BANERJEE, J. ( 1 ) THIS is a Rule calling upon the Opposite Party, Lahoriram Prashar, to show cause why he should not be committed for contempt for this Court as a result of a breach of an undertaking given by him to this Court whereby he undertook to vacate premises No. 70, Raja Basanta Roy Road, Calcutta, with the expiry of the month of July, 1962. ( 2 ) THIS Rule was issued, on September 26, 1962, on the application of the petitioner decree-holder, stating that there has been a breach of the undertaking and praying that steps be taken against the Opposite Party for the contumacious conduct exhibited by him in violating the undertaking. ( 3 ) IT appears from the process-server's report, dated November 22, 1962, that notice of the Rule was served on the Opposite Party by affixation, in his absence. That being treated as defective service, the Registrar of this Court directed fresh service of notice on the opposite party both in the ordinary way and by registered post. It appears from the report of the process-server, dated January 26, 1963, that the opposite party refused to accept the notice this time and the same had to be served by affixation. The notice sent to the opposite party by registered post also came back with the endorsement by the postal peon that the same had been refused by the addressee opposite party, on February 2, 1963. ( 4 ) WHEN, in these circumstances, this Rule was placed before us for hearing, on May 24, 1963, the opposite party personally appeared in Court and Mr. Arun Prokash Chatterjee and Mr. Hemesh Chandra Sen, Advocates, stood up as if representing the opposite party. We found, however, that above named two learned Advocates had not filed any power, executed by the opposite party, authorising them to represent the case of the opposite party. We could not therefore, hear them on that day but proceeded to hear the opposite party himself. In answer to our questions Nos. 10 to 16, he gave the following answers: -"10. Have you any documentary evidence to show that you are talking of? - Yes. 11. Where are these? - They are in my house. I just noticed my name in the cause list. So I directed my lawyer to appear. 11 (a) When did you receive notice of this Rule? 10 to 16, he gave the following answers: -"10. Have you any documentary evidence to show that you are talking of? - Yes. 11. Where are these? - They are in my house. I just noticed my name in the cause list. So I directed my lawyer to appear. 11 (a) When did you receive notice of this Rule? - I did not receive any notice. 12. Is it not a fact that the notice was tendered to you and you refused to accept? No. No notice was served on me. I can even swear an affidavit to that effect. 13. Do you read the cause list of this Court every day? - No, I do not read everyday. But to-day I wanted to move an application under Article 226 matter. For that reason I was looking into the cause list. 14. Only by accident to day? - Yes by accident. I never knew anything. 15. Did not Mr. P. K. Sen Gupta, your Advocate, inform you that this application will be listed for hearing to-day? - He is not in this matter. I myself saw it in the list. 16. Answer my question. Did not your Advocate Mr. P. K. Sen Gupta send you information that this Rule will come up for hearing to-day? - No. ( 5 ) WE are not impressed by his story, as quoted above. Nevertheless, we do not desire to make much of his attempts to evade service of the notice of the Rule for contempt, because after all the opposite party appeared in person to answer the charge of contumacious conduct made against him. Later, in the day, on May 24, 1963, Messrs Arun Prokash Chatterjee and Hemesh Chandra Sen, Advocates, filed a Vakalatnama on behalf of the opposite party, which was accepted. ( 6 ) AFTER putting some questions to the opposite party, we adjourned the hearing of the matter to May 31, 1963, in order to enable the opposite party to take steps for his defence. On May 30, 1963, the opposite party filed an affidavit-in-opposition and therein denied that he had "flouted any order" made by this Court. ( 7 ) AT the hearings that took place thereafter, on May 31, 1963 and June 5, 1963, the case of the opposite party was argued by his learned Advocate Mr. On May 30, 1963, the opposite party filed an affidavit-in-opposition and therein denied that he had "flouted any order" made by this Court. ( 7 ) AT the hearings that took place thereafter, on May 31, 1963 and June 5, 1963, the case of the opposite party was argued by his learned Advocate Mr. Jitendra Kumar Sen Gupta, with very great ability and we put on record our appreciation of the assistance rendered by him to this Court. ( 8 ) THE facts, which are relevant for the purposes of this Rule, are hereinafter stated in brief. ( 9 ) THE petitioner is admittedly the landlord of premises No. 70, Raja Basanta Roy Road, Calcutta. In the year 1953, she filed a suit for eviction of the one Sm. Lilavati Debi and the present opposite party (respectively defendant No. 1 and 2 in that suit) from the aforesaid premises, being T. S. 258 of 1953 of the Second Court of Munsif at Alipore, on the following allegations (Annexure 'a' to the affidavit-in-opposition):"1. One Rameswar Sharma since deceased was the plaintiff's tenant at will from month to month at a monthly rent of Rs. 225/- in respect of premises No. 70 Raja Basanta Roy Road, described in the schedule annexed. 2. The said Rameswar Sharma died sometime ago leaving him surviving the defendant No. 1 as his only heir and legal representative who has in law stepped into his shoes as the plaintiff's tenant in terms hereinbefore mentioned. 3. The plaintiff was however receiving rent of the said premises through the defendant No. 2, but in the name of the said late Rameswar Sharma. 4. The said defendant No. 2 had been asserting that really he was the tenant but under the name of late Rameswar Sharma, the latter having had, according to him no interest in the said tenancy. 5. That plaintiff has, however, under legal advice, served notices of ejectment upon both the defendants and brings this suit against both of them to avoid any complications and future controversy. 6. By the said notice, copy of which is filed herewith, the said tenancy has been terminated on the expiry of the last day of the month of April, 1953. That plaintiff has, however, under legal advice, served notices of ejectment upon both the defendants and brings this suit against both of them to avoid any complications and future controversy. 6. By the said notice, copy of which is filed herewith, the said tenancy has been terminated on the expiry of the last day of the month of April, 1953. " ( 10 ) THE present opposite party (who was defendant No. 2 in the aforementioned suit) filed a Written Statement and therein pleaded as hereinbelow set out (Annexure 'a' to affidavit-in-reply): -"5. The defendant submits that the statement made in para 1 of the plaint is substantially correct. The defendant submits that the said late Rameshwar Sharma during his life time, was holding the tenancy in his own name on behalf of the Unity Productions from the inception of the tenancy. 6. The statement made in para 2 of the plaint is correct to the extent that the said Rameshwar Sharma died sometime in the beginning of 1949 and after the death of the said Rameshwar Sharma, the defendant No. 2 became the tenant under the plaintiff as being the surviving partner of the Unity Productions and the defendant No. 2 was holding the tenancy in the name of late Sri Rameshwar Sharma. 7. The defendant No. 2 states that the statement made in para 3 of the plaint is correct and plaintiff is accepting the rent from the defendant as a monthly tenant of the plaintiff. 8. The statement in para No. 4 is substantially correct but the assertion has been made by the defendant No. 2 that he was and is the tenant of the plaintiff, when the plaintiff tried to repudiate the tenancy of the defendant No. 2 by their letter dated 30th August, 1952 and thereafter the plaintiff has no other alternative but to admit the defendant No. 2 as her tenant and the fact will be proved from the letter dated 10. 4. 52. 9. The defendant No. 2 submits that in view of the statement made above in para 8 of the written statement the plaintiff has instituted the suit against defendant No. 1 Leelavati Debi wrongly and maliciously. The joinder of defendant No. 1 amounts to mis-joinder of parties and the plaint should be rejected on that score. 4. 52. 9. The defendant No. 2 submits that in view of the statement made above in para 8 of the written statement the plaintiff has instituted the suit against defendant No. 1 Leelavati Debi wrongly and maliciously. The joinder of defendant No. 1 amounts to mis-joinder of parties and the plaint should be rejected on that score. " ( 11 ) AFTER the filing of the Written Statement, the petitioner (who was the plaintiff in the abovementioned suit) filed an application for amendment of the plaint and the plaint was amended by expunging the name of defendant No. 1, Sm. Lilavati Debi. The suit thereafter proceeded on the basis that the present opposite party was the sole tenant. The opposite party himself deposed in the said suit and in his evidence stated: "i became the tenant long ago in or about 1939. I am not sure of the date. " ( 12 ) THE learned Munsif decreed the suit, on December 18, 1956 and ordered: "that the suit be decreed on contest with costs. The plaintiff do get khas possession of the suit premises on eviction of the defendant therefrom. The decree for ejectment shall not be executed till the end of February, 1957. " ( 13 ) THE present opposite party preferred an appeal against the decree before the second Additional Court of the Subordinate Judge at Alipore. The learned Subordinate Judge found that the plaintiff did not reasonably and bonafide require the premises for her own use and occupation. By his decree, dated August 21, 1957, he allowed the appeal and dismissed the suit. Against the appellate decree, the present petitioner filed a second appeal to this Court, being S. A. 770 of 1958. That appeal came up for hearing before this Bench on July 28, 1960 and was decreed in terms of settlement. The material portion of the decree passed by this Court is hereinbelow set out - :"upon this appeal coming on for hearing in a Division Court before the Hon'ble Binayak Nath Banerjee, and the Hon'ble Amaresh Roy, two of the Judges of this Court on the 28th day of July, 1960. The material portion of the decree passed by this Court is hereinbelow set out - :"upon this appeal coming on for hearing in a Division Court before the Hon'ble Binayak Nath Banerjee, and the Hon'ble Amaresh Roy, two of the Judges of this Court on the 28th day of July, 1960. And it being represented by the Advocates for the appellant and the respondent that the matter in dispute, out of which this appeal arises, has been settled between them on the following terms: (a) The defendant respondent shall quit and vacate the premises in dispute and render peaceful possession to the plaintiff appellant with the expiry of the month of July, 1962. There shall be a decree for eviction passed but the decree for eviction shall not be executed until the expiry of the month of July, 1962, provided, however, the defendant respondent pays and continues to pay a sum of money equivalent to the monthly rent, month by month, within the 15th day of each succeeding month, and (b) If default is made in paying the money, as hereby directed, the appellant shall be absolved from the restraint put on him from executing the decree for eviction, it is ordered and decreed by and with the consent of the parties that this appeal be and the same is hereby disposed of in accordance with the aforesaid terms of settlement and the said parties do govern themselves by the terms aforesaid, it being noted that the respondent, who is personally present in Court, gives an undertaking to the effect that he would quit, vacate and render peaceful possession of the premises in dispute to the appellant with the expiry of the month of July, 1962: And it is further ordered and decreed that the parties do bear their own costs in this appeal. " ( 14 ) THE decree was signed on August 18, 1990. ( 15 ) THUS ended the first Chapter of the petitioner's attempt to get possession of her premises. ( 16 ) ON August 17, 1960, the opposite party paid a sum of Rs. 225/- in the hands of K. K. Hazari, father of the petitioner, and obtained from him a rent receipt (Ex. 3) the material portion of which reads as follows: "received from Sri Lahori Ram Prasar the sum of Rs. ( 16 ) ON August 17, 1960, the opposite party paid a sum of Rs. 225/- in the hands of K. K. Hazari, father of the petitioner, and obtained from him a rent receipt (Ex. 3) the material portion of which reads as follows: "received from Sri Lahori Ram Prasar the sum of Rs. Two hundred and twenty-five, being the amount de for rent of premises No. 70, Raja Basanta Roy Road, for the month of July, 1960. " ( 17 ) MR. K. K. Hazari representing the petitioner, however, wrote a letter (Ex. 4) to the opposite party on August, 31, 1960 to the effect that the receipt, as rent receipt, had been obtained by misrepresentation and must be treated as receipt for mesne profit. A copy of the letter is annexure 'c' to the Supplementary affidavit by the petitioner. To the aforesaid letter the opposite party sent the following reply, on September 3, 1960 (Annexure C (1) to the Supplementary Affidavit: -"i am surprised to read the contents of registered letter dated 31. 8. 60 received by me yesterday. After the High Court case was over I approached you and you kindly settled new tenancy of the above premises and upon payment of the rent for July, 1960 by me, you granted me proper rent receipt for July, 1960 as your tenant on 17th August, 1960. I am surprised that you should now try to go back. I have never made any misrepresentation to you nor did I manage to obtain the rent receipt concerned on any misrepresentation. The entire allegations are after-thoughts and cannot hold good against the clear rent receipt and the creation of a fresh tenancy. The question of treating the said rent receipt as one for mesne profits cannot and does not arise. " ( 18 ) THERE was a reply, to the letter sent by the petitioner on September 7, 1960, to the following effect (Annexure C (2) to the Supplementary Affidavit): -"in reply to your letter dated 3. 9. 60 I have to inform you that there was nothing to be surprised on reading the contents of my father's letter dated 31. 8. 60 but on the other hand the contents of your letter under reply surprises me extremely and it exposes your evil designs. 9. 60 I have to inform you that there was nothing to be surprised on reading the contents of my father's letter dated 31. 8. 60 but on the other hand the contents of your letter under reply surprises me extremely and it exposes your evil designs. There cannot be any question of a fresh tenancy since the order of the decree for ejectment passed against you by the Hon'ble High Court on the 28th July, 160 and the suggestion is a ludicrous one. Under the order dated 28. 7. 60 passed by the Hon'ble High Court you are to deliver up to me khas possession of the premises No. 70, Raja Basanta Roy Road and you were granted two years' time to vacate provided you pay and continue to pay a sum of money equivalent to monthly rent, month by month within the 15th day of each succeeding month and in default of such payment I shall be at liberty to execute the decree for ejectment. I learn that you approached my father on the 17th August 60 when the due date was over and in my absence you persuaded him to accept the money in terms of the High Court order and obtained a receipt from him as rent which should be money equivalent to the monthly rent of mesne profits in short. It is obviously false that I was a party to it or was present there as insinuated in your letter under reply. My father never entered into a fresh tenancy with you and he also had no authority to do so and the story of a fresh tenancy is the concoction of a fertile brain. I assert that the order of the Hon'ble Court is in force and it is binding on the parties to the Appeal No. 770 of 1958. The money which you have paid to my father is being refunded to you by my father by a postal M. O. which please acknowledge. The money has been sent to you today by M. O. M. O. Receipt No. 52074 which please note. M. O. has been sent to you through Beadon Street P. O. Calcutta. " ( 19 ) ON September 9, 1960, the opposite party wrote to the petitioner asking for a rent receipt for rent for August, 1960, said to have been sent by Money Order. M. O. has been sent to you through Beadon Street P. O. Calcutta. " ( 19 ) ON September 9, 1960, the opposite party wrote to the petitioner asking for a rent receipt for rent for August, 1960, said to have been sent by Money Order. Thereafter, on September 12, 1960 the opposite party replied to the petitioner's letter, dated September 7, 1960 alleging that in view of the fresh tenancy given to him, the decree of this Court had no longer any binding effect. A relevant portion from the said letter is hereinafter set out [annexure C (4) to the Supplementary Affidavit]: -"it is no use repeating the directions in the order of 28th July, 1960 passed by the Hon'ble High Court but by fresh tenancy it has been given a complete go-bye on 17th August, 1960 when I met your father, representing you in the normal course, and settled fresh tenancy upon payment of rent. As your father always represented you in all negotiations with me, I did not know nor did I enquire if you were present; but I emphatically deny that I persuaded him to accept the money in terms of the High Court order or that I paid the money at all in terms of the High Court order or that the rent receipt which he granted me under the fresh tenancy was or could be equivalent to the monthly rent of mesne profit. The receipt is in clear and unambiguous language one for rent and has nothing to do with alleged mesne profit. I reiterate that your father representing you (as he had done throughout) entered into a fresh tenancy and that he had full authority to do so and no amount of denial will avail you of getting rid of that fresh tenancy. I deny that fresh tenancy is either a story or a concoction of a fertile brain. The order of the Hon'ble High Court has been given a go-bye and no longer binds either you or me. " ( 20 ) THE petitioner having had refused to accept the money, tendered by the opposite party as rent for August, 1960, the opposite party deposited the money with the Rent Controller, Calcutta, as rent of the disputed premises for the month of August, 1960. [annexure C (5) to the Supplementary Affidavit. " ( 20 ) THE petitioner having had refused to accept the money, tendered by the opposite party as rent for August, 1960, the opposite party deposited the money with the Rent Controller, Calcutta, as rent of the disputed premises for the month of August, 1960. [annexure C (5) to the Supplementary Affidavit. ] ( 21 ) SINCE the opposite party had failed to pay mesne profits in terms of the decree of this Court, the petitioner put the decree for eviction, passed by this Court in S. A. 770 of 1958, to execution, being Title Ex. Case No. 77 of 1960. The Opposite Party filed an objection there to under Section 47 of the Code of Civil Procedure to the following effect: -" (a) That by a subsequent agreement dated 17. 8. 60 whereby the judgment-debtor was given a fresh tenancy and granted a fresh rent receipt without reference to the terms of the decree which therefore stood substituted and/or waived, and/or superseded by granting a fresh tenancy; (b) That as the decree has been superseded the present execution case is not maintainable and is liable to be dismissed" (Annexure C (6) to the Supplementary Affidavit ). " ( 22 ) THE objection was dismissed by the executing Court. Thereupon, the opposite party preferred an appeal against the said order, being Misc. Appeal No. 71 of 1961. Before the Court of appeal, there was settlement arrived at between the petitioner and the opposite party on the following terms (Annexure B to the petition):"1. That the respondent-decree-holder and appellant-judgment-debtor have entered into an agreement that they will abide by the decree and judgment dated 28th July 1960 passed by the Hon'ble High Court in the Second Appeal No. 770 of 1958. 2. That according to the terms and conditions of the aforesaid judgment-debtor on 17. 8. 60 deposited a sum of money by way of mesne profits to Dr. K. Hazaari, the father of the aforesaid decree-holder and Dr. Hazari through inadvertence issued a rent receipt in lieu of a receipt for the mesne profits which the judgment-debtor is entitled according to the terms and conditions of the aforesaid decree. 3. That now the judgment-debtor agreed with the decree-holder - (a) that he will treat the aforesaid receipt as a receipt for mesne profit only. Hazari through inadvertence issued a rent receipt in lieu of a receipt for the mesne profits which the judgment-debtor is entitled according to the terms and conditions of the aforesaid decree. 3. That now the judgment-debtor agreed with the decree-holder - (a) that he will treat the aforesaid receipt as a receipt for mesne profit only. (b) that he will not enter in any suit or proceedings alleging that he has any tenancy right in respect of 70, Raja Basanta Roy Road, Calcutta under the decree-holder or her heir, executors and legal representatives - (c) that the terms and conditions of the above-mentioned decree passed by Hon'ble High Court shall be binding on both the parties as before and will remain in operation accordingly. (d) that the three letters dated 3. 9. 60, 9. 9. 60 and 12. 9. 60 written by the aforesaid decree-holder and the objection petition filed by the aforesaid judgment-debtor under Section 57 of the Civil Procedure Code before the 2nd Munsif Court, Alipore on 7th day of January, 1951 in Title Execution Case No. 77 of 1960 are hereby withdrawn by the said judgment-debtor and cease to have any valid effect as they were written and filed under misconception by the judgment-debtor. 4. The aforesaid decree-holder in her turn will not proceed further with the execution proceedings for the period of default in payment of mesne profits from the date of passing of the said decree by the Hon'ble High Court upto this day of 2nd February, 1961, provided by said judgment-debtor pay in a lump all the balance of mesne profits so far accrued due to the said decree-holder within thirty days failing which the decree-holder will again put the decree into execution for evicting the judgment-debtor from suit premises. Defaults so far made by the judgment-debtor will not be any ground for giving a go-bye to the decree or to its future execution. The decree-holder will not waive any future default to pay mesne profits in terms of the Hon'ble High Court decree. The decree-holder undertakes to withdraw the present execution case No. 77 of 1960 before the 2nd Munsif Court. 5. If the judgment-debtor pays mesne profits in terms of the decree passed by the Hon'ble Court, the decree-holder will not execute the decree within July, 1962. 6. The decree-holder undertakes to withdraw the present execution case No. 77 of 1960 before the 2nd Munsif Court. 5. If the judgment-debtor pays mesne profits in terms of the decree passed by the Hon'ble Court, the decree-holder will not execute the decree within July, 1962. 6. The decree-holder hereby gives her consent to the judgment-debtor's withdrawal of the money deposited with the Rent Controller in the name of the decree-holder under misconception of facts. " ( 23 ) THE appeal was disposed of in terms of settlement, on or about February 2, 1961. Thus ended the second chapter of the petitioner's attempt to get possession of the disputed premises. ( 24 ) IN spite of the settlement, the opposite party did not pay the arrears of mesne profits within March 2, 1961, as agreed upon in clause 4 of the terms of settlement above quoted. Thereupon, the present petitioner started Title Ex. Case No. 20 of 1961. In the said execution case the petitioner filed another objection under Section 47 of the Code of Civil Procedure, [annexure C (7) to the Supplementary Affidavit-in-opposition]. In the said objection he alleged that between February 10 and 27, 1961, he unsuccessfully tried t get back from the decree-holder the original challans in respect of the sums deposited by him with the Rent Controller. Thereafter, between the 3rd and the 15th March, 1961 he tried to pay to the petitioner, in the hands of her father, Mr. K. K. Hazari, a sum of Rs. 1575/-, being the arrears of mesne profits but failed to do so either because Mr. Hazari could not be found or because he would not receive the money; in these circumstances, the opposite party alleged, he sent the entire sum to the petitioner by telegraphic money order. The said telegraphic money order was refused by the petitioner. The executing Court, by its order, dated May 22, 1961, dismissed the objection with the following observations (Annexure B to the affidavit-in-reply): -"the case of the petitioner consists only of some vague and loose statements which find no basis nor any consistency anywhere and it is not at all proved in this case that the petitioner paid or offered the same amount to the decree-holder as required under the terms of the solenama of the aforesaid Misc. Case. The Money was sent on 15. 3. Case. The Money was sent on 15. 3. 61, which was much beyond the prescribed time * * * * it appears that the petitioner has not complied with the terms of the solenama and the decree-holder can proceed with the execution case and the objections of the petitioner have no basis at all. " ( 25 ) AGAINST the aforesaid order the opposite party preferred a Miscellaneous Appeal, being Misc. Appeal No. 394 of 1961. The Appellate Court dismissed the appeal on June 23, 1961 with the following observations (Annexure B to the affidavit-in-reply):"further I have grave doubts if the judgment-debtor opposite party had the required money with him before 15. 3. 61, or if he had the willing ness to part with the money on that date. His petition reveals that he was meeting Dr. K. K. Hazari the father of the decree-holder, repeatedly in order to obtain the original challan in respect of the deposit of rent he had made, innocently or wickedly, with the Rent Controller. The judgment-debtor therefore, was keen to make payment to the decree-holder after withdrawing the sum he had deposited with the Rent Controller. If the judgment-debtor had the desire to pay in strict compliance with the terms of the petition of compromise or had the means to pay, instead of going to decree-holder's father's house on repeated occasions, ringing them up frequently, and frantically moving about the Hon'ble High Court or in the office of his Solicitor, he could easily have deposited the entire sum in Court or could have sent the money by money order. I should say on 15. 3. 61 the petitioner judgment-debtor realised the depth of his folly, not the evil design of the decree-holder. That is why he rushed to the Post Office and sent the mesne profits not by ordinary post, but by T. M. O. However, it is not necessary to ascertain what prevented the judgment-debtor from paying to the decree-holder the mesne profits from August, 1960 to February, 1961 within 4. 3. 61. The stubborn fact is that the payment was not made within stipulated date. From the evidence on record I am satisfied that the conduct of the decree-holder's brother or father did not influence the petitioner's conduct in any way. The petitioner failed to comply with the terms of petition of compromise. 3. 61. The stubborn fact is that the payment was not made within stipulated date. From the evidence on record I am satisfied that the conduct of the decree-holder's brother or father did not influence the petitioner's conduct in any way. The petitioner failed to comply with the terms of petition of compromise. The petitioner having failed to comply with the terms of the petition of compromise, filed on 2. 2. 61, he cannot be heard raising objections to the execution case. The learned Munsif was perfectly right in dismissing the petitioner's objection under Section 47 C. P. Code. " ( 26 ) AGAINST the appellate order the opposite party preferred a Second Miscellaneous Appeal to this Court, being S. M. A. 133 of 1961 and obtained an interim stay of execution of the decree, in the said appeal, as the opposite party alleges in paragraph 4 (f) of this affidavit-in-opposition. The said Second Miscellaneous Appeal was ultimately not pressed and was dismissed by Bachaat and R. N. Dutt, JJ. by an order, dated December 6, 1961. An alternative application, under Section 115 of the Code of Civil Procedure, presented along with the appeal also stood dismissed. Thus ended the one part of third chapter of the petitioner's attempt to get possession of the disputed premises. But a second part of the third Chapter had already started. ( 27 ) THE opposite party alleges in paragraph 5 of the affidavit-in-opposition that on July 25, 1962, he had sent the following letter to the petitioner, under certificate of posting: -"re. Premises 70, Raja Basanta Roy Road, Calcutta-29. Please send your representative to take delivery of the above premises on July 30, 1962, preferably in the morning. Kindly take notice of it. " ( 28 ) AGAIN on July 30, 1962, the opposite party alleges, he wrote the following letter to the petitioner under certificate of posting: -"sub. : - 70 Raja Basanta Roy Road. I had asked you by my letter dated 25. 7. 62 to arrange taking delivery of possession of the above premises to-day morning as per order of Hon'ble Mr. Justice Banerjee and Hon'ble Mr. Justice Amaresh Roy in S. A. 770 of 1958. You however rang me up to inform that because of the order of stay of delivery of possession passed by the Hon'ble High Court in 2nd Misc. 62 to arrange taking delivery of possession of the above premises to-day morning as per order of Hon'ble Mr. Justice Banerjee and Hon'ble Mr. Justice Amaresh Roy in S. A. 770 of 1958. You however rang me up to inform that because of the order of stay of delivery of possession passed by the Hon'ble High Court in 2nd Misc. Appeal No. 131 of 1961, you dared not take delivery of possession of the premises lest you should commit contempt and accordingly you wished me to continue in possession. I hereby put on record the aforesaid telephonic conversation. I make it clear to you also that I made every arrangement to hand over vacant possession of the premises to you to-day morning. " ( 29 ) THE petitioner denies the receipt of the letters in paragraph 4 of the affidavit-in-reply which is set out below: -"that with regard to the statement made by the Respondent in paragraph 5 of the affidavit-in-reply (Sic.) I state that I did not receive from the Respondent any of the letters alleged to be written and sent by the Respondent to me on 25th July, 1962 or on 30th July, 1962 under certificates of posting. I further state that all along I received letters from the Respondent under Registered Post with acknowledgement due. I further deny that I had any talk with the respondent over the telephone intimating him that I could not take delivery of possession of the premises in terms of the decree passed in Second Misc. Appeal No. 770 of 1958 (Sic.) by Hon'ble Mr. Justice Banerjee and Hon'ble Mr. Justice Amaresh Roy because of the stay obtained by the respondent from this Hon'ble Court in Second Misc. Appeal No. 131 of 1961. " ( 30 ) SINCE the petitioner had experienced difficulties in making the opposite party leave her premises she filed the present application for committal of the petitioner for contempt of Court on August 7, 1962 and obtained the present Rule on September 26, 1962. In the meantime, however, the opposite party was not idle. On August 28, 1962, he filed a suit, being T. S. No. 252 of 1962, in the Third Court of the Munsif at Alipore praying for cancellation of the compromise entered into by him in Mis. Appeal 71 of 1961. (Annexure 'b' to the petition ). That suit is still pending. On August 28, 1962, he filed a suit, being T. S. No. 252 of 1962, in the Third Court of the Munsif at Alipore praying for cancellation of the compromise entered into by him in Mis. Appeal 71 of 1961. (Annexure 'b' to the petition ). That suit is still pending. This is in short the background, in which we have to consider the contentions raised in this Rule. ( 31 ) MR. Susil Kumar Biswas, learned Advocate for the petitioner, invited our attention to the undertaking incorporated in the decree in S. A. 770 of 1958 and argued that the undertaking had been given to this Court but in breach of the undertaking the petitioner did not quit, vacate and render peaceful possession of the premises in dispute to the petitioner. As such, Mr. Biswas contended, the opposite party was guilty of contumacious conduct to this Court and should be penalized therefor. ( 32 ) IN showing cause to the Rule, Mr. Jitendra Kumar Sen Gupta, learned Advocate for the opposite party argued the following points for our consideration. He contended, in the first place, that the consent decree passed in S. A. 770 of 1958 was adjusted when a fresh tenancy was granted in favour of the opposite party with effect from July, 1960, as evidenced by rent receipt Ex. 3, (hereinabove quoted ). Therefore, the petitioner became relieved of the undertaking, if any, given to this Court. He contended, in the next place, that the decree in S. A. 770 of 1958 was varied or adjusted by the compromise entered into in Misc. Appeal 71 of 1961 (Annexure B to the petition) and since the opposite party had faithfully acted in accordance with the terms of that compromise, he must not be deemed to have fallen within the mischief of the decree in S. A. 770 of 1958. He contended further that the opposite party had complied with the undertaking, if any, given to this Court by offering possession of the disputed premises to the petitioner by his letters dated July 25 and 30, 1962, sent to the petitioner under certificate of posting and he should not be proceeded against for breach of the undertaking to this Court. He contended further that the opposite party had complied with the undertaking, if any, given to this Court by offering possession of the disputed premises to the petitioner by his letters dated July 25 and 30, 1962, sent to the petitioner under certificate of posting and he should not be proceeded against for breach of the undertaking to this Court. Alternatively, he contended that the undertaking, if any, was not expressly given to this Court and should be construed as given to the petitioner decree-holder and for breach of such an undertaking the opposite party should not be proceeded against for contempt of Court. Further in the alternative he argued that for breach of the undertaking, the terms of compromise contained a remedy, namely, execution of the decree, and the decree-holder must seek that remedy for enforcement of the undertaking. He lastly contended that according to the petitioner herself Lilavati was her tenant in the disputed premises and not the opposite party and inasmuch as the petitioner did not choose to obtain any decree for eviction against Lilavati, the petitioner must be deemed to have always known that it was impossible for the opposite party to deliver possession of the disputed premises to herself and she should not try to make the opposite party perform an impossibility by the present process. ( 33 ) WE take up for consideration the arguments made by Mr. Sen Gupta in the order they were advanced. ( 34 ) THE story that the disputed premises was settled with the opposite party in fresh tenancy does not convince us. The opposite party himself went back upon the story and stated in the compromise petition in Misc. Appeal No. 71 of 1961 that, (a) the receipt (Ex. 3), on which he based this theory of fresh settlement was merely a receipt for mesne profits. (b) that the letters dated September 3, 9, and 12, 1960 written to him to the petitioner were all written under misconception of a fresh tenancy. (c) that the objection under Section 47 filed by him in the Title Execution Case 77 of 1960 was also filed under similar misconception. (d) that he will not in future file any suit or proceeding alleging tenancy right in the disputed premises. (c) that the objection under Section 47 filed by him in the Title Execution Case 77 of 1960 was also filed under similar misconception. (d) that he will not in future file any suit or proceeding alleging tenancy right in the disputed premises. ( 35 ) IN spite of all that the opposite party still insists upon the theory of a fresh settlement of the disputed premises with him under a fresh tenancy. We examined him on this point at length. In answer to our Questions 54 to 102 he reiterated the theory but in somewhat unsatisfactory manner. He could not establish that Mr. Hazari, father of the petitioner, had any authority from the petitioner to grant a fresh tenancy of the disputed premises in favour of opposite party. Further, he could not establish that Mr. Hazari had consulted the petitioner in the matter of the alleged fresh settlement in tenancy right with the opposite party. He could not also explain away why he had agreed never to set up the plea of new tenancy in respect of the disputed premises, in the compromise petition filed in Misc. Appeal No. 71 of 1961. ( 36 ) IN view of what we have stated above, we cannot make much of the argument that the consent decree passed in S. A. 770 of 1958 had been adjusted by a fresh tenancy created in favour of the opposite party, which relieved him of the undertaking given to this Court. ( 37 ) THE argument that the decree in S. A. 770 of 1958 was varied and adjusted by the compromise between the parties in Misc. Appeal No. 71 of 1961 is also unconvincing. So also is the story that the opposite party had acted faithfully, in accordance with the terms of that compromise and for that reason must not be deemed to have fallen within the mischief of the breach of the undertaking contained in the decree in S. A. 770 of 1958. The compromise in Misc. Appeal No. 71 of 1961 did not vary or adjust the consent decree in S. A. 770 of 1958. Clause 1 of the terms of settlement in Misc. Appeal No. 71 of 1961 (hereinbefore quoted) expressly stated that the parties shall abide by the terms of the decree in S. A. 770 of 1958. The compromise in Misc. Appeal No. 71 of 1961 did not vary or adjust the consent decree in S. A. 770 of 1958. Clause 1 of the terms of settlement in Misc. Appeal No. 71 of 1961 (hereinbefore quoted) expressly stated that the parties shall abide by the terms of the decree in S. A. 770 of 1958. That clause is sufficient to silence an argument to the effect that the decree in S. A. 770 of 1958 was in any way varied or adjusted in so far as terms regarding delivery of possession were concerned. All that was agreed upon, by the terms of settlement in Misc. Appeal No. 71 of 1961, was that on payment of all arrears of mesne profits by March 3, 1961 the execution case shall not be further proceeded with and the decree for eviction shall not be enforced till July, 1962, but in default thereof the execution proceedings shall be started again. It appears from the orders passed in Misc. Case No. 60 of 1961 and Misc. Appeal No. 394 of 1961 (ultimately affirmed in S. M. A. 153 of 1961) that the opposite party did not tender the arrears of mesne profits till March 15, 1961. Therefore, the story that the opposite party had faithfully abided by the terms of settlement in Misc. Appeal No. 71 of 1961 and thus kept himself outside the mischief of the undertaking contained in the decree in S. A. 770 of 1958 is unworthy of acceptance. ( 38 ) WE now turn to the argument advance on behalf of the opposite party that he had complied with the undertaking, if any, given to this Court by offering possession of the disputed premises to the petitioner by the two letters dated July 25 and 30, 1962. Mr. Sen Gupta contended that the two certificates of posting (Exts. Nos. 5 and 6) were proof of posting of the two letters in the post office and it must be presumed that the said two letters (material portions wherefrom have already been set out) duly reached the petitioner. In support of this argument he relied on the decision in (1) Harihar Banerjee v. Ram Sashi Roy, (LR 45 IA 222) in which Lord Atkinson in agreement with the decision in Gresham House Estate Co. v. Rossa Grande Gold Mining Co. In support of this argument he relied on the decision in (1) Harihar Banerjee v. Ram Sashi Roy, (LR 45 IA 222) in which Lord Atkinson in agreement with the decision in Gresham House Estate Co. v. Rossa Grande Gold Mining Co. , (1870 WN 119) observed: -"if a letter properly directed, containing a notice to quit, is proved to have been put into the post office it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. The presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register. " ( 39 ) A certificate of posting is certainly of a document of great presumptive evidence. In the case of (2) Hemangini Dassee v. Sarnalatika Dassee, (AIR 1940 Cal 227), Sen, J. observed: -"there is a Certificate of Posting. Learned Counsel on behalf of the petitioner mentioned a case where it was proved that a certificate of posting had been forged. That may be so, but it would be entirely wrong for me to work on the presumption that the certificate of posting was a forgery. On the other hand I should presume that the letter was posted and that it reached its destination unless something is shown to the contrary. " ( 40 ) THEN again, there is the decision in (3) Dhanapati devi v. The Corporation of Calcutta, ( AIR 1952 Cal 467 ) in which Chakrvartti and Das Gupta, JJ. observed as follows: -"in addition to this entry in the Minutes, the Corporation also exhibited a Register of letters sent by it to parties in cases heard and dealt with by the Building Committee. There appears on that Register under the date June 25, 1949 an item numbered 37 and against that item there is an entry to the effect that a letter was sent to the petitioner at 10/2, Syed Sally Lane under a certificate of posting. The necessary postage stamps covering all the letters mentioned in the page, are affixed in the Register itself. The register was spoken to by P. W. 4, one Dinesh Chandra Majumdar. In view of the materials present on the record, it appears to me that under the provisions of ss. The necessary postage stamps covering all the letters mentioned in the page, are affixed in the Register itself. The register was spoken to by P. W. 4, one Dinesh Chandra Majumdar. In view of the materials present on the record, it appears to me that under the provisions of ss. 16 and 114 illustration (f) of the Indian Evidence Act, as interpreted in decided cases too numerous to mention there must be a presumption that the letter was duly received by the petitioner. In order to rebut that presumption, the petitioner examined only one witness, her husband. He certainly said that no notice of the meeting had been received, but the evidence he gave cannot be sufficient to rebut the presumption, inasmuch as he did not say that he had ascertained from his wife that she had not received any notice. He spoke simply on this own account, and any statement by him that no notice had been received would not suffice to rebut the presumption arising from the materials. I have mentioned that a letter from the Corporation had been received his wife. It is well known now that in two successive cases, the case of 'jitendra NATH v. MONMOHAN', 57 Ind App 214 (PC), and another, the case of 'mohammad AKBAR KHAN v. MUSHRAF SHAH', 61 Ind App 371 (PC) the Judicial Committee has held that even in the absence of any specific material raising any presumption it must ordinarily be presumed that the statutory requirements had been complied with and the statutory notices given. In the present case it is not necessary to go so far and the more limited principles based on the sections of the Evidence Act, are quite sufficient to establish that it must be held that the notice was received by the petitioner. " ( 41 ) LASTLY, there is the decision of the Supreme Court in (4) Mobarik Ali Ahmed v. The State of Bombay, ( AIR 1957 SC 857 ) in which Jagannadhadas, J. observed as follows: -"the main contention in respect of these letters is that there is no proof that they were received by the appellant at Karachi. It is contended that evidence given by either Jasawalla or the complainant that originals were written and posted is not relevant to show that the same have been received. It is contended that evidence given by either Jasawalla or the complainant that originals were written and posted is not relevant to show that the same have been received. It is urged that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by the addressee unless there is also proof that the original has not been returned from the Dead Letters Office. Illustration (b) to Section 16 of the Indian Evidence Act, 1872, is relied on for the purpose and it is urged that a combination of the two facts is required to raise such a presumption. We are quite clear that the illustration only means that each one of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. Indeed that section with the illustrations thereto has nothing to do with presumptions but only with relevance. Some cases relating to this have been cited before us. We have considered the same but it is unnecessary to deal with them. " ( 42 ) WE have, therefore, to proceed on the basis that the certificates of posting relied upon the opposite party raise the presumption that the covers alleged to contain the two letters addressed to the petitioner (hereinbefore quoted) were posted by the opposite party. The normal presumption under Section 114 illustration (f) of the Evidence Act will also be that the covers were delivered to the petitioner. A presumption is not, however, proof and may be rebutted. In the instant case the petitioner denies the receipt of two letters in her affidavit-in-reply. The question for our consideration is whether the denial is sufficient to rebut the presumption that the letters were delivered to the petitioner. The opposite party did not act like a man of ordinary prudence when he chose to send the above-mentioned two letters, of the importance that they appear to be, by ordinary post under Certificate of Posting. He took the peril of such letters being mislaid or misdelivered, a risk not unknown in postal communications by ordinary post. Further there is nothing to show, apart from what the opposite party himself says, that the covers addressed to the petitioner actually contained any letter or the letters as alleged. He took the peril of such letters being mislaid or misdelivered, a risk not unknown in postal communications by ordinary post. Further there is nothing to show, apart from what the opposite party himself says, that the covers addressed to the petitioner actually contained any letter or the letters as alleged. The case of (1) Harihar Banerjee (supra) proceeded on the basis that the covers contained a notice to quit. In the instant case we are not sure that the covers contained the letters as alleged. The opposite party no doubt said in his affidavit-in-opposition and in answer to our questions that he actually sent the two letters, dated July 25, and 30, 1962, under the covers sent under certificate of posting. In our estimation the opposite party is not a very reliable person. He gave fencing and unconvincing replies to our questions and even contradicted his own statements in writing in his evidence. Some illustrations of his unconvincing or contradictory replies are hereinbelow got out:"21. You say that the new tenancy began to run from the month of August? - If the decree was passed in July, then of course it would be from August. But I am not sure. I have to look into the records. The receipts may be from the month of July. 22. July, 1960, you mean? - I believe so. 23. What was the occasion of granting a new tenancy to you after the decree? - When I went to the landlord to tender the rent he accepted the rent and he gave me receipt and he said 'it is all right and I would not evict you'. 24. Out of kindness to you? - He can say that I have been a tenant for a very long time, for 18 or 19 years. 25. The landlord filed a suit for eviction and got a decree and then accepted you as a tenant. That is the question you will have to answer.- That of course the landlord knew very well. He gave me the receipt. As a tenant he gave me receipt. 26. He also gave you to understand that the compromise decree would not be executed against you.- He also said that he will build one more storey in the existing building and he will not execute the decree, because he has got a sanction for another storey. 27. He gave me the receipt. As a tenant he gave me receipt. 26. He also gave you to understand that the compromise decree would not be executed against you.- He also said that he will build one more storey in the existing building and he will not execute the decree, because he has got a sanction for another storey. 27. Anything in writing to show that he agreed to keep you as a tenant? - No, nothing. 28. When was that? - At the time he gave the receipt to me when I had been to him. 29. You do not remember the date? - 17th of August, possibly of 1960. " ( 43 ) HE did not hesitate to say all these even though he had himself stated in writing, in the compromise petition in Misc. Appeal No. 71 of 1961, that his theory of new tenancy was a misconception and that he would not in future repeat the story. Then again, in answer to our question Nos. 71 to 83, the opposite party gave the following answers: -"71. It is more than that. You made a definite case to the effect that there was a new settlement with you upon payment of rent for July, 1960. Is not that correct.- Yes, when I got the receipt there was a new settlement. 72. And you further stated in the letter that you approached the petitioner directly and she gave the receipt.- The receipt was given to me by Mr. Hazari after he had consulted her. 73. Then it is not true that you approached the lady directly and had the talk face to face.- So far as all the talks, that have taken place were with Dr. Hazari. Of course she had been present there. 74. Do you remember having written a letter to the petitioner on September 12, 1960? - Yes. During this time I wrote letters. 75. Will you kindly look at the copy of the letter and find out whether this was written by you (shown)? - Yes, this is my letter. 76. Will you read this portion that I am marking for your perusal? - Yes. 77. In that letter you wrote 'on the 17th August 1960 when I met your father, representing you in the normal course, and settled fresh tenancy upon payment of rent. - Yes, this is my letter. 76. Will you read this portion that I am marking for your perusal? - Yes. 77. In that letter you wrote 'on the 17th August 1960 when I met your father, representing you in the normal course, and settled fresh tenancy upon payment of rent. As you father always represented you in all negotiations with me, I did not know nor did I entire if you were present. But I emphatically deny that I persuaded him to accept the money in terms of the High Court order or that I paid the money at all in terms of the High Court order or that the rent receipt which he granted me in the fresh tenancy was or could be equivalent to monthly rent of mesne profits'. Now can you tell me if you did not know, as you write, that the lady was present there and did not even enquire whether the lady was present, how do you state now that the lady was present when you were negotiating with her father. She lives in the same house. There is a partition in the room. She is always there. She is a Pardanashin lady. She was there. 78. You said a few minutes ago that at the place where you were negotiating with the father of the petitioner in respect of the new tenancy, the lady was physically present at that spot. How can you reconcile that with your letter.- The room is one and the same. There is only a Parda in between. She is on the other side of the Parda. The Dr. was talking to him on this side of the Parda. 79. How do you know that she was on the other side of the Parda? - The Dr. rose up, went inside the curtain, asked her and then came back. 80. Why did you state in your letter that you were not sure if she was present at the place? - Because she denied in her letter that she was not present there. Therefore, I had to say that Dr. Hazari went in, had consultation and came back. 81. You did not say that in you letter, you have read that portion of your letter and there you say 'you did not know and you did not enquire' whether the lady was present. Therefore, I had to say that Dr. Hazari went in, had consultation and came back. 81. You did not say that in you letter, you have read that portion of your letter and there you say 'you did not know and you did not enquire' whether the lady was present. How can you reconcile that statement with what you are saying now? - They live in the same house. They live there all the times, take their food and when ever I used to have a talk with Dr. Hazari, I used to ask him if you consulted her. He said, yes. 82. That is not what you wrote in the letter. How do you reconcile what you wrote in the letter with what you say now? - In her letter she had stated that she was not present and in reply to that letter I had stated I did not know whether you were present or not. 83. If you had written otherwise a that time, would you say now that she was physically present at the time of negotiation? - I say she was present because she lives there in the same house. " ( 44 ) THE unreliability of this part of the evidence is apparent on the face of the answers given. Further in answer to our question Nos. 110 to 118, he gave the following answers: -110. "you have stated in your evidence that you sent a Telegraphic Money Order on the 10th February, 1961; is that right? - Yes. 111. Would it be wrong to suggest that you sent the Telegraphic Money Order on 15th March, 1961? - That would be wrong to say that it would be sent on 15th March. If the money was due on the 2nd, I sent T. M. O. certainly before the 15th of that month. 112. So you will maintain that you did not send the T. M. O. on the 15th March but on the 10th February? - It is six or seven days from the date on which it was due of the same month. 113. Now did the decree-holder petitioner start a second execution case against you? - Yes. 114. What did you do in that execution case? - Then again I filed an objection. 115. Is this the copy of that petition (shown)? - Yes. 116. 113. Now did the decree-holder petitioner start a second execution case against you? - Yes. 114. What did you do in that execution case? - Then again I filed an objection. 115. Is this the copy of that petition (shown)? - Yes. 116. Will you read the portion marked in paragraph 11 of your objection? - Yes. That is correct. 117. In the portion marked with red line, which you have read for yourself, you made a definite statement that you sent a Telegraphic Money Order on 15th March, 1961.- That is correct. The money was due to them for March only. According to the terms of the settlement one month's time was given. 118. Then how do you say that you sent the money in February, 1961? - 2nd February was given one month's time. Of course, I say that off-hand. " ( 45 ) THESE are fencing answers and do not establish the reliability of the opposite party. ( 46 ) FACED with the choice as to whether to accept the testimony and the affidavit by the opposite party or the affidavit in reply by the petitioner, we prefer to accept the latter and hold that the letters may not have been received by the petitioner. the cause assigned in the letter dated July 30, 1962, as to why the petitioner refused to take delivery of possession does not convince us. The petitioner was taking all possible steps to regain possession of the premises. It is unlikely that she would let got the opportunity to get possession offered by the opposite party. The injunction referred to in the letter might have staved the execution case. There was nothing to prevent her from obtaining amicable possession from the opposite party. It is also unlikely that the petitioner would not send a suitable reply to the letters, if she had received the same. For the aforesaid reasons, we do not find any reason to disbelieve the version of the petitioner that she did not receive the two letters. ( 47 ) BE that as it may, the point as to whether the opposite party had honoured the undertaking given to this Court by tendering delivery of possession need not be decided merely on consideration of the posting and delivering of the two letters above referred to and we do not intend so to do. ( 47 ) BE that as it may, the point as to whether the opposite party had honoured the undertaking given to this Court by tendering delivery of possession need not be decided merely on consideration of the posting and delivering of the two letters above referred to and we do not intend so to do. Assuming for the sake of argument that the opposite party did write the aforesaid two letters to the petitioner and that the said letters were actually delivered to the petitioner, we have further to see whether the opposite party did act up to the letters and did leave the premises after having tendered possession thereof to the petitioner. According to the evidence given by the opposite party himself he did not leave the premises and shift to elsewhere until October, 1962 (Vide his answers to Q. 127 to Q, 139 ). If he continued to possess the premises till October, 1962, he cannot be said to have honoured the undertaking to given up possession with the expiry of July, 1962. The fact that the opposite party at all left the disputed premises is also disputed. But irrespective of the dispute, it is clear that he did not leave the disputed premises at least upto October, 1962. If the opposite party felt himself bound by the undertaking, it was his plainest duty to leave the premises after having informed the petitioner that he was going to leave and irrespective of whether the petitioner would come and take delivery of possession from him. In the facts and circumstances of this case, we feel constrained to think that the opposite party might have made a show of delivery of possession without intending to act up to what he had written in the letters aforementioned. We, therefore, repel the contention that the opposite party did honour the undertaking by writing the two letters dated July 25 and 30, 1962. ( 48 ) WE now take up for consideration the two branches of the alternative argument advanced by Mr. Sen Gupta. In support of the proposition that the undertaking in the decree in S. A. 770 of 1958 had not been expressly given to this Court and therefore, must be treated as an undertaking given by the judgment-debtor to the decree-holder. Mr. Sen Gupta relied on a decision of this Court, which we need consider at first. Sen Gupta. In support of the proposition that the undertaking in the decree in S. A. 770 of 1958 had not been expressly given to this Court and therefore, must be treated as an undertaking given by the judgment-debtor to the decree-holder. Mr. Sen Gupta relied on a decision of this Court, which we need consider at first. The case relied upon by Mr. Sen Gupta is a decision by Harries, C. J. and Mukherjea, J. in (5) Nishakanto Roy Choudhuri v. Saroj Basini Guho, (AIR 1948 Cal 294 ). The facts involved in that case were as hereinafter stated. The defendant-appellant, a tenant under the decree-holder respondent, suffered a compromise decree for eviction in terms of compromise agreement, in which one of the terms was: -"the defendant undertakes to remove the said Kali image as also all permanent brickbuilt and other structures in and around the place where the image of Kali is situate before he gives up possession of the said shop room or at any time prior thereto on demand by the plaintiff or the owner for the time being of the said premises. " ( 49 ) IN breach of the undertaking, the defendant appellant did not remove the image. Thereupon, the respondent decree-holder applied before Gentle, J. for committal of the judgment-debtor for contempt of Court, on the ground that he had violated an undertaking given to the Court. Gentle, J. accepted the contention of the decree-holder and committed the judgment-debtor to a term of imprisonment. Against that order the judgment-debtor appealed. In allowing the appeal, Harries, C. J. observed: -"the learned Judge was of opinion that the ordinary meaning must be given to the word 'undertakes' and he seems to have thought that the ordinary meaning of the word 'undertakes' was 'solemnly promises' to a Court. We have examined the various meanings of the word 'undertake' in the Oxford Dictionary and nowhere is it said that the word 'undertakes' implies a promise to a Court. One of the meanings of the verb 'to undertake' is 'to give a formal promise or pledge'. That is, to give a formal promise or pledge to any one, not necessarily to a Court. It, therefore, follows that if the ordinary meaning is given to the word 'undertakes' paragraph 6 should read: 'the defendant hereby formally promises or pledges to remove the said Kali image. . . That is, to give a formal promise or pledge to any one, not necessarily to a Court. It, therefore, follows that if the ordinary meaning is given to the word 'undertakes' paragraph 6 should read: 'the defendant hereby formally promises or pledges to remove the said Kali image. . . ' What the respondent urges us to do is to read into paragraph 6 the words 'undertakes to Court. ' The words are not there. It must be remembered that this compromise agreement was negotiated between the parties outside Court. They were agreeing to certain terms and amongst other things, the defendant promised or undertook to remove this image when called upon to do so. The agreement he made was not with the Court, but with the plaintiff respondent, and prima facie he undertook to remove this image with the plaintiff respondent. When this paragraph is to be construed we must bear in mind that it is found in a document executed by two parties, the plaintiff and the defendant and the promises made by the plaintiff are promises made to the defendant and the vice versa. How, therefore, can the undertaking to remove the image be treated as an undertaking not to the plaintiff but to the Court? It must be remembered that the Court at this stage was no party to the agreement. Mr. Ghose who has argued this case on behalf of the respondent with great force has urged that we must bear in mind that this agreement was arrived at with a view to presenting it to Court and asking the Court to pass a decree in its terms. He has contended that when that is borne in mind it is clear that the words 'the defendant hereby undertakes to remove' means that the defendant agrees to give the Court an undertaking that he would remove the image. But I cannot see how those words can possibly be read into paragraph 6 of the compromise agreement. Even if the parties intended, as they did, to submit these terms to Court and to ask the Court to pass a decree in terms of the compromise, all they intended to do was to obtain a decree which would enable the terms to be enforced by the Court. All that could be enforced were the terms actually agreed upon. Even if the parties intended, as they did, to submit these terms to Court and to ask the Court to pass a decree in terms of the compromise, all they intended to do was to obtain a decree which would enable the terms to be enforced by the Court. All that could be enforced were the terms actually agreed upon. The fact that this document was to be submitted to Court cannot, in my view, affect the construction to be given to paragraph 6. If on a proper construction of a paragraph 6 there is nothing but a promise, possibly solemn, by the defendant to the plaintiff, then it does not become anything more than such a promise when the document is put in Court and the Court passes a decree in terms of it. It must be remembered that a compromise decree is nothing more than an agreement of the parties with the sanction of the Court superadded. It has really no greater sanctity than the agreement itself. It certainly cannot mean anything more than the agreement itself. Mr. Ghose frankly admitted that if the words in para 6 were 'the defendant hereby undertakes with the plaintiff to remove the said Kali image', then making that agreement a rule of Court could not possibly convert that undertaking into an undertaking to the Court. He did, however, contend that as the words 'with the plaintiff' had been omitted, the moment the decree was passed in consonance with the agreement, the words 'the defendant hereby undertakes to remove the said Kali image' became 'the defendant undertakes to the Court to remove the said Kali image'. I am quite unable to follow that argument or the reasons upon which it is based. It appears to me the Court must first construe para 6 of the compromise and ascertain its meaning. Once that meaning is ascertained, the meaning cannot be changed merely because a decree was passed in terms of the compromise. The terms of the decree must mean precisely the same as the terms of the compromise. Gentle, J. followed a single Judge decision of this Court in 42 CWN 203. In that case the word 'undertake' was used in a paragraph in a compromise, although there was nothing to suggest that the undertaking was to a Court. The terms of the decree must mean precisely the same as the terms of the compromise. Gentle, J. followed a single Judge decision of this Court in 42 CWN 203. In that case the word 'undertake' was used in a paragraph in a compromise, although there was nothing to suggest that the undertaking was to a Court. The compromise was made a rule of Court, and Panckridge, J. came to the conclusion that the undertaking mentioned in the compromise was an undertaking to the Court. the learned Judge gives no reasons for so holding beyond the fact that the word 'undertake' was used. But as I have stated the mere user of the word 'undertake' does not mean a promise to a Court. It merely means a solemn promise to some one and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously undertakes to B, and not to a Court. In Building and Land Trust (India) Ltd. v. Tilok Chand Surana, (unreported) decided on 22. 5. 1946, Clough, J. arrived art the same conclusion as that arrived at by Panckridge, J. in the case I have cited and Gentle, J. in the present case. The learned Judge appears to have thought that once the facts are borne in mind that the parties intended the agreement to be submitted to Court and that a decree was passed in terms of it, the word 'undertake when used in a compromise must mean an agreement by one of the parties to give an undertaking to the Court. I cannot accept that reasoning. It appears to me that each case must be decided on its particular facts and upon the precise words in the compromise under discussion and unless the words are precisely similar. " ( 50 ) WE have quoted a long extract from the judgment of Harries, C. J. in order to show that this Court refused to lay down a doctrine of law and held that each case must be decided in its particular facts and the terms of compromise must be interpreted in order to find out to whom the undertaking was given. Therefore, the fact that the undertaking was not expressly given to this Court will not be a matter of consequence, if on interpretation of the terms it appears that the undertaking must have been given to this Court. To those terms we shall refer hereinafter and try to construe their true meaning and import. . ( 51 ) MR. Susil Kumar Biswas, learned Advocate for the petitioner invited our attention to a decision by the Bombay High Court in (6) Bajranglal Gangadhar Khemka v. Kapur Chand Ltd. , ( AIR 1950 Bom 336 ) in which Chagla, C. J. (Gajendragadkar, J. agreeing with him) observed as follows: -"there is 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 to compromise, still, when the Court passes a decree, it puts its imprimature 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 an undertaking given by a party to the Court. Therefore, 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. " ( 52 ) THEIR Lordships further criticized the judgment in (5) Nishakanto Ray Chaudhury's case (Supra) in the following language: -"in support of his contention, Mr. Desai has relied on a judgment of the Calcutta High Court in Nisha Kanto v. Saroj Bashini, AIR 1948 Cal 194; (49 Cr LJ 567 ). In that case a Division Bench consisting of Sir Trevor Harries, C. J. and Mukhejea, J. had to consider a similar question. There also reliance was placed upon the practice on the original side. And the learned Chief Justice expressed the opinion that the sooner the practice was stopped the better. In that case a Division Bench consisting of Sir Trevor Harries, C. J. and Mukhejea, J. had to consider a similar question. There also reliance was placed upon the practice on the original side. And the learned Chief Justice expressed the opinion that the sooner the practice was stopped the better. According to the learned Chief Justice, if one of the terms of the compromise was that one of the parties should give an undertaking to the Court, then the compromise should make it clear that such was the case, and if it did not make it clear and the compromise merely stated that one of the parties 'undertakes', then the ordinary construction must be given, and that is, a promise or a solemn promise given to the other party and not to the Court. Now, with very great respect to the learned Chief Justice, he seems to have taken the view that the word 'undertake' must be given its ordinary dictionary meaning. He has not considered at all as to whether, by long practice understood both by counsel and by Judges, the expression 'undertaking' had come to acquire a technical meaning. I am sure, if he had considered that aspect of the case, he would not have come to the conclusion that the only way to construe the expression 'undertake' was to give it its plain natural meaning. What is more, there are three judgments of the Calcutta High Court, all delivered by single Judges undoubtedly but all of them sitting on the original side and having experience of the original side practice, which have taken the view that an 'undertaking' means an 'undertaking to the Court'. One was by Gentle, J. whose decision was reversed by a Bench in Nisha Kanta's case, (AIR 1948 Cal 294 : 49 Cr LJ 567) to which I have just referred; another by Panckridge, J. and the third judgment is of Das, J. which judgment was not cited before that Bench : this is reported in Prokash Chandra v. Manindara Nath, ILR (1946) 2 Cal 499 ). " ( 53 ) WE respectfully agree with their Lordships that the word undertaking should be given its plain natural meaning. " ( 53 ) WE respectfully agree with their Lordships that the word undertaking should be given its plain natural meaning. But even with such a meaning given to it, it may not be possible to construe all undertakings as given to Court and to whom an undertaking was given may have to be interpreted on true construction of the term of the undertaking. Any doctrinaire approach in such a matter may have its pitfalls. ( 54 ) IN support of his contention that even if the undertaking had been given to this Court, the terms of the compromise decree provided a remedy for breach of the undertaking, namely, execution of the decree and therefore, the decree-holder must resort to that remedy and not to a process of enforcement of the decree by proceeding in contempt. Mr. Sen Gupta relied on a decision of this Court in (7) Sukumar Mitra v. Tara Sankar Ghosh, (56 CWN 580) in which Das, J. (Lahiri, J. agreeing with him) observed that a breach of an undertaking given to the Court by a person in pending proceedings on the faith of which the Court sanctions a particular course of action, may be misconduct amounting to contempt; but in a case where a party to a compromise in a proceeding pending in the High Court gave an undertaking to that Court but it was doubtful that the same was unqualified - the consequences for the breach having been provided in the order itself - and there was reasonable doubt in the mind of the party in that respect, the High Court should not exercise its extraordinary and summary powers to commit the party for contempt for breach of the undertaking. Their Lordships relied on an unreported decision of this Court in (8) Misc. Case No. 276 of 1956 (Per Chakravartti and Sinja, JJ.) and observed as follows: - (a) "it was held by the Bench (Chakravartti and Sinha, JJ.) hearing the rule that the proceedings in contempt could not be sustained, Mr. Justice Chakravartti gave the following reason in support of the order: 'it is perfectly clear that while laying down the conditions, the learned Judges also had present to their minds the possibility of breaches of the conditions and for such possible breach, they themselves prescribed the penalty. Justice Chakravartti gave the following reason in support of the order: 'it is perfectly clear that while laying down the conditions, the learned Judges also had present to their minds the possibility of breaches of the conditions and for such possible breach, they themselves prescribed the penalty. It will be remembered that, according to the default clause, if any default was committed in respect of any of the conditions Nos. 1, 2 and 4, the Rule would stand discharged and the consequence of a discharge of the Rule would be that the property would revert to the possession of the receiver. It is thus clear that the learned Judges in making the order of the 15th May, 1951 did not impose any absolute obligation on the opposite parties in respect of preserving the cinema house in a proper condition but gave them a choice. The choice was that they would have either to preserve the property in proper condition and keep it in their possession or if they failed in doing so, they must submit to the receiver resuming possession of the cinema house'. The learned Judges therefore held that there was no room left for any case of contempt to arise in that case. In the present case the undertaking said to have been given to the Court to vacate the premises on or before 2nd January, 1952, has to be read with clause (5) of the joint petition of compromise which provided that in case of failure on the part of the appellant (Opposite party), to vacate the premises, certain consequences would follow, namely, that the petitioner would be entitled to execute the decree of the Court below and/or will also be entitled to take such proceedings as he may be asked and in such proceedings the opposite party will be disentitled to raise any objection or to pray for extension of time. On the principles laid down in the Bench decision it must be held that there was no unqualified undertaking on the part of the opposite party and as such the opposite party cannot be held to have been guilty of contempt of this Court. Mr. On the principles laid down in the Bench decision it must be held that there was no unqualified undertaking on the part of the opposite party and as such the opposite party cannot be held to have been guilty of contempt of this Court. Mr. Chakravarty, learned Advocate, appearing for the petitioner, has referred us to the decision in the case of Ali Mohammad Adamali v. Emperor (72 IA 226 : 50 CWN 107) and has submitted that the mere fact that another remedy is provided for in case the opposite party failed to vacate the premises is not conclusive of the matter. It is true that in Ali Mohammad's case (supra), the Judicial Committee observed that the contention that the Court cannot commit for contempt if any other remedy exists is novel and no authority to that effect was quoted, or was unknown to their Lordships'. Their Lordships proceeded to observe: 'no doubt the fact that there is another remedy available is a matter for the Court to consider in exercising its discretion whether to commit or not to commit, but on the other hand the desirability of speed and necessity of ensuring that the orders of the Court should be obeyed are also matters of importance. ' these observations do not really assist the petitioner in the submission that the Bench decision of Chakravartti and Sinha, JJ. , should not be followed. The Bench decision of Chakravartti and Sinha, JJ. , proceeded on the footing that in cases like the present where the consequences of default are provided for in the order itself, the undertaking should not be construed as being an unqualified one. In my opinion the first contention of the petitioner must be given effect to. The undertaking said to have been given to the Court in the circumstances of this case, should not be regarded as an unqualified undertaking and a failure to keep to the terms thereof cannot therefore be regarded as justifying the exercise of the discretionary powers of this Court to order committal for contempt. " * * * * * * * * * * * * * (b) "in the present case, the undertaking to the Court was not formally embodied in the order directing the compromise to be recorded, nor was it specifically set forth in the decree. " * * * * * * * * * * * * * (b) "in the present case, the undertaking to the Court was not formally embodied in the order directing the compromise to be recorded, nor was it specifically set forth in the decree. It may be that the clear implication of the order was that there was an undertaking to the Court to vacate the premises on or before the 2nd January, 1952. At the same time a litigant in the position of the opposite party might have been under a bona fide misapprehension as to the effect of the order of this Court and the decree passed therein. " ( 55 ) IN order to apply the proposition of law laid down in above quoted decision we have to construe the terms and try to find out if the terms fall within the mischief of the decision. ( 56 ) WE have already hereinbefore set out the terms of the decree in S. A. 770 of 1958 in extensor. The terms of compromise were not recorded by the parties in writing. The terms were recorded by this Court on the representation made by Advocates for the parties. The terms were: -" (a) The defendant respondent shall quit and vacate the premises in dispute and render peaceful possession to the plaintiff appellant with the expiry of the month of July, 1962. There shall be a decree for eviction passed but the decree for eviction shall not be executed until the expiry of the month of July, 1962, provided, however, the defendant respondent pays continues to pay a sum of money equivalent to the monthly rent, month by month, within the 15th day of each succeeding month, and (b) If default is made in paying the money, as hereby directed, the appellant shall be absolved from the restraint put on her from executing the decree for eviction. " ( 57 ) BY consent of the parties the appeal was disposed of on those terms and there was note added to the effect:"that the respondent (meaning the present opposite party) who is personally present in Court gives an undertaking to the effect that he would quit, vacate and render peaceful possession of the premises in dispute to the appellant (meaning the present petitioner) with the expiry of the month of July, 1962. " ( 58 ) THIS undertaking cannot be taken to have been given by the respondent (the present opposite party) to the appellant (the present petitioner ). Under the two terms settled between the parties, it was already agreed that the respondent shall vacate the disputed premises and render possession thereof with the expiry of the month of July, 1962. The respondent did not, by consent, suffer a mere decree for eviction but an ejectment decree with a date fixed for vacating the premises. On the face of the terms agreed upon, there was no scope for giving a further undertaking to the decree-holder to vacate the premises on the date fixed by agreement. Therefore, the construction that we put upon the decree is that the undertaking was given to this Court, so as to reinforce the term that the judgment-debtor shall vacate the disputed premises on the date agreed upon. On the point that the undertaking was given to this Court the judgment-debtor opposite party is himself under no misapprehension. In answer to our questions 1 to 9, the opposite party gave the following reply: -"do you remember that Second Appeal No. 770/58 in which you were the respondent was disposed of on terms agreed upon between the appellant and yourself? - Yes I remember. 2. On the date of settlement you were personally present in the Court. Do you remember? - Yes. 3. On that date did you give an undertaking to this Court that you will quit, vacate and render peaceful possession of the disputed premises on the expiry of the month of July, 1962? - Yes. 4. Now, did you honour that undertaking and quit the premises on the expiry of July, 1962? - Yes. 5. When did you do this? - On the 25th July, 1962, I wrote a letter under postal certificate and on the 30th I received a telephone call stating that they could not take possession because there was a stay from another bench. I do not remember the exact number. 6. Who obtained that stay order? - I moved that application before July, 1962, I got the stay. 7. Stay of the undertaking given by you in this Court? - That was in another case. 8. Do you say that you obtained a stay of the undertaking given to this Court? - No. 9. What was the nature of the stay? Who obtained that stay order? - I moved that application before July, 1962, I got the stay. 7. Stay of the undertaking given by you in this Court? - That was in another case. 8. Do you say that you obtained a stay of the undertaking given to this Court? - No. 9. What was the nature of the stay? - The landlord granted a receipt to me. From that time onward, I became a tenant and began to deposit rent with the Rent Controller. There was another order from the Court to submit further rents to the landlord besides the rent already deposited with the Rent Controller. Then, in that suit, again, there was a compromise. After compromise, they again, wanted to execute the decree before 1962; that was a case in the lower Court and from that I went to High Court and I got a stay. When this decree came up against me, I did not oppose it. It was passed against me on 6th December, 1962. " ( 59 ) IT was also his own case that either he got himself relieved of the undertaking by subsequent arrangement with the decree-holder or that he honoured the undertaking by his letters dated July 25 and 60, 1962. We therefore, hold that the undertaking given by the opposite party was an undertaking given to this Court and he always understood the undertaking as one given to this Court. ( 60 ) ON the construction of the decree we further hold that there was no provision in the decree for consequences of the breach of the undertaking to this Court. The decree provided that it should not be executed until the expiry of July, 1962, if the judgment-debtor paid and continued to pay a sum equivalent to the monthly rent within the 15th day of each succeeding month. The consequence for default or payment was that the decree-holder would be absolved from the restraint put upon execution of the decree until the expiry of July, 1962. The decree contained no consequences for breach of the undertaking. Therefore, there is no scope for the application of the principles laid down in (7) Sukumar Mitra's case (Supra) in the facts and circumstances of the instant case. Both the branches of the alternative argument of Mr. Sen Gupta must therefore be repelled. The decree contained no consequences for breach of the undertaking. Therefore, there is no scope for the application of the principles laid down in (7) Sukumar Mitra's case (Supra) in the facts and circumstances of the instant case. Both the branches of the alternative argument of Mr. Sen Gupta must therefore be repelled. ( 61 ) WE now turn to the last branch of the argument of Mr. Sen Gupta. The opposite party cannot be heard to say that he is not the tenant but Lilabati is. At least since the time that the opposite party filed his Written Statement in T. S. No. 258 of 1953, he was insisting that he was the tenant. In that capacity he suffered the ejectment decree and fought the execution cases. If his letters dated July 25 and 30, 1962 are to be taken into consideration, he allegedly attempted to deliver possession of the premises in his capacity as tenant. It is only before this Court, he took up a changed attitude. In answer to our question Nos. 52, 53, 144 to 174 he gave the following answers: -"52. (Amaresh Roy, J.) Then is it your evidence that you left the door ajar and went away? - I went away from there and Lilabati Sharma had already turned up there and she turned me out. I have nothing to do with her. They are only harassing me. 53. (Banerjee, J.) Who is this Lilabati Sharma? - The wife of Sree Rameswar Sharma, in whose name the electricity bill stands even to-day. There is telephone also in the name of Unity Production in which Mr. Rameswar Sharma is a partner. "* * * * * * * * * * * * *"144. How did Lilabati come to the scene? - I really do not know but when summons were served I came to know that she was a tenant. 145. Which summons? - Lilbati has filed some suit against the land-lady. 147. How are you concerned in that suit? - I have been made a party by her. 148. You know nothing about this Lilabati? - I only know that she was the wife of my partner Rameswar Sarma, who is the real tenant. 149. Real tenant in respect of which premises? The premises in dispute. 150. How could she become the real tenant? - I have been made a party by her. 148. You know nothing about this Lilabati? - I only know that she was the wife of my partner Rameswar Sarma, who is the real tenant. 149. Real tenant in respect of which premises? The premises in dispute. 150. How could she become the real tenant? - According to the receipts given by them and the agreement. 151. Which Agreement? Which receipt? - Receipts given by the landlady to Sarma and they have admitted in their plant that Mr. Sarma is their tenant. 152. In which plaint? - In suit No. 258 of 1953. 153. Do you remember you filed a written statement in the said suit? - Yes, I did file. 154. According to you who was the tenant in respect of the premises? - Rameswar Sarma. 155. Is Rameswar Sarma alive? - He died of cancer. 156. When was that? - He died on the 11th August, 1949. 157. So long as he was alive is it your evidence that he was the tenant? - Yes, I have got proofs. 158. After he died, who became the tenant? - The tenancy continued. There are receipts. 159. Who succeeded Rameswar Sarma? - His wife Lilabati Sarma. 160. The tenancy continued in the name of the wife? - Yes. 161. Now will you look at the copy of the written statements you filed in Title Suit No. 258 of 1953, paragraphs 5 and 6 (shown)? - That is correct. 162. What you said in the written statement is that after the death of Rameswar Sarma you became the tenant? - The landlady struck out the name of Lilabati at her own risk and they substituted my name in her place. 163. You answer the question? The definite case made by you in the written statement was that after the death of Rameswar Sarma, you became the tenant? I have been depositing money in the name of Rameswar Sarma with the Rent Controller. 164. That is no answer to my question. The definite case made by you in the written statement is that you became the tenant after the death of Rameswar Sarma? - I took that attitude. 165. Do you remember having deposed in that suit? - I do not remember. 166. Will you look at the copy of your deposition (Shown)? - Yes. 167. The definite case made by you in the written statement is that you became the tenant after the death of Rameswar Sarma? - I took that attitude. 165. Do you remember having deposed in that suit? - I do not remember. 166. Will you look at the copy of your deposition (Shown)? - Yes. 167. You stated in that deposition that you became the tenant in or about 1939. Is that so? - How can that be because Sarma was living then. 168. That is what you said in your deposition. How do you reconcile that with what you say now? - By 1939 I meant that I was living with Mr. Sarma. 169. That is what you did not say. You said I became tenant long ago in or about 1939 (Shown)? - At that time sub-tenancy was allowed. May be for that reason I said it. 170. I am not concerned with your speculation. Tell me how do you reconcile this with your statement now? - At that time Mr. Sarma was living and I was living with him and as subtenant I was there. 171. Then when you wrote the letter of 25th July, 1962 and the letter of the 30th July, proposing to give up possession you were making a false show; is that your evidence? - No My Lord. 172. If Lilabati was the tenant in occupation, how could you give possession of that premises to the landlady? - They had struck out the name of Lilabati, so I thought I was the tenant. I did not know law. Therefore, I was giving up possession, but later on, when I got the copies of the papers from the Court, I found that they have made Lilabati that they have made Lilabati the tenant. 173. In answer to my question on the last occasion, that was on the 24th May, you said that she (Lilabati) is the real tenant, I am not the tenant? - Yes. 174. You said in the written statement in suit No. 258 of 1953 that you were the real tenant and no one else - which statement is correct? - When I made the written statement I did not know the real position. - Yes. 174. You said in the written statement in suit No. 258 of 1953 that you were the real tenant and no one else - which statement is correct? - When I made the written statement I did not know the real position. Only the landlady knew the real position, then I thought I was the real tenant, but now I have come to know from the papers that they have made her the real tenant. " ( 62 ) IN our opinion, it is not open to the opposite party to say now that he was not the tenant but Lilabati is and that it is impossible for him to give up possession of the disputed premises in possession of another tenant. ( 63 ) MR. Sen Gupta invited our attention to the copy of the plaint in T. S. 258 of 1953 (hereinbefore set out in material particulars), in which the present petitioner described Lilabati as the tenant and to a copy of plaint in T. S. 360 of 1962, being a suit between Lilabati Debi and Chhaya Debi (the present petitioner) which is Annexure 'd' to the Affidavit-in-opposition, in which Lilabati has prayed for establishment of her tenancy right. He contended that the plaintiff cannot enforce the decree for possession against the opposite party. The petitioner amended the mistake as to the name of the tenant in the plaint in T. S. 258 of 1953 by expunging the name of Lilabati and Mr. Sen Gupta does not gain much ground by emphasizing upon the unamended plaint. So far as the claim of Lilabati is concerned, we are not sure of the validity of her claim and cannot make much of it. In our opinion, it is too late for the opposite party to take up the defence now that he was not the tenant under the petitioner. We, therefore, repel the last argument advanced by Mr. Sen Gupta. ( 64 ) IN the view already taken by us, we have to hold that the opposite party violated the undertaking given to this Court by not leaving the disputed premises with the expiry of July, 1962. On his own showing he did not leave the premises till October, 1962. Sen Gupta. ( 64 ) IN the view already taken by us, we have to hold that the opposite party violated the undertaking given to this Court by not leaving the disputed premises with the expiry of July, 1962. On his own showing he did not leave the premises till October, 1962. It appears from paragraph 9 of the petition, paragraphs 3 and 4 of the Supplementary affidavit and paragraph 9 of the affidavit-in-reply, that the opposite party is still living in the disputed premises. In the facts and circumstances of the case, we are inclined to accept the statements. ( 65 ) IN our opinion, the opposite party is guilty of contumacious conduct towards this Court. ( 66 ) NOW the question is how the opposite party should be dealt with by this Court. We need remind ourselves that the remedy by way of committal for contempt should be most jealously and carefully watched and should only be exercised with the greatest reluctance and greatest anxiety on the part of the Judges. ( 67 ) IN the instant case, the petitioner is not merely trying to enforce her remedies under the decree, by proceeding against the opposite party in an action for contempt of Court. She has exposed before us a person who has resorted to disingenuous methods to rid himself of the undertaking given to this Court and has thus offended against public justice. We should not allow such a person to escape without a penalty. At the same time we feel the petitioner was not always alert and by granting a rent receipt in place of a money receipt for mesne profits and by entering into a settlement in Misc. Appeal No. 71 of 1961 gave opportunities to the opposite party to put up a fight against her. ( 68 ) WE think that the ends of justice will be satisfied in this case if we punish the opposite party to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one month. We order accordingly. ( 69 ) THE petitioner is entitled to the costs of this Rule, which we assess at 5 (five) gold mohurs. ( 70 ) THE opposite party is at liberty to pay the fine in the hands of the Deputy Sheriff, who is present in Court to-day. 500/-, in default to suffer simple imprisonment for one month. We order accordingly. ( 69 ) THE petitioner is entitled to the costs of this Rule, which we assess at 5 (five) gold mohurs. ( 70 ) THE opposite party is at liberty to pay the fine in the hands of the Deputy Sheriff, who is present in Court to-day. ( 71 ) LET the Deputy Sheriff act on a copy of the ordering portion of this judgment signed by the Bench Clerk. Contempt Rule issued.