itself. A mention was made of a raid “by the police along with the abovementioned Subberwal”, in which the offices and godown of the Light Railway Company in Fraser Road, Patna, were entered into and again, on the next day it was said with the help of the police, some papers of the Railway were seized and some accounts examined. It was expressly stated that there was

“a conspiracy between the State of Bihar, the District Board of Patna and the said Mr. H. Subberwal to take forcible possession”

Of the property of the petitioner. Stress was throughout laid on the threatened use of force and the fact that, in its threatened action, the District Board had the backing and support of the State Government and the District Officials. We are not concerned here with the first ground; as a result of the consent order, the question of Mr. Subberwal inspecting the accounts did not arise, apart from an incident which has been separately dealt with by us in a proceeding for contempt of Court against Mr. hubberwal (original cri. Misc. No. 5 of 1950). The other aspect of the matter was stressed before us and it was urged that the dispossession of the Light Railway Company was effected by force and with the help of the State and its Executive Officers in the District. This is a serious charge and calls for some expression of our opinion on the facts be far as this is possible on the evidence before us. After discussing evidence, his Lordship concluded on the evidence before us. I am not prepared to say that possession was taken by force and that in effecting such possession the District Board was helped by the officers of the State.

14. The conclusion is irresistible that in the present case the Light Railway Company has asked for the interference by this Court in the exercise of its powers under Art., 226 on a statement of facts which is incorrect in two important particulars, firstly that the possession of the Light Railway Company was merely disturbed, and, secondly, that force was being used and that the State Officials were helping the District Board in taking possession. It was this misrepresentation of facts that, on the 28th of June, led me to issue an ad interim injunction which is utterly inappropriate to the true facts, it is also doubtful whether, if the true facts were before me, I would have issued a rule at all, on the 22nd and 23rd of June, when we were hearing the arguments in Misc. Jud. Case No. 120 of 1950, I made it clear that I was very-reluctant to make the rule absolute in favour of the Light Railway Company. I pointed out then that the Light Railway Company was in the position of the person in possession and was entitled to use force to maintain that possession. Had it been a matter between the Light Railway Company on the one side and the District Board alone on the other side, there would have been no doubt that the matter was one to be dealt with by the Ordinary Civil Courts. The stress, however, Was, as I have indicated, on the threat of force backed by the State and its officers. This aspect has also been stressed in the present proceeding but the allegations have not been established. In these circumstances, I do not think that a case has been made out for the issue of a writ of mandamus as asked for.

15. In my opinion, therefore, the petition has no merits and must be dismissed. It remains to consider the question of costs.

16. I do not think that the District Board and Mr. Khaderan Singh should be granted any costs since I am not satisfied as to the propriety of their action in agreeing to the consent order on the 23rd June and, nevertheless, taking physical possession on the expiry of the 24th June. It has been contended that Mr. Khaderan Singh acted on advice and in bona fide belief that the purchase was legally complete and the District Board was entitled to enter into possession at midnight of the 24th and 25th June. [After discussion of evidence His Lordship concluded.] It is improbable that Mr. Khaderan Singh took any legal advice to satisfy himself that the District Board was entitled to enter into possession in accordance with the agreement between the parties embodied in the consent order of the 23rd June.

17. The other members of the opposite party are entitled to costs but opposite parties 6 to 26 will get hearing fees only for one day, as it was intimated on the first day of the hearing that the rule against them had become infructuous and would not be pressed.

18. In the result, I would discharge the rule and dismiss the petition with costs to the opposite parties other than opposite parties 3 and 4. The hearing fee will be assessed in three sets as follows: Opposite parties 1 and 2–5 gold mohars; Opposite party 5–5 gold mohars; Opposite parties 6 to 26–2 gold mohars.

19. Das, J.:— I have had the advantage of reading the judgment proposed to be delivered by my learned brother.

20. I think the main questions in issue may be thus formulated: (1) What is the nature of the agreement dated 23-6-1950, on which we disposed of the petitioner's application in Miso Jud. case no. 120 of 1950 — was it an undertaking to the Court? (2) Was there any breach of the aforesaid agreement or undertaking? d) If there was a breach, does it constitute contempt of this Court? (4) Alternatively, are the District Board of Patna or any of their officers guilty of overreaching the Court in disturbing the possession of or dispossessing, the petitioner on the midnight of 24-6-1950, in violation of the agreement of 23-6-1950? If so, should this Court restore the petitioner to possession?

21. My learned brother has quoted in full the agreement of 23-6-1950. I agree with his conclusion that agreement was a contract between the parties, and not an undertaking to the Court. The distinction between an agreement with the sanction of the Court superadded to it, and an undertaking to the Court on the faith of which the Court sanctions a particular course of action or inaction is not easy to define or determine; much will depend on the circumstances in which the agreement is made, and the words in which it is expressed to embody the intention of the parties: (see the observations in Nisa Kanto v. Saroj Bashini, A.I.R (35) 1948 Cal. 294 : (49 Cr. L.J 567). The agreement in this case did not result in any order of the Court, except disposal of the application without consideration of merits and a termination of the interim order of injunction. It saved “whatever right the parties may have in respect of the matters in dispute” (see the opening clause of the agreement). I accept Mr. P.R Das's contention that this opening clause does not mean that the points regarding which the parties definitely agreed in the four clauses of the agreement, are to be include in the saving clause, so as to unsettle what has been agreed to. I also accept his argument as to the meaning of cl. 2 of the agreement; namely, that though affirmatively put, it implies the negative and means that the District Board shall not take possession of the undertaking till the purchase is legally completed. Even accepting the aforesaid contentions, I do not think that the agreement goes beyond a contract between the parties on which the Court disposed of the application without granting any order of injunction. Of course, the formal order of disposal is there, but that does not convert the agreement into an undertaking to this Court. It is worthy of note that the order of 23-6-1950, as recorded, states clearly — “It is agreed to by the parties etc.” There is nothing to suggest that there is an undertaking given to the Court on the faith of which the Court is sanctioning a particular course of action or inaction. Mr. Das has contended that on the basis of the agreement the Court refrained from deciding the case on merits, and this would bring the agreement within the category of an undertaking on the faith of which the Court sanctioned a particular course of inaction, that is, refrained from deciding the case on merits. I agree that the Court refrained from deciding the case on merits: but that does not necessarily mean that the Court did so on the faith of undertaking given to the Court. If Mr. Das's contention is correct, then every action which is dismissed on compromise, without decision on merits, will give rise to a proceeding in contempt on a breach of a term of the compromise. I do not think that is correct in law.

22. My learned brother has examined the case law on the subject, and as I am in agreement with him I need not sty again what he has already said with greater clarity and in greater detail. It is not disputed that an undertaking entered into with the Court is equivalent to, and will have the effect of an injunction so far that an infringement thereof may be made the subject of an application to the Court for a proceeding in contempt (see Kerr on Injunctions, Edn. 6, pp. 668, 669; see also Halsbury's Laws of England, Vol. 7, P. 35, para. 51). But if the agreement does not constitute an undertaking to the Court, what then is the position?

23. This brings me to the second question. The learned Advocate-General and Mr. Varma, appearing for the opposite party, have very strenuously contended before us that there was no breach of the agreement of 23-6-1950. Speaking for myself, I find it difficult to accept that argument. We have been taken through the relevant provisions of the Bengal Tramwaya Act, 1883; notification no. 100R dated 25-6-1901, and the agreement of August 1899 between Messrs Martin & Co. and the District Board of Patna — the relevant provisions whereof have been quoted in extenso by my learned brother. On the basis of those provisions, the learned Advocate-General contended — (1) that the agreement of 1899 was a mere license for “the free use” of a portion of the road, which license came to an end on 24-6-1950; or (2) that it was in the nature of a contingent lease (the words used in the document are “grant to the Company in perpetuity subject to cl. 5” which automatically came to an end when the contingency happened; that is, the District Board exercised the right of purchase conferred upon them by Section 41 of the Bengal Tramways Act, 1883; or (3) that the jural relation between the District Board of Patna and Railway Company was analogous to that of partners, which relation came to an end as soon as the District Board intimated that it would exercise its right of purchase with effect from 25-6-1950. On these contentions, which were elaborately and very strenuously canvassed, the learned Advocate General founded his main argument that the purchase, to which the District Board claims to be entitled, was legally complete on 25-6-1950, within the meaning of cl. (2) of the agreement of 23-6-1950. I do not think, speaking for myself, that the aforesaid contentions are well-founded. The agreement clearly enough, was a grant in perpetuity, as the document expressly states, subject, however, to the right of purchase conferred by Section 41 of the Bengal Tramways Act. There is, I think, a well-understood distinction in law between a “right of purchase” arising out of a contract for sale, and a “sale” as defined in Section 54 of the Transfer of Property Act. That section itself makes it clear that a contract for sale does not, of itself, create any interest in or charge on the property. In my opinion, the agreement of 1899 was a perpetual lease, with a contract for sale of the undertaking on certain conditions. It is not in dispute that the requirements of S. 54 have not been fulfilled in this case. The contention of the learned Advocate General is that S. 54 has no application. I am unable to agree. By merely informing the Company that the District Board are going to exercise their right of purchase with effect from a particular date and expressing their willingness to pay the price calculated in the manner laid down in cl. (5), the purchase cannot be said to have been legally completed.

24. My view, therefore, is that there has been in law a breach of the agreement of 23-6-1950; but it is not a breach of an undertaking to this Court; nor does it constitute contempt of this Court. It is, I think, well settled that any and every breach of an agreement embodied in an order or decree of the Court does not constitute contempt. There must been element of defiance; a wilful disobedience to an order or process or in the breach of an undertaking given to Court. In dealing with what is called contempt in procedure, the position is thus summarised in Halsbury's Laws of England, vol. 1, p. 24, para. 37:

“Misconduct of this kind consists in disobedience to such orders for the payment of money as are excepted from the general provisions of the Debtors Act, 1869, abolishing imprisonment for debt, or in wilful disobedience to any order or process or in the breach of an undertaking given to the Court.”

As has been observed in State of Texas v. George W. White, 89 U.S 819; 22 Lawyer's Edn. 157, punishments for contempt of Court have two aspects, namely, (1) to vindicate the dignity of the Court from disrespect shown to it or its orders; (2) to compel performance of some order or decree of the Court, which it is in the powers of the party to perform and which he refuses to obey. In the present case, there is no order of the Court to which disrespect has been shown, or the performance of which should be compelled.

25. It is, however, the last question which has caused me the greatest anxiety in this case, and I confess to a feeling of hesitation as to the appropriate action to be taken. In Misc. Jud case No. 120 of 1950, the petitioner Company had, inter alia asked for an order restraining the District Board from taking possession of the undertaking except in due course of law. The allegation made in para. 40 of the petition of that case was that the chairman of the District Board had declared that he would assume control of the Railway on 24-6-1950 irrespective of whether the present management of the Company was willing or unwilling to transfer such control. On the 23rd June, the application was disposed of on an agreement between the parties, and no decision was given on merits. On the 25th June, the District Board assumed control. Prima facie, it looks as though the District Board, at any rate the Chairman, has taken possession under cover of the agreement and in breach thereof; and Mr. P.R Das has indignantly characterised the conduct of the Chairman as “sharp practice.” I must say that the impression left on my mind on a perusal of the petitions and affidavits is that the conduct of the District Board or rather of the Chairman, has not been straightforward or ingenuous. The agreement of 23-6-1950 did not have much meaning, if it were entered into with certain mental reservations. In para. 17 of the reply of the opposite party it is stated that the Chairman took steps, as advised, in accordance with a resolution of the Board of Directors of the Railway Company dated 16-6-1950. My learned brother has referred to that resolution. The action of the Chairman was not quite in accord with that resolution; nor is it stated on whose advice the Chairman acted. If, therefore, the District Board derived an advantage, probably an undue advantage, by seasons of a breach of the agreement of 23-6-1950, what should be the appropriate action? This is the question which has given me the greatest trouble.

26. Mr. P.R Das has contended that there must be an order or direction for restoration of possession by means of a writ of mandamus under Article 226, Constitution of India, irrespective of the question of contempt. He has relied on several Indian and English decisions (Narayan Sahu v. Thakurji Ramji 106 I.C 194 : (A.I.R (15) 1928 Pat. 49); Daniel v. Forguson, (1891) 2 Ch. 27 (39 W.R 699); Krehl v. Burrell, (1877) 7 Ch. D. 551 : (47 L.J Ch. 353); Von Joel v. Hornsey, (1895) 2 Ch. 774 (65 L.J Ch. 102) and Krehl v. Burrell, (1879) 11 Ch. D. 146 : (48 L.J Ch. 252). Most of those decisions related to cases where in a pending action for an injunction, the defendant on being served with notice tried to steal a march by completing a construction in respect of which the complaint was made, or evaded service of notice in order to present the Court with a fait accompli. In those circumstances the Court having seisin of the action issued orders to undo what was done to defeat the purpose of the action. In Narayan Sahu's case, 106 I.C 194 : (A.I.R (15) 1928 Pat. 49), a delivery of possession obtained by a party to the appeal under what was described as a “questionable move” was set aside by the appellate Court. None of those decisions are any authority for the proposition that a party who has encored into an agreement with another party can ask a superior Court for a writ of mandamus under Article 226 when illegally dispossessed by the latter party in breach of the agreement, instead of going to the ordinary Civil Court of competent jurisdiction for the necessary reliefs. I have great doubt if Article 223 of the Constitution can be invoked in a case of this nature. The aggrieved party in this case can get an effectual and adequate remedy by an ordinary action in the Civil Court—for enforcement of the agreement, for recovery of possession and damages, if any. The power to issue writs under Article 226 of the Constitution is an extraordinary power, and in several recent decisions of this Court it has been held that where there is an alternative adequate remedy, this Court will be reluctant to exercise its powers under Article 826 (See Misc. Jud case No. 142 of 1950 decided on 24-7-1950; Misc. Jud case nos. 53 and 155 of 1950 decided on 5-4-1950). Speaking of the nature of the high prerogative writ of mandamus, the position is thus stated in Halsbury's Laws of England, Vol. 9, pira 1269, p. 744:

“Its purpose is to supply defects of Justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual.”

I can see no reason for thinking that the alter-native legal remedy available to the aggrieved party in this case is less convenient, beneficial and effectual, except perhaps for the fact that the aggrieved party will have to pay fairly heavy court-fees for bringing an action in the ordinary Civil Court. Article 32(1) of the Constitution of India gives a guaranteed right to move the Supreme Court for the enforcement of fundamental rights. Article 226 gives the High Court power to issue directions, orders or writs for the enforcement of fundamental rights and for any other purpose. In a sense, the power under Article 226 is wider, because the power can be exercised for any other purpose: but that itself makes the exercise of the power discretionary for any other purpose. In England, the grant of, a writ of mandamus is, as a general rule, a matter for the discretion of the Court, and is not a writ of right (Halsbury's Laws of England, Vol. 9, para. 1270, p. 744). I do not think that the position is different under Article 226, Constitution of India.

27. Then, there is another aspect of the matter. It is very doubtful if on the petition filed originally in Misc. Jud case no. 120 of 1960, the petitioner Company would have got any order in their favour under Article 526. They were then in possession; and I greatly doubt if a mere apprehension of an illegal disturbance or dispossession which they would be justified in resisting, would have been a good ground for the issue of a writ in their favour—this in spite of the argument that a month's notice was required before an action against the District Board could be instituted. The decisions on which Mr. P.B Das relied in Tan Bug Taim v. Collector of Bombay, A.I.R (33) 1946 Bom. 216 : (47 Cr. L.J 594); Dinbai Petit v. M.S Noronha, A.I.R (33) 1946 Bom. 407 : (226 I.C 577) and Municipal Corporation for the City of Bombay v. Govind Laxman, A.I.R (36) 1949 Bom. 229 : (51 Bom. L.R 190), related to different facts where the alternative remedy could not be as effectual as the one asked for.

28. A very important consideration in this connection is the way the District Board got possession or assumed control on 25-6-1950. My learned brother has examined the affidavits on this part of the case, and has come to the conclusion—a conclusion with which I agree—that possession was taken, or rather control was assumed by the District Board, not by use of any force, but by reason of the fact that the working of the Railway was at a standstill by reason of the strike of the railway employees and these employees voluntarily went over and agreed to work under the District Board. Such assumption of control may be, and probably is, a breach of the agreement of 23-6-1950; but I do not think that such a breach is contempt of Court or in a mischief for the remedy of which the power of this Court under Article 226 of the Constitution can be invoked.

29. I have referred to the conduct of the District Board, and said that it has been disingenuous. The conduct of the petitioning Company has also been far from strictly correct.

30. If the District Board has shown an anxiety to assume control of the undertaking before all the formalities of the purchase have been completed, the petitioning Company has in its turn obstructed at every step the speedy termination of the arbitral proceeding in connection with the settlement of the price which the District Board have to pay (see in this connection the proceedings before the arbitrators, copies where of have been filed before us). I have expressed my views on some of the contentions raised, for the disposal of the present applications; but in view of the conduct of the parties there is no reason why they should not be left to fight out their battle in a properly constituted suit in a Civil Court of competent jurisdiction. I do not think that this is a proper case for the issue of a writ of mandamus under Article 226.

31. For these reasons, I concur in the orders proposed to be passed by my learned brother.

D.H

32. Petition dismissed.