21 rule 16, Civil Procedure Code merely permits the executing court to allow the assignee to execute the decree. But if the assignee does not come forward, the executing court can by no stretch of imagination prevent the decree-holder from executing his decree. That is the right of the every decree-holder. Thus Order 21, rule 16, Civil Procedure Code, will not at all be attracted to such a situation and although the respondent might have declared that he had assigned the right under the decree in favor of the defense Department, he cannot be prevented from executing the decree. If the assignment be valid the execution will be for the benefit of the respondent himself'.
(8) I am thus of the considered opinion that the petitioner has locus standi to continue the execution proceedings inpursuance of the permission granted under Section 21 of the Act. In all the cited cases the decree-holder took proceedings after assignment. In the case before me execution proceedings were initiated on 5th May, 1979 i.e. prior to the sale of the property by the petitioner in favor of Mrs. Kunj Gupta which took place on 2Jth May, 1979. There is thus no force in the objection raised by the respondent that all proceedings before the Additional Controller are null and void or that the petitioner has no locus standi to continue the execution proceedings after 29th May, 1979.
(9) Learned counsel for the respondent next argues that the time was granted by the petitioner to the respondent to vacate the promises up to 30th June, 1980 and the same was granted by the controller and there is no mention of any undertaking in the order dated 24th August, 1979 and that it was merely a compromise and if the respondent did not deliver possession up to 30th June, 1980 it was not violation of any undertaking. In Bajranglal Gangadhar Khernka and another vs . Kapurchand Ltd. : AIR1950Bom336 the Division Bench observed as under:
'THEREis no reason why even in a consent decree a party may not give an undertaking to the Court. Although the court may be bound to record a compromise, still, when the court passes a decree, it puts its imprimnture upon those terms and makes the terms a rule of the court; and it would be open to the court, before it did so, to accept and undertaking given by a party to the Court. thereforee there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the court in the consent decree, which undertaking can be enforced by proper committal proceedings',
(10) In the instant case before me the statement is made by the respondent to the court i.e. the Additional Controller. It is true that it was done with the consent of the petitioner. The petitioner accepted the undertaking of the respondent and agreed not to take possession till 30th June, 1980. This is an undertaking to the court on the basis of the compromise between the parties. It was further held in the said judgment by Chagia C.J. that, 'an undertaking entered into or given to the court by a party or his counsel or solicitor is equivalent to and has the effect of an order of the Court .................When an undertaking is given by a party to the court, it becomes an order of the court and a particular mode is prescribed for enforcing that particular order. That mode is that proceedings for contempt can be taken out for the enforcement of that order'. The Supreme Court in Babu Ram Gupta vs . Sudhir Bhasin and another : 1979CriLJ952 observed as follows .
'INfact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contenner by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution'.
(11) The Supreme Court regarding compromise and an undertaking given by the party observed, 'There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by their executing the order or getting an injunction from the Court'. In the instant case before me there is compromise between the parties as well as undertaking by the respondent on the basis of which the Additional Controller passed the order dated 24th August, 1979. Learned counsel for the respondent further submits that disobedience of a void order is not contempt of court and relies upon Sultan Ali Nanghiona s/o Muhammad Ali vs. Nur Hussain Air 1949 Lah 131 and para 42, Vol. 17 of American Jurisprudence 2nd Edition. He refers to the following observations in para 42 Vol. 17 American Jurisprudence, 2nd Edition :
'NEVERTHELESS,it is frequently declared that the disobedience of an order made without or in excess of jurisdiction is not punishable as contempt. In other language, it is said to be no contempt to disobey a void order'.
(12) The crucial question however is whether the order passed in proceedings under Section 21 of the Act a void order. The answer is in the negative.
(13) Learned councel next submits that the respondent has a right to remain in possession as the permission under Section 21 of the Act was invalid, erroneous or void. He says that he is unable to comply with the order to deliver possession on account of transfer of property by the petitioner in favor of Mrs. Gupta. As already stated, the petitioner has a right to continue the execution proceedings as long as the transferee does not choose to get herself substituted. Learned counsel next submits that all these questions arise also before the executing court i.e. before the Additional Controller where the petitioner has taken proceedings for revival of the execution application with a view to obtain possession and which proceedings were instituted prior to institution of the present contempt petition. He thereforee submits that the contempt petition is premature and in any case the same is liable to be stayed till the decision of the matter by the executing court. There is no ground for stay of the contempt proceedings. The respondent has raised objections which are not tenable in law with a view to disobey willfully the solemn undertaking dated 24th Aagust, 1979 after getting his objections dismissed. The Civil contempt involves disobedience to a court's order affecting the rights of other parties to that order. The purpose of the contempt proceedings in such a cae is to secure compliance with the order of the court. If no proceedings are taken in this petition it would amount to giving a license to flout and violate the undertaking given by him. He has argued all his objections before me arising in proceedings under Section 21 of the Act. His objections are meaningless simply on the ground that after getting his objections dismissed he is barred under the principles of rest judicata and the doctrine of estoppel from re-agitating the same.
(14) Learned counsel for the petitioner on the other hand contends that it is not at all necessary for proper determination of the present contempt petition to go into the previous history of the case which led to the giving of the undertaking by the respondent on 24th August, 1979. He submits that the respondent has willfully committed the breach of the undertaking given to the court and thereforee he should be punished. He further submits that the respondent is resisting with all his might to violate the undertaking. It is stated that after the expiry of the period of undertaking on 30th June, 1980 the respondent filed a caveat before the Additional Controller to resist the order for the recovery of possession. When the petitioner filed an application for revival of execution proceedings and for issue of warrant of possession on 1st July, 19 0, the respondent again filed objection against the issue of warrant of possession. His actions before the Additional Controller i.e., the executing court and in this court in reply to the present contempt petition show that he has no intention to fulfill his undertaking. He played a fraud With the court and obtained the time without any intention to vacate the premises by 30th June, 1980. It seems to be correct that in contempt proceedings it is not necessary to go into the previous history of the case. The court is not concerned with the right or wrong order paused by the court prior to the undertaking given by a litigant. In Kruthivanti Kutumba Rao vs . Muthi Venkata Subha Rao and others, : AIR1969AP47 it has been held whether order is valid or irregular unless it is vacated, it has got to be obeyed '. Similar are the observations made in Subodh Gopal Base vs . Dalmia Jam & Co. Ltd. and others, : AIR1951Pat266 . In Narain Singh vs . S. Hardayal Singh Harika, Executive Officer, Municipal Committee, Patiala, the court made the following observation:
'SOlong as the injunction order has not been vacated or modified by the court granting it, or has not been reversed on appeal, no matter how unreasonable and unjust the injunction may be. the order must be obeyed. Violation of the order of injunction cannot be excused on the ground, that though the court acted within its jurisdiction but the order that it passed was erroneous.'
(15) I am of the confirmed view after hearing the arguments of the learned counsel for the respondent that the order passed under Section 21 of the Act was not erroneous, that the same was passed in accordance with law, that the respondent having withdrawn his objections to the permission under Section 21 of the Act cannot re-agitate the same. lam also of the view that it is not necessary to go into the history of the proceedings under Section 21 of the Act up to the date i.e.. 24th August, 1979 when the respondent gave the undertaking. In this view I am supported by the observations made in Jayantilal Hiralal & Co. vs. Human Narayan Velinkar, Air 1932 Bombay 638 to the following effect:
'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.'
(16) Learned counsel for the petitioner further submits that the civil contempt, what is called contempt in procedure 'bears a two-fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the court in the public interest '(Halsbury's Laws of England, Third Edition, Vol.8Para38). la Phonographic Performance Ltd. vs. Amusement Caterers (Peckham) Ltd. 1963 (3) The All England Law Reports, 493, contemner complied with the order but punishment was inflicted on him because it was found that he was treating the order of the court as not worthy of notice. It is now well known that a breach of the undertaking is misconduct amounting to contempt. Civil contempt has been defined by Section 2(b) of the Contempt of Courts Act, 1971 as 'willful disobedience to any judgment, decree, direction order, writ or other process of a court or willful breach of an undertaking given to a court.' From the narration of the facts of the present case and the steps taken by the respondent from time to time to resist delivery of possession in pursuance of the undertaking dated 24th August, 1979 leaves no doubt in my mind that the respondent has been disobeying the undertaking given by him with full knowledge of its consequences. The respondent is contesting the execution proceedings for recovery of possession before the Additional Controller. He has raised all the possible untenable objections to the present contempt petition. He has challenged the jurisdiction of the Controller although he withdrew his objections before the Controller. He thinks that there is no time limit for a judgment dettor to resilt delivery of possession. He has no regard for the statement made by him. He has no regard for the undertaking given by him on 24th August, 1979. After the arguments by the learned counsel for the parties, I recorded the statement of the respondent-contemner on 9th October 1980. He admits that he gave the undertaking, that his statement was recorded by the Additional Controller containing the said undertaking dated 24th August 1979, he admits that he is still in possession of the premises and that he and his family are in possession of the same. When I asked him if he was prepared to deliver vacant possession of the premises he avoided the question thrice. On further asking he showed his willingness to deliver possession of the premises to the petitioner. I thereafter asked him when he would deliver possession and the answer given is as follows .'
'I will require a reasonable time to vacate the premises and I have not given a thought what would be the reasonable time for delivery of possession.'
(17) This shows that he has no desire to deliver possession for the time being unless compelled to do so. This is willful disobedience of the undertaking which was incorporated in the order dated 24th August, 1979 of the Additional Controller. After giving my careful consideration to the facts of the present case, I am of the view that sentence of fine under section 12 of the Contempt of Courts Act would be insufficient and that sentence of imprisonment is necessary for the ends of justice.
(18) I hold that the respondent is guilty of willful breach of the undertaking given by him to the Additional Controller, Delhi on 24th August, 1979. He is not prepared to abide by it. The court is not powerless. It has power to enforce an undertaking. It can be enforced by commital and execution. I, thereforee, make the following orders :
(I)I hold Kaushal Kumar, respondent guilty of contempt of court. Accordingly, I sentence him to simple imprisonment for six months and a fine of Rs. 2000.00under section 12 of the contempt of courts Act, 1971. He is directed to be taken in custody. (ii) Vacant possession of the first floor of the premises at D-70, Panchsheel Enclave, Masjid Moth Residential Scheme, New Delhi be got delivered to the petitioner or her attorney Mr. K.C. Syal. Warrant of possession be issued by the registry of this court with respect to the said premises against the respondent and all persons who may be in possession of the same. If necessary the locks may be broken and doors removed for delivery of possession. Police aid be also provided. The respondent shall pay Rs. 200.00 costs of these proceedings to the petitioner. Surinder Kumar Prem Kumar