1. The plaint in this suit was filed on the 18th January 1909 and the plaintiff is the daughter of one Ambaram Motichand who left property of a very considerable value, and the defendant is the executor of his Will. He is described in the plaint as a law-tout; bat whether or not he is so I do not know. The suit is for the construction of the Will in various particulars and also for an account.
2. On the 1st March 1909, Mr. Sethna was appointed Receiver, which I apprehend implies that it would be the duty of the executor to hand over all the property of the deceased in his hands to the Receiver, and also an order was made restaining the defendant from dealing with the property of the deceased. It appears from the proceedings, which I have gone through, that the order for Receiver could not be served upon the defendant until the 19th of March 1909 and on the 20th of March the following notice was written by the plaintiff's attorneys to the defendant's attorneys:
Please take notice that on Monday next the 22nd instant or so soon thereafter as Counsel can be heard, Counsel will move on behalf of the plaintiff before the Hon'ble Mr. Justice Russell on the grounds of the affidavit of Shivshanker Dalsukram copy whereof is sent herewith for an Order committing your client to jail for contempt of the Court he having failed to hand over to R.D. Sethna, Esquire, the Receiver appointed herein, the property in his possession of the estate of the late Ambaram Motichand in the plaint herein mentioned and for such other order as the Court may think proper to make for costs. The affidavit in support of notice of motion is sent herewith.
3. That notice is dated the 20th of March 1909 and it was served on the defendant's attorneys only and not upon the defendant; and on the 22nd March the notice came on for argument before me, when Mr. Davar for the defendant raised two objections to this notice. The first objection I will deal with first as it is one the least important. This objection is that four clear days at least had not elapsed between the service of the notice of motion and the day named for showing cause as directed by Rule 377 unless the Court or a Judge give special leave to the contrary.' The way I read those words is that it is open to the Court or a Judge to give special leave to the contrary at any time. In any emergent matter where a notice of motion has been given for less than four days, the Court if it thinks fit, can give special leave under the rule after such notice has been given; and, therefore, I do not think I ought to hold this objection of Mr. Davarto prevail. In my opinion this is a case in which the Court will be fully justified in not adhering to the strictness of that rule.
4. With regard to the other objection, however, it appears to me that different considerations must apply. A number of cases have been decided in the Bombay and Calcutta High Courts with reference to what the contempt of Court really is and with regard to its jurisdiction. Thus, in one case Martin v. Lawrence 4 C. 655 it has been held that the jurisdiction of the High Court to imprison for contempt is a jurisdiction which it has inherited from the old Supreme Court and was conferred upon that Court by the charters of the Crown, which invested it with all the powers and authority of the then Court of King's Bench and of the High Court of Chancery in Great Britain, and this jurisdiction has not been removed or affected by the Civil Procedure Code. To a similar effect is the case of. Navivdhoo v. Narotamdas Candas 7 B. 5 and also the leading case of Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal 10 C. 109; and, as mentioned in Mr. Mulla's Civil Procedure Code, the power to commit ' is amongst the inherent powers of the Court, a list of which is to be found at page 275 of that work.
5. It was held by the Privy Council, In re-Pollard v. The Chief Justice of Hong-Kong (1868) L.R. 2 P.C. 106 which is referred to with approval in Kashinath v. Daji Govind 7 Bom. H.C.A.C.J. 102 that in their Lordship's judgment, 'no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated and an opportunity of answering it given to him, and that in the present case their Lordships are not satisfied that a distinct charge of the offence was stated, with an offer to hear the answer thereto before sentence was passed.' Therefore, it appears that the proceeding for contempt of Court is in the nature of a criminal offence and to the same effect, as I read it, is the case of In Re: Vallabhdas Jairam Khimji Jairam 27 B. 394 which is an insolvency case but the principle seems to be the same; where it was held [following Ex parte Van Sandau (1844) 1 Phi 445] that in all criminal cases it is necessary that there should be a charge, a finding and a conviction as a foundation for the sentence and that as there was no charge, the order for imprisonment was wrongly made.
6. While I am on this point, I may also refer to the case of Balwantrao v. Ramchandra (1892) C.C. 614 where the Court say: 'It is admitted that the injunction of this Court was personally served on Ramchandra on the 28th April last.' I refer to that as showing that evidently the Court was of opinion that in that case personal service on Ramchandra was necessary.
7. Now Mr. Lowndes, for the plaintiff, raised a very ingenious argument upon the case. Mr. Davar referred to the case of Mandar v. Falcke (1891) Ch. 488. Mr. Lowndes said that that case showed that in England there was a distinction between 'attachment' and 'committal.' That, no doubt, was so before the Judicature Act, and in Callow v. Young (1887) 56 L.J. Ch. 690 it was held that attachment was the proper application in cases of omission and committal in cases of commission; that is to say, if a person did that which he was not entitled to do he ought to be committed, and if he did not do that which ho was ordered to do he ought to be attached. In India I find no distinction has ever been drawn between attachment' and 'committal'; and committal being to my mind a serious matter, seeing that committal is in the nature of a criminal proceeding, it is of the greatest possible importance that all applications to commit a person for contempt of this Court's order must be served upon him personally. Mander v. Falcke (1891) Ch. 488 it seems to one, is an authority to that effect and does not admit of the distinction upon the ground that Mr. Lowndes endeavoured to distinguish it; and knowing what the practice is in this country it seems to me, it is impossible to lay too great a stress upon the importance of the matters of this sort, because the power of committal is one of the most effectual powers--a power which the Court can exercise brevi manu and is the most powerful engine at its disposal. I can conceive no greater danger than if I were to hold that service of notice for committal of a person to jail was sufficient if it was served upon his attorneys alone. Further another danger one has to bear in mind in this country is that it is inconceivable that this Court would sanction notices being served upon attorneys of persons which would be in a language which would probably not be understood by the latter; and I would be extremely sorry to commit a person for not obeying a notice of motion which was served upon his attorneys in a language which he did not understand and non constal that it was ever explained to him. And I think I am justified in holding that where an application is made for disobedience it is necessary not only that the order should be served upon the defaulting party, but the notice to commit for disobedience thereof should also be served upon him. That has been the practice ever since the days of Lord Eldon and before that time.
8. It may, however, be said in the present case that the defendant ought to have protested at once and certainly it does not appear in his affidavit that he did protest; but Mr. Davar did raise the preliminary protest at once and said that he protested against this notice on the ground that it had not been served. Upon this point it must be remembered that it has been held over and over again that appearance is not a waiver of the objection on the ground of irregularity in a case affecting the liberty of the subject; and to the same effect will be found the rulings as to waiver in the Encyclopaedia of the laws of England. A man appearing cannot be held to waive a question which relates to the validity or invalidity of an order.
9. On being informed that the defendant had appealed from my original order appointing Mr. Sethna a Receiver, I was considerably impressed with that fact and thought that I ought not to make an order in this present matter, but should wait until the appeal had been decided; but from the case of Gordon v. Gordon (1904) P. 175 in my opinion, the fact of this appeal pending need not oblige me to stay further proceedings in the present matter. In that 'case Vaughan Williams, L. J., says:
If an order has been made in the exercise of the discretion of the Court and some one who is oppressed, or thinks himself oppressed, by that order, appeals, saying that the Court has exercised its discretion wrongly, that persons if he is in contempt cannot be heard to say anything of the kind until he has purged his contempt. Garstin v. Garstin (1865) 4 S & T. 73 is an instance of that kind.
10. Then he goes on:
But when you come to the case of an order which it is suggested may have been made without jurisdiction, if upon looking at the order one can see that that really is the ground of the appeal, it seems to me that such a case has always been treated as one in which the Court will entertain the objection to the order, though the person making the objection is in contempt.
11. That, therefore, draws the difference between an order made in the discretion of the Court and the case where the objection is that it is made without jurisdiction.
12. Under these circumstances I must now consider what I ought to do.
13. Mr. Lowndes now informs me that an order has been arranged, and the terms are as follows:
The defendant to hand over to the Receiver forthwith the receipts of the National Bank for the ornaments and the receipt of Nagar Dulcha for Rs. 15,000 both duly endorsed by him.
14. The defendant has given names of the alleged trustees, to whom he says he has handed over Rs. 60,000 to the plaintiff's attorneys, and hereby states that they are true names.
15. With reference to the twenty shares of the Textile Mills the defendant states that he sold them and repurchased them on his own account. The plaintiff is, therefore, satisfied with the injunction granted.
16. Defendant to give inspection of his accounts from to-morrow.
17. Order as above on the notice of motion.
18. Costs costs in the cause including the fresh notice given yesterday.
19. Affidavits taken as read.