1. This is a notice of motion dated 11th December 1931, on behalf of the defendants to the suit for an order that Bhagwandas Maganbhai, the respondent, should be committed to jail for contempt of the Court's order dated 16th October 1931. Mr. Engineer, who appears for the defendants, has sought to go into the previous history of the matters which led up to the passing of the order of 16th October 1931. In my opinion, it is quite unnecessary for the proper determination of this notice of motion to go into such matters, and on the authority of Navivahoo v. Narotamdas Gandas (1), to which the Advocate-General who appears for the respondent was good enough to draw my attention. I also think that it is improper.
2. The order of 16th October 1931 was a consent order made on hearing the attorneys for the plaintiffs, the attorneys for the defendants, and the attorneys for the respondent, who had acted as a receiver in the suit. By that consent order the respondent was ordered to pay to defendant 4, as the present receiver in the suit, the sum of Rs. 16,500 due and payable by the respondent as receiver of the estate of Bai Sonabai Bapu Velinkar mentioned in the plaint. That sum was by the order directed to be paid in the following manner, namely, Rs. 2,000 on or before 22nd October 1931, a further sum of Rs. 2,000 on or before 29th October 1931, and the balance within five months from the date of the order. It was further provided by consent that the plaintiffs undertook to pay the said sum of Rs. 16,500 payable by the respondent from their share in the estate if the respondent failed to pay the same within five months from the date of the order. It was also ordered that if the sum of Rs. 16,500 was not paid by the respondent within five months from the date of the order, he should pay interest at the rate of 7 per cent per annum from that date till payment on such sum as might then remain due.
3. This order of 16th October 1931 was served on the repondent's attorneys on 19th October 1931. A certified copy of it was served on the respondent personally on 21st December 1931. The notice of motion, which was dated 11th December 1931, was served personally on the respondent on 22nd January 1932, and was filed on 28th January 1932. The first point taken by the Advocate-General in answer is that the order in this case ought to have been personally served. He drew my attention to Oswald on Contempt, Edn. 3, p. 199, whore it is stated that the judgment or order should be served on the party personally, except in the cases therein mentioned, none of which apply to the case before me. Mr. Engineer, on the other hand, has contended that in order to justify committal for breach of the order in question, it is not necessary that it should have been served upon the respondent, if it is established that he had notice of it.
4. In support of his submission that the respondent had notice of the order he relies, first, upon the fact that it was an order made by the consent of the respondent's attorneys, and next upon the fact that when the respondent failed to pay the two sums of Rs. 2,000 on 22nd and 29th October 1931, respectively, letters were written by the defendants' attorneys dated 23rd October and 2nd November 1931 to the respondent's attorneys complaining of this fact and threatening proceedings, and that in answer thereto the respondent's attorneys by a letter dated 3rd November 1931, expressed the respondent's regret for his failure to pay, stated that the respondent would pay after Diwali, and requesting that proceedings might not be taken. Those letters are set out as Ex. A to the affidavit of Waman Narayan Velinkar, dated 11th December 1931, in support of the notice of motion. The Advocate-General, on the other hand, has drawn attention to the fact that there is so far as personal service of the order is required, a distinction between an order which merely prohibits a person from doing something, and an order which requires him to do something. In the former case personal service is not essential, and it will be enough if it be proved that the party had notice all unde: see Oswald on Contempt, p. 203.
5. In the latter case personal service is essential, and it has been held that the fact that the person ordered to do an act was actually in Court when the order was made is not a ground for dispensing with personal service of it: see Tuck in re, March v. Loosemore (2). Moreover it has been laid down in Bai Moolbai v. Chunilal Pitamber (3) that service upon a party's attorneys, where an application is made for committal of a person to jail for disobedience of the Court's order, is not sufficient, and that personal service must be proved. Accordingly, I hold that the mere service of the order of 16th October 1931 upon the respondent's attorneys on 19th October 1931, is not sufficient.
6. Mr. Engineer has drawn my attention to the fact that at any rate before the notice of motion was served the respondent had been personally served with the order of 16th October 1931. That is perfectly true. The notice of motion however was dated 11th December 1931, and the affidavit in support of it was sworn on the same day. The allegation in the affidavit is that on that day the respondent was guilty of contempt. In my opinion this is not the case. I hold that personal service of the order upon the respondent was necessary, and that until he had been personally served, he was not guilty of any contempt. Accordingly, the notice of motion having been taken out and the affidavit in support of it having been sworn before service of the order, in my opinion, it is no answer to say that long after those dates, and merely before the notice of motion was served upon the respondent he was in fact served with the order. In my view before a notice of motion for contempt can properly be taken out, personal service of the order in a case such as that before me must have been effected.
7. The next point taken by the Advocate-General is that the charge ought to have been specifically set out in the notice of motion. It is merely stated in the notice of motion that the Court will be asked for an order to commit the respondent to jail for contempt of the Court's order. What the particular contempt alleged is not stated. It is contended in answer by Mr. Engineer that sufficient particularity as to the nature of the charge is given in para 9 of the affidavit of Waman Narayan Velinkar elated 11th December 1931, and that notice is given by the notice of motion that affidavit will be relied upon. His submission is that all that is required is that the respondent shall be given notice of the precise charges against him in order that he may have an opportunity of knowing them and of meeting them if he can. There are some useful observations on the question of giving precise notice of the charge in Russell, J's judgment in Bat Moolbai v. Chunilal Pitamber to which I have already referred at p. 633, where that learned Judge points out that proceedings for contempt of Court are in the nature of a criminal offence, and that precise charges should accordingly be framed. In my opinion, the precise breach or breaches of the order complained of should be set out in the notice of motion itself and the respondent should not be left to ascertain, if he can from the affidavit relied upon in support what the charges are. It may well be that in para 9 of the affidavit in support notice of the breaches complained of has been given in this particular case. But in my judgment, a respondent ought not to be left to gather, if he can, from the terms of the affidavit in support what is the precise nature of the charge brought against him. In this connexion it is useful to refer to the form of notice of motion for contempt for breach of a judgment or order, which is set out in App. 2, at p. 272, in Oswald on Contempt. It will be seen that form contemplates the precise nature of the breach of the judgment or order being set out in the notice of motion. I hold therefore that the notice of motion in the case is defective.
8. Next it has been contended by the Advocate-General that the order of 16th October 1931 is a mere order for the payment of money, and that it can only be enforced in India by execution and not by proceedings for committal for contempt. He has relied upon Advocate-General of Bombay v. Gangji Akhai (4). In that case, on 1st September 1830, in an administration suit in which Gangji Akhai as executor of a will was defendant, a receiver was appointed, and Gangji Akhai was ordered to deliver to the receiver certain Government promissory notes of the value of Rs. 45,000 belonging to the estate, which was the subject-matter of the suit. He did not obey the order, and absconded from Bombay, and on 16th March 1891, in his absence, a rule for his attachment for contempt was made absolute. It was afterwards ascertained that he had used the notes for his own purpose. A warrant was issued for his arrest, and he was apprehended, and on 23rd April 1891, he was convicted of criminal breach of trust and sentenced to eighteen months imprisonment. Previous to this trial he had been committed to jail for contempt of the order of September 1890, with the result that after his conviction he was in jail both under his sentence and under the order for contempt. On 4th October 1892, the Court passed a money decree in the administration suit against the deferdant for Rs. 80,000 and costs. The sentence passed upon the defendant for the criminal offence expired on 22nd October 1892. Applications for his release from imprisonment; under the order for contempt were made in December 1892 and 10th April 1893, but were refused. An application was then again made by motion for his release.
9. It was held by Farran, J. that he should be released. The learned Judge took the view that the right of the plaintiff to demand the promissory notes was merged in the money decree, and that the right to demand the notes was gone, and that the order that he should deliver them up to the receiver had ceased to be operative. Consequently he held that the commitment, in so far as it was intended to enforce obedience to the order of 1st September 1890, could no longer be continued on that ground. In his view it was the decree and not the order which, after the passing of the decree, constituted the measure of the obligation between the parties. He further held that was a simple money decree, and that it was contrary to the expressly declared will of the legislature and to all modern principle and precedent to keep a defendant under commitment for contempt to compel him to pay a money decree. Relying upon this authority the Advocate-General submitted that the order of 16th October 1931, was only enforceable under the provisions of O. 21. In this connexion he referred to Rr. 11 and 37 of that order. He drew attention also to section 36 of the cpc, which lays down that the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. He also drew attention to S. 58 of the Code where is laid down that where a person is detained in the civil prison in execution of a decree, he shall not be detained for more than six months, if the decree exceeds Rs. 50. Accordingly, the Advocate-General submitted that if the procedure now sought to be enforced against a receiver were to be given effect to, any executor or trustee, who failed to pay moneys pursuant to an order of the Court might be liable to be kept in prison until he paid, and for a longer period than the six months contemplated by the provisions of the Code of Civil Procedure above referred to.
10. On the other hand, Mr. Engineer submitted that the argument of the learned Advocate-General had no application to the case of a receiver who is an officer of the Court. He relied upon In re Gent, Gent-Davis v. Harris (5), which lays down that a receiver is liable to attachment for breach of an order of the Court to pay money, whether he has been discharged from being a receiver or not. The Advocate-General in answer pointed out that, as appears from the report in that case, a receiver in England who receives money is in a fiduciary position and as such comes within the meaning of Excep. 3 to Section 4 of the Debtors Act, 1869, and he contended that was really the basis of the Court's decision that a receiver in England was liable to attachment for breach of an order to pay money. He submitted chat that case would have no application in India where it is a part of the law of the land that any person, who does not pay money pursuant to a decree or an order is liable to execution and to be committed to jail. Mr. Engineer further relied upon Martin v. Lawrence (6). That was a case where the decree in an administration suit directed A party to the suit, to pay over a sum of money, which she admitted was in her hands, to her own attorney in the suit, to be applied by him as directed by the decree. She refused to pay over the money, and was imprisoned for disobedience to the Court's order. After she had been in prison for six months, she applied to the Judge of the Court below, under section 341 of the cpc then in force, to be discharged. The order was refused. It was held on appeal that the proceeding under which she had been imprisoned was not in execution of a decree, but that she was imprisoned under process of contempt, and that the provisions of Ss. 341 and 342 did not apply to the case. It was held by White, J. in that case that the jurisdiction of the High Court to imprison for contempt is a jurisdiction that it has inherited from the old Supreme Court, and that this jurisdiction has not been re-moved or affected by the Code of Civil Procedure. The Advocate-General admitted that was an authority against his contention in the present case, but he submitted that it was in conflict with the case relied upon by him in Advocate-General of Bombay v. Gangji Akhai to which I have referred, and submitted that authority was binding upon me. I think that this is so, and that in the case of an administrator or executor or trustee proceedings by way of contempt for failure to comply with an order to pay money would be had in law. I am not however satisfied that this is so in the case of a person, who is an officer of the Court, such as a receiver. Mr. Engineer relied upon Hassonbhoy v. Cawasji Jehangir Jassawalla (7) and Navivahoo v. Narotamdas Candas in support of his contention that the Court can commit persons for breach of their orders. In those two cases the alleged contempt was failure to comply with orders for inspection and discovery. The, learned Advocate-General does not dispute that this Court inherits the powers of the English Courts so far as the power to commit for contempt for breach of its orders goes. But he submits that no such power exists where the breach of the order complained of is a failure to pay a sum of money. On the authority of the case of Advocate-General of Bombay v. Gangji Akhai , which he relies on I think that is so, in the case of failure by a person who is not an officer of the Court to comply with an order of the Court to pay money. But that decisions not, in my opinion, an authority for the proposition that the Court is not empowered to punish on proceedings for contempt one of its own officers for failure to comply with the breach of the Court's order, whatever that failure may be, even if it does amount to failure to comply with an order to pay money. Accordingly, if I had to decide this motion on that point alone, I should be against the contention of the Advocate-General, and should hold that it was open to me, if I thought fit, to commit a receiver who had been guilty of failure to comply with the Court's order to pay money as such receiver. The next point taken by the Advocate-General is that the order of 16th October 1931, on the face of it itself contemplates the possibility of default on the part of the receiver. He accordingly contends that the breach of such an order ought not to be regarded as punishable by contempt proceedings. In answer to this Mr. Engineer has drawn my attention to a passage in Kerr on Receivers, Edn. 9, p. 343, which is in these terms:
“Where a receiver neglects to bring in his accounts or having brought them in fail to pay the balance certified to be due from him within the time limited, and has been proceeded against for the contempt, of Court, the party prosecuting the contempt may proceed against the sureties. But he is not at liberty to sun the sureties until he has taken proceedings against the receiver for the contempt, unless the receiver has become bankrupt, or in can be shown that proceedings against him for contempt would be useless.”
11. Mr. Engineer relies on this passage and submits that it would not be open to him to enforce the undertaking given by the plaintiffs in the consent order to pay if the respondent makes a default without taking contempt proceedings against the respondent. An answer to this appears to me to be that it could have been open to the present defendants, if they had been so minded to enforce the order by execution. I do not however say that they might not also have proceeded by way of contempt proceedings, if they had taken the necessary and proper steps as regards service of the order the breach of which was complained of. The mere fact that the plaintiffs undertook to pay the moneys payable by the respondent if he ailed to pay does not in my opinion in any way relieve the respondent from his obligation to obey the Court's order Moreover, as appears from the terms of the order itself, the plaintiffs' undertaking only comes into operation if the respondent makes a default for a period of five-months from the date of the order. That, time has not yet arrived. Accordingly, it seems to me that the contention of the Advocate-General that merely because the defendants have got the security of the plaintiffs they are debarred from taking contempt proceedings is illfounded.
12. On the other hand even if the contempt proceedings had been in order as regards personal service and the form of the notice of motion, the Court would have had to consider whether in the particular circumstances of the case it would commit the respondent for contempt. In a case like the present, where the order so sought to be enforced is a consent order, where on the face of it contemplates a possible breach by the respondent, where it provides for the payment of interest if he does make a default and where security is provided for upon the footing that possibly he may make a default, I think that the Court ought to hesitate very considerably before committing the respondent to prison for contempt. Even if the proceedings had been in order in this case, in the exercise of my decretion I should have declined to do so. In the result this notice of motion will be dismissed with costs.
R.K
13. Motion dismissed.