Blackwell, J.
1. This is a notice of motion dated December 11, 1931, on behalf of the defendants to the suit for an order that Bhagwandas Maganbhai, the respondent, should be committed to jail for contempt of the Courts order dated October 16, 1931.
2. Mr. Engineer, who appears for the defendants, has sought to go into the previous history of the matters which led up to the passing of the order of October 16, 1931. In my opinion, it is quite unnecessary for the proper determination of this notice of motion to go into suchmatters and on the authority of Navivahoo v. Narotamdas Candas I.L.R. (1882) Bom. 5 to which the Advocate General who appears for the respondent was good enough to draw my attention, I also think that it is improper.
3. The order of October 16, 1931, was a consent order made on hearing the attorneys for the plaintiffs, the attorneys for the defendants, and the attorneys for the respondent, who had acted as a receiver in the suit. By that consent order the respondent was ordered to pay to defendant No. 4, as the present receiver in the suit, the sum of Rs. 16,500 due and payable by the respondent as receiver of the estate of Bai Sonabai Bapu Velinkar mentioned in the plaint. Thatsum was by the order directed to be paid in the following manner, namely, Rs. 2,000 on or before October 22, 1931, a further sum of Rs. 2,000 on or before October 29, 1931, and the balance within five months from the date of the order. It was further provided by consent that the plaintiffs undertook to pay the said sum of Rs. 16,500 payable by the respondent from their share in the estate if the respondent failed to pay the same within five months from the date of the order. It was also ordered that if the sum of Rs. 16,600 was not paid by the respondent within five months from the date of the order, he should pay interest at the rate of seven per cent. per annum from that date till payment on such sum as might then remain due.
4. This order of October 16, 1931, was served on the respondent's attorneys on October 19, 1931. A certified copy of it was served on the respondent personally on December 21, 1931. The notice of motion, which was dated December 11, 1931, was served personally on the respondent on January 22, 1932, and was filed on January 28, 1932.
5. The first point taken by the Advocate General in answer is that the order in this case ought to have been personally served, He drew my attention to Oswald on Contempt, 3rdEdn., p. 199, where it is stated that the judgment or order should be served on the party personally, except in thecases therein mentioned, none of which apply to the case before me. Mr. Engineer, on the other hand, has contended that in order to justify committal for breach of the order in question, it is not necessary that it should have been served upon the respondent, if it is established that he had notice of it. In support of his submission that the respondent had notice of the order he relies, first, upon the fact that it was an order made by the consent of the respondent's attorneys, and next upon the fact that when the respondent failed to pay the two sums of Rs. 2,000 on October 22 and 29, 1931, respectively, letters were written by the defendants' attorneys dated October 23 and November 2, 1931, to the respondent's attorneys complaining of this fact and threatening proceedings, and that in answer thereto the respondent's attorneys by a letter dated November 3, 1931, expressed the respondent's regret for his failure to pay, stated that the respondent would pay after Diwali, and requesting that proceedings might not be taken. Those letters are set out as Exhibit A to the affidavit of Waman Narayan Velinkar dated December 11, 1931, in support of the notice of motion, The Advocate General, on the other hand, has drawn attention to the fact that there is, so far as personal service of the order is required, a distinction between an order which merely prohibits a person from doing something, and an order which requires him to do something. In the former case personal service is not essential, and it will be enough if it be proved that the party had notice aliunde (see Oswald on Contempt, p. 203). In the latter case personal service is essential, and it has been held that the fact that the person ordered to do an act was actually in Court when the order was made is not a ground for dispensing with personal service of it (see Tuck, In re. Murch v. Loosemore [1906] 1 Ch. 692. Moreover, it has been laid down in Bai Moolbai v. Chunilal Pitamber I.L.R. (1909) Bom. 630 : 11 Bom. L.R. 360 that service upon a party's attorneys, where an application is made for committal of a person to jail for disobedience of the Court's order, is not sufficient, and that personal service must be proved, Accordingly, I hold that the mere service of the order of October 16 1951, upon the respondent's attorneys on October 19,1931, is not sufficient.
6. Mr. Engineer has drawn my attention to the fact that at any rate before the notice of motion was served the respondent had been personally served with the order of October 16, 1931. That is perfectly true, The notice of motion, however, was dated December 11, 1931, and the affidavit in support of it was sworn on the same day. The allegation in the affidavit is that on that day the respondent was guilty of contempt, In my opinion, this is not the case. I hold that personal service of the order upon the respondent was necessary, and that until he had been person ally served, he was not guilty of any contempt. Accordingly, the notice of motion having been taken out and the affidavit in support of it having been sworn before service of the order, in my opinion it is no answer to say that long after those dates, and merely before the notice of motion was served upon the respondent, he was in fact served with the order. In my view, before a notice of motion for contempt can properly be taken out, personal service of the order in a case such as that before me must have been effected.
7. The next point taken by the Advocate General is that the charge ought to have been specifically set out in the notice of motion. It is merely stated is the notice of motion that the Court will be asked for an order to commit the respondent to jail for contempt of the Court's order, What the particular contempt alleged is is not stated. It is contended in answer by Mr. Engineer that sufficient particularity as to the nature of the charge is given in paragraph 9 of the affidavit of Waman Narayan Velinkar dated December 11, 1931, and that notice is given by the notice of motion that that affidavit will be relied upon, His submission is that all that is required is that the respondent shall be given notice of the precise charges against him in order that he may have an opportunity of knowing them and of meeting them if he can. There are some useful observations on the question of giving precise notice of the charge in Mr. Justice Russell's judgment in Bai Moolbai v. Chunilal Pitamber, to which I have already referred, at p. 633, where that learned Judge points out that proceedings for contempt of Court are in the nature of a criminal offence, and that precise charges should accordingly be framed, In my opinion, the precise breach or breaches of the order complained of should be set out in the notice of motion itself, and the respondent should not be left to ascertain, if he can, from the affidavit relied upon in support what the charges are. It may well be that in paragraph 9 of the affidavit in support notice of the breaches complained of has been given in this particular case. But, in my judgment, a respondent ought not to be left to gather, if he can, from the terms of the affidavit in support what is the precise nature of the charge brought against him. In this connection it is useful to refer to the form of notice of motion for contempt for breach of a judgment or order, which is set out in Appendix II, at p. 272, in Oswald on Contempt. It will be seen that that form contemplates the precise nature of the breach of the judgment or order being set out in the notice of motion. I hold, therefore, that the notice of motion in this case is defective.
8. Next it has been contended by the Advocate General that the order of October 16, 1931, is a mere order for the payment of money, and that it can only be enforced in India by execution and not by proceedings for committal for contempt. He has relied upon Advocate General of Bombay v. Gangji Akhai I.L.R. (1894) Bom. 152 In that case on September 1, 1890, in an administration suit in which Gangji Akhai as executor of a will was defendant, a receiver was appointed, and Gangji Akhai was ordered to deliver to the receiver certain Government promissory notes of the value of Rs. 45,000 belonging to the estate, which was the subject matter of the suit. He did not obey the order, and absconded from Bombay, and on March 16, 1891, in his absence, a rule for his attachment for contempt was made absolute. It was afterwards ascertained that he had used the notes for his own purpose. A warrant was issued for his arrest, and he was apprehended, and on April 23, 1891, he was convicted of criminal breach of trust and sentenced to eighteen months' imprisonment. Previously to his trial he had been committed to jail for contempt of the order of September 1890, with the result that after his conviction he was in jail both under his sentence and under the order for contempt. On October 4, 1892, the Court passed a money decree in the administration suit against the defendant for Rs. 80,000 and costs. The sentence passed upon the defendant for the criminal offence expired on October 22, 1892. Applications for his release from imprisonment under the order for contempt were made in December 1892 and April 10, 1893, but were refused. An application was then again made by motion for his release. It was held by Mr. Justice Farran that he should be released, The learned Judge took the view that the right of the plaintiff to demand the promissory notes was merged in the money decree, and that the right to demand the notes was gone, and that the order that he should deliver them up to the receiver had ceased to be operative. Consequently he held that the commitment, in so far as it was intended to enforce obedience to the order of September 1, 1890, could no longer be continued on that ground. In his view it was the decree and not the order, which, after the passing of the decree, constituted the measure of the obligation between the parties. He further held that that was a simple money decree, and that it was contrary to the expressly declared will of the legislature and to all modern principle and precedent to keep a defendant under commitment for contempt to compel him to pay a money decree. Relying upon this authority the Advocate General submitted that the order of October 16, 1931, was only enforceable under the provisions of Order XXI. In this connection he referred to Rules 11 and 37 of that Order. He drew attention also to Section 36 of the Civil Procedure Code, which lays down that the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution oforders. He also drew attention to Section 58 of the Code where it is laid down that we have a person is detained in the civil prison in execution of a decree, ha shall not be detained for more than six months, if the decree exceeds Rs. 50. Accordingly, the Advocate General submitted that if the procedure now sought to be enforced against a receiver were to be given effect to, any executor or trustee, who failed to pay monies pursuant to an order of the Court, might be liable to be kept in prison until he paid, and for a longer period than the six months contemplated by the provisions of the Civil Procedure Code above referred to.
9. On the other hand, Mr. Engineer submitted that the argument of the learned Advocate General had no application to the case of a receiver who is an officer of the Court. He replied upon In re Gent. Gent.-Davis v. Harris (1888) 40 Ch. D. 190 which lays down that a receiver is liable to attachment for breach of an order of the Court to pay money, whether he has been discharged from being a receiver or not. The Advocate General in answer pointed out that, as appears from the report in that case, a receiver in England who receives money is in a fiduciary position and as such comes within the meaning of the third exception to Section 4 of the Debtors Act, 1869, and he contended that that was really the basis of the Court's decision that a receiver in England was liable to attachment for breach of an order to pay money. He submitted that that case would have no application in India where it is a part of the law of the land that any person, who does not pay money pursuant to a decree or an order, is liable to execution and to be committed to jail, Mr. Engineer further relied upon Martin v. Lawrence I.L.R. (1879) Cal. 655. That was a case where the decree in an administration suit directed A, a party to the suit, to pay over a sum of money, which she admitted was in her hands, to her own attorney in the suit, to be applied by him as directed by the decree. She refused to pay over the money, and was imprisoned for disobedience to the Court's order. After she had been in prison for six months, she applied to the Judge of the Court below, under Section 341 of the Civil Procedure Code then in force, to be discharged. The order was refused. It was held on appeal that the proceeding under which she had been imprisoned was not in execution of a decree, but that she was imprisoned under process of contempt, and that the provisions of Sections 841 and 342 did not apply to the case. It was held by Mr. Justice White in that case that the jurisdiction of the High Court to imprison for contempt is a jurisdiction that it has inherited from the old Supreme Court, and that this jurisdiction has not been removed or affected by the Civil Procedure Code. The Advocate General admitted that that was an authority against his contention in the present case, but he submitted that it was in conflict with the case relied upon by him in Advocate General of Bombay v. Gangji Akhai to which I have referred, and submitted that that authority was binding upon me. I think that this is so, and that in the case of an administrator or executor or trustee proceedings by way of contempt for failure to comply with an order to pay money would be bad in law. I am not, however, satisfied that this is so in the case of a person, who is an officer of the Court, such as a receiver. Mr. Engineer relied upon Hassonbhoy v. Cowasji Jehangir Jassawalla I.L.R. (1881) Bom. 1 and Navivahoo v. Narotamdas Candas I.L.R. (1882) Bom. 5 in support of his contention that the Court can commit persons for breach of their orders. In those two cases the alleged contempt was failure to comply with orders for inspection and discovery. The learned Advocate General does not dispute that this Court inherits the powers of the English Courts so far as the power to commit for contempt for breach of its orders goes. But he submits that no such power exists where the breach of the order complained of is a failure to pay a sum of money. On the authority of the case of Advocate General of Bombay v. Gangji Akhai I.L.R. (1894) Bom. 152 which he relies on, I think that this is so, in the case of failure by a person who is not an officer of the Court to comply with an order of the Court to pay money. But that decision is not, in my opinion, an authority for the proposition that the Court is not empowered to punish on proceedings for contempt one of its own officers for failure to comply with the breach of the Court's order, whatever that failure may be, even if it does amount to failure to comply with an order to pay money. Accordingly, ifI had to decide this motion on that point alone, I should be against the contention of the Advocate General, and should hold that it was open to me, if I thought fit, to commit a receiver, who had been guilty of failure to comply with the Court's order to pay money as such receiver.
10. The next point taken by the Advocate General is that the order of October 16, 1931, on the fact of it itself contemplates the possibility of default on the part of the receiver. He accordingly contends that the breach of such an order ought not to be regarded as punishable by contempt proceedings. In answer to this Mr. Engineer has drawn my attention to a passage in Kerr onReceivers, 9th Edn., p. 343, which is in these terms :-
Where a receiver neglects to bring in his accounts, or, having brought them in, fails to pay the balance certified to be due from him within the time limited, and has been proceeded against for the contempt of Court, the party prosecuting the contempt may proceed against the sureties. But he is not at liberty to sue the sureties until he has taken proceedings against the receiver for the contempt, unless the receiver has become bankrupt, or it can be shown that proceedings against him for contempt would be useless.
11. Mr. Engineer relies on this passage and submits that it would not be open to him to enforce the undertaking given by the plaintiffs in the consent order to pay if the respondent makes a default without taking contempt proceedings against the respondent, An answer to this appears to me to be that it would have been open to the present defendants, if they had been so minded, to enforce the order by execution, I do not, however, say that they might not also have proceeded by way of contempt proceedings, if they had taken the necessary and proper steps as regards service of the order the breach of which was complained of. The mere fact that the plaintiffs undertook to pay the moneys payable by the respondent if he failed to pay does not, in my opinion, in any way relieve the respondent from his obligation to obey the Court's order. Moreover, as appears from the terms of the order itself, the plaintiffs' undertaking only comes into operation if the respondent makes a default for a period of i3ve months from the date of the order. That time has not yet arrived. Accordingly, it seems to me that the contention of the Advocate Generalthat merely because the defendants have got the security of the plaintiffs they are debarred from taking contempt proceedings is ill-founded.
12. On the other hand, even if the contempt proceedings had been in order as regards personal service and the form of the notice of motion, the Court would have had to consider whether in the particular circumstances of the case it would commit the respondent for contempt. In a case like the present where the order so sought to be enforced is a consent order, where on the face of it it contemplates a possible breach by the respondent, where it provides for the payment of interest if he does make a default, and where security is provided for upon the footing that possibly he may make a default, I think that the Court ought to hesitate very considerably before committing the respondent to prison for contempt. Even if the proceedings had been in order in this case, in the exercise of my discretion I should have declined to do so.
13. In the result, this notice of motion will be dismissed with costs.