1. In this matter the defendant Cassowary Ohaudhurani has filed exceptions to the report made by the Official Referee of this Court in pursuance of an order made on 6th May 1913. The report was made on 8th December 1916. A preliminary objection was taken on behalf of the plaintiff on the ground that as the defendant was in contempt she was not entitled to file exceptions to the report. It appears that the defendant is an executrix under the will of her late husband and that there was another executor since deceased. This suit was filed on 27th April 1912 on behalf of the adopted son of the defendant against her and her co-executor for, inter alia, on account of the dealings of the defendant and her co-executor with the estate. To put the matter shortly, accounts were ordered and the defendant as one of the accounting parties was ordered to file her acconnts. A preliminary decree was passed on 6th May 1913. An order was made on 6th May 1916, by Greaves, J., directing the defendant to file her accounts. On 7th August 1916, Chaudhuri, J., passed an order the material portion of which is:

I gave her time up to 15th September to file her accounts. This date is fixed peremptorily. In default the referee to proceed without her accounts and she will be precluded from filing any accounts thereafter and the reference will be treated as being heard ex parte against her.

2. Against this order the defendant appealed. The judgment of the appeal Court was:

We have come to the conclusion that the matters which were before the learned Judge were matters for his discretion and on the materials before us we cannot say that he has exorcised his discretion wrongly. We desire to make it clear that the applicant, the executrix, is not precluded by the order as we construe it from appearing at the reference. If any order is necessary (I do not think it is necessary) to make it quite clear we include in our judgment a direction that she shall have a right to appear at the reference.

3. The appeal was dismissed with costs.

4. It was argued on behalf of the plaintiff that the defendant having failed to comply with the order of the Court was and is in contempt, citing Gordon v. Gordon [1904] P. 163 and Daniel's Chancery Practice, Vol. I, p. 786. Being in contempt, the defendant, it was argued, could not move the Court and under the rules and orders the application is a motion. For the defendant, it was contended that it had never been suggested that she was in contempt, and that the judgment of the appeal Court, an it gave her the right to appear, reversed the order of Chaudhuri, J., in so far as it directed that the reference should proceed ex parte against the defendant.

5. Now undoubtedly the defendant, an accounting party, was in contempt inasmuch as she failed to obey the orders of the Court that she was to file her accounts. It is also clear that the order of Chaudhuri, J., was affirmed in every particular by the Court of Appeal, although it was construed. This was the view taken of the judgment by the defendant--see exception filed, ground 7. It was argued for the plaintiff that all the Court of appeal did was to point out that although the reference would proceed ex parte the defendant would have the rights allowed under the rules and Orders, Ch. 14, Rule 3. In my opinion a defendant in contempt cannot claim as of right the benefit of the procedure of this Court except for the sole purpose of defending herself, and how far those rights extend is a matter for the discretion of the Court and this last point accounts for the fact that in circumstances apparently similar the Court has and has not allowed a defendant to appear : See Hewitt v. McCartney [1807] 13 Ves. 560 per Lord Eldon.

6. The point which requires consideration is this. Undoubtedly this Court treated the defendant as being in contempt, but the order passed by Chaudhuri, J., was that if she failed to obey the order of the Court certain penalties would follow : one penalty was that the reference would proceed ex parte. Under the practice of this Court a party who has allowed a reference to proceed ex parte may still file exceptions. The question therefore arises whether the order of this Court having specified the consequences of a failure to file accounts must be taken to have limited the consequences or whether the defendant after incurring the specified penalty is still in contempt.

7. It was argued that as the Court had imposed a penalty on the defendant for her contempt, that should be regarded as analogous to a conviction and sentence and that it was not open to the Court to treat the defendant, once the penalty had been exacted, as being still in contempt and still liable to any further disability or penalty. But the form of the original order was that in the event of a failure to obey the order of the Court, certain consequence would follow and in the Court of appeal that order only was before the Court, and although the defendant had then failed to obey the order, the Court did not deal with the matter as, so to speak, a completed contempt. And it seems to me that it would be an entirely wrong construction to place on this order that the Court finally or at all assessed a penalty for prospective contempt and informed the defendant of the terms on which she might defy the order of this Court. There are two aspects of contempt. A distinction must be drawn between a process to assist a party against an opponent who defies the orders of the Court, and a process to maintain the dignity of the Court : fee Setvard v. Paterson [1897] 1 Ch. 545.

8. A party against whom an order has been made under Order 11, Rule 21, will not be heard to say that that order has cleared his contempt ; the Court may proceed to attach him See Navivahoo v. Narotamdas Candas [1883] 7 Bom. 5. A litigant, unlike a practitioner in the Court, is not treated as in contempt in any but the suit in connexion with which the contempt has been committed, but unless and until his contempt has been cleared from both aspects of the offence, he continues in contempt. The order in this ease, in my opinion, should be regarded merely as directions to the Official Referee, and not as a final settlement with the defendant in the event of her failure to obey the order of the Court. 10. [therefore hold that the defendant is still in contempt and that there is only one way in which contempt in a matter of procedure can be cleared and that is by obedience to the order of the Court, for otherwise the defendant might obtain an advantage from her own contempt.

9. But, assuming that defendant is still in contempt and has in no way cleared her contempt, it does not follow that she is not entitled to file these exceptions. Mr. H.D. Bose laid great strees on the judgment of Sterling, J. in Gordon v. Gordon [1904] P 163. But in that case Vaughan Williams L.J. laid down the proposition that a defendant though in contempt will be heard in some cases in which all that he is seeking is to be heard in respect of matters of defence. Sterling L.J. cited a passage from a judgment of Lord Cotten-ham's which certainly reads as if such a. defendant will only be heard if an order subsequent to her contempt was made without jurisdiction or on the ground that there was some irregularity in the order. But Lord Cottenham added in his judgment a passage not quoted by Sterling L.J., namely:

but he was not generally entitled to take a proceeding in the cause for his own benefit. That there were oxceptions to the last rule, but they were few in number." : see Chuck v. Cremer v. [1846] 1 Coop. C.C. 247 and in King v. Bryant [1838] 3 Myl. & Cr. 191.

10. He made an order which throws a good deal of light on his view of the law. In that case the defendant to an action for foreclosure was committed to the Fleet for failure to file his reply. While he was there, the plaintiff proceeded to obtain an order for an account and served the defendant with no notice of it. The plaintiff then served no notice of an application for confirmation of the Master's report. The defendant, who was still in the Fleet, moved the Court to set aside these proceedings, and Lord Cottenham granted his application on the ground that though in contempt a defendant was not to be deprived of his property without being heard in his defence.

11. The Lord Chancellor said the Court would not hear a party in contempt coming himself into Court to take any advantage of the proceedings in the cause, yet such a party was entitled to appear and resist any proceeding against him and that it would be a most unjust extension of the rule against parties in contempt to take a way a man's estate without giving him any opportunity of coming in and protecting himself.

12. It is true that Cozens-Hardy, L.J., deelined in Gordon v. Gordon [1904] P 163 to assent to any proposition beyond that necessary in that case--namely, that a defendant in contempt could move against an order made without jurisdiction. Still the view taken by Vaughan Williams L.J. was, if I may respectfully say so, more in accord with the authorities and Sterling L.J. was not prepared to dissent without further consideration from a view taken by Lord Cottenham. I cannot distinguish this case from King v. Bryant [1838] 3 Myl. & Cr. 191 and Wigram, V.C. in Morrison v. Morrison [1844] 4 Hare 590, held that a defendant in contempt for non-payment of an order for costs, was entitled to file exceptions to a report of the Master, for that was merely a step taken in his own defence. There the default was not wilful, but in King v. Bryant [1838] 3 Myl. & Cr. 191 as the defendant was committed to the Fleet his default was presumably wilful and therefore assuming that the defendant in this ease was aud is in wilful contempt of the Court, I am unable to hold that she is not entitled to be heard, but as it is not suggested that the report was made 'without jurisdiction or that any irregularity occurred, she is only entitled to be heard in her own defence: see Morrison v. Morrison [1844] 4 Hare 590. The view which I take of the matter seems to me to be in exact accord with that taken by the Court of Appeal. The defendant was allowed by both Courts to appear and that meant to appear in order to defend herself and no more. The argument that liberty to appear presupposed that the defendant was not treated as in contempt was founded on a misapprehension of the position of a defendant in contempt.

13. As I read the cases it was never the rule that a party in contempt in a matter of procedure was not entitled to be heard in his own defence, for the penalty as far as the Court is concerned in maintaining its own dignity may be assessed by the Court as it it were as it is, a criminal offence, but is by no means limited to that, nor is the contempt cleared whatever penalty be imposed until the Court's order is obeyed, but as far as the other side is concerned the penalty is to be limited to frustrating the effect of a failure to comply with the procedure and does not, if that can be avoided, give him any further advantage.

14. In this matter I have considered the provisions of Order 11, Rule 21, Civil P.C. It is clear that the rule in no way limits the powers of the Court : see Hassonbhoy v. Cowasji Jehangir [1881] 7 Bom. 1, Navivahoo v. Norottandas Candas [1883] 7 Bom. 5 and Godu Ram v. Surajmal [1905] 27 All. 380. The order appears to have been considered in only two cases in this Court by Woodroffe, J. in Kamalakhy Dossee v. Jotindra Mohan Banerjee [1907] 6 C.L.J. 374 and Okinealy, J., in Kesharia Acoomar Sreesungje v. Patooah Set [1898] 2 C.W.N. 676. I find nothing in these decisions which is not in accord with the yiews expressed above, though in the Calcutta decisions the position of a party in contempt was not considered in any detail.

15. I must add, that although Lord Cottenham in Smith v. Smith [1838] 1 C.P. Cooper 110 where the defendant was imprisoned for breach of an injunction in the cause, held that the rule that a defendant in contempt shall not be heard, would not extend to a step necessitated by the proceedings of the plaintiff, still in Hewitt v. McCartney [1807] 13 Ves. 560, which was a suit for foreclosure, the defendant not having put in an answer and stood out all process for contempt, applied for the usual reference although the cause was set down to take a decree pro confesso, Lord Eldon said that the effect of the contempt according to the law of every Court was that the defendant could not come in upon such a motion. But in my opinion I am bound by the order of the Court of appeal in this suit which gave the defendant the right to appear at the reference and I think impliedly gave her the right to file exceptions, but in my opinion as I have endeavoured to explain that order, if I may respectfully say so, is in entire accord with the view of Vcughan Williams L.J. in Gordon v. Gordon [1904] P 163 and of Lord Cottenham and Wigram V.C. in the cases cited above and as I have been able to find no authority which allows a defendant in contempt to do more than protect herself except in exceptional cases. I will hear the exceptions, but will confine the defendant strictly to a defence of her rights, and as she has not yet filed her accounts she is still bound by the order that she can file no accounts and in my opinion the Court is bound to see that the plaintiff is not placed at a disadvantage by reason of the defendant's failure to file her accounts.

16. The defendant argued that the plaintiff waived contempt citing anon 15 Ves. 174. It seems to me that the alleged waiver, which is that the defendant was allowed by the Official Referee to file a state of facts and the plaintiff thereupon filed his answer to that state of facts, does not come within this ruling, and that there is no case of waiver of contempt in this case.