1. This is an appeal against an order passed by Byers, J., committing the appellant to prison for contempt of Court. The appellant has filed an appeal against the decree passed in a partition suit instituted by his brother, the respondent, and this appeal is pending. When he had been served with' notice of the appeal the respondent applied for an order directing the appellant to furnish security for costs in the event of its being dismissed. This application was based on the allegation that the appellant was alienating his share of the family properties and that if the appeal were dismissed the respondent would not be able to recover his costs. In order to avoid an order for security being passed against him, the appellant gave an undertaking that he would not alienate his interests in any of the properties which were the subject-matter of the appeal. In breach of the undertaking he sold his interests in one property for the sum of Rs. 1,500. This was a clear breach of his undertaking and constituted a contempt of Court for which the learned Judge ordered that he be sent to prison for a period of six months. The present appeal is against this order.
2. The learned advocate for the respondent has taken a preliminary objection. He says that no appeal lies because the order passed by Byers, J., was not a judgment within the meaning of Clause 15 of the Letters Patent and moreover was an order passed in the exercise of criminal jurisdiction. Clause 15 of the Letters Patent provides that an appeal shall lie from the judgment of a Judge sitting alone when the judgment has not been 'passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction.' It is said that the order complained of was passed in a quasi-criminal matter and therefore passed in exercise of criminal jurisdiction.
3. It is clear that the order in this case falls within the definition of 'judgment ' given by the Full Bench in Tuljaram Rao v. Alagappa Chettiar (1910) 21 M.L.J. I : I.L.R. Mad. 1. Therefore what the Court has to decide is whether the order is one passed in the exercise of what amounts to criminal jurisdiction. A Full Bench of the Calcutta High Court, without giving reasons, held in Mohendra Lal Mitter v. Anundo Coomar Mitter I.L.R.(1897) Cal. 236 that an appeal lay from an order refusing an application to commit for contempt of Court; but a contrary opinion was expressed by the Bombay High Court in Narendrabai Sarabai v. Chinnubai Manibai I.L.R.(1936) 60 Bom. 894. In the latter case the question was whether the order which had been passed was a 'judgment' and the Bombay High Court has always accepted the definition of 'judgment' given by the Calcutta High Court in The Justices of the Peace for Calcutta v. The Oriental Gas Co (1872) 8 Beng.L.R. 433. The definition given there differs from the definition given by this Court in Tuljaram Rao v. Alagappa Chettiar (1910) 21 M.L.J. I : I.L.R. Mad. 1. Neither the Calcutta High Court's decision nor that of the Bombay High Court renders assistance in the present case, but assistance is to be obtained from the decision of the Privy Council in S. N. Banerjee v. Kuchwar Lime and Stone Co., Ltd (1938) I.L.R. 17 Pat. 770 (P.C.). In that case there were consolidated appeals from an order passed by the Patna High Court directing the appellants to pay costs in certain contempt proceedings. The High Court had given leave to appeal and its action in doing so was questioned when the matter came before the Judicial Committee. It was said that proceedings in contempt were quasi-criminal in their nature and therefore leave to appeal could not be granted under the Code of Civil Procedure. The objection was overruled. In delivering the judgment of the Board, Lord Porter said:
A preliminary objection to their hearing was made by the respondents on the ground that the contempt in both cases or at any rate in the case of Ghose and Bannerjee was of the nature of a criminal matter, that the leave granted was granted under the Civil Procedure Code and inasmuch as it was in the wrong form this Board should hold on the authority of Radha Krishn Das v. Rai Krishn Chand that leave had not properly been given.
The objection is purely technical and so far as the Secretary of State is concerned, their Lordships think it now sufficiently established that a committal for a finding of contempt for breach of an injunction is not criminal in its nature and is properly dealt with under the Civil Procedure Code. See Scott v. Scott (1913) A.C 417 .
It appears to us that this decision makes it quite clear that an order such as the one now under appeal is not an order in a criminal proceeding within the meaning of Clause 15 of the Letters Patent, but in a civil matter. This being a civil matter and the order complained of being a 'judgment ' within the definition laid down by this Court, we hold that the appeal lies.
4. Coming now to the merits, Mr. Sitarama Rao on behalf of the appellant says that the appellant is prepared to pay into Court the sum which he received for the sale which took place in breach of his undertaking and that this sum may remain in Court as security for the respondent's costs. On this understanding he asks that the appeal should be allowed so far as the remainder of the term of imprisonment is concerned. The appellant was committed to prison on the first of this month and therefore has only served 24 days of the period of committal. His breach of the undertaking was a very serious contempt and we do not consider that he should be let out of the prison at this stage. If he pays into this Court within this week the Rs. 1,500, we will reduce the period from six months to two months, which will mean that the appellant will be liberated at the end of March. If he does not fulfil his undertaking to pay the money into Court within the time allowed, the order of Byers, J., will stand.
5. As the respondent is the appellant's brother we make no order as to costs.