P.B. Gajendragadkar JUDGMENT
M.C. Chagla, C.J.
[1] This is an appeal from a judgment of Bhagwati J., by which be made an order on a motion for contempt by which he ordered the committal of the appellants unless certain requisitions contained in the order were carried out within the time specified therein.
[2] The suit which led to the taking out of this motion was for specific performance, and alternatively for damages. The plaintiffs were the lessees of a cinema known as the "Paradise Cinema" and in the lease there was a clause which gave the plaintiffs an option to purchase the property. The grievance of the plaintiffs was that, on 3rd February 1942, the defendants had entered into an agreement of sale of the property in favour of the Paradise Cinema, Limited, without giving them the option to which they were entitled; and it was to enforce this option that the suit was filed. The answer given by the defendants was that the plaintiffs were informed of the agreement of sale with the Paradise Cinema, Limited, and that the plaintiffs had failed to exercise the option. The defendants further alleged that, subsequent to the agreement of 3rd February 1942, in view of the objection taken to it by the head lessor, an agreement was arrived at on 4th September 1945, by which the defendants had transferred to the company the rents, issues and profits of the property for a period of fifteen years commencing from 3rd February 1942. A supplemental plaint was filed, and the plaintiffs asked that they should be given the benefit of this agreement which was arrived at with the company. The suit came up for hearing and it went on for about a week. The parties then compromised the action, and the consent terms were reduced to writing and signed by counsel for the parties. The particular term with which we are concerned in this appeal is the one with regard to the execution of a lease within a period of two months by the defendants in favour of the plaintiffs in respect of the property in suit. The term provided that the defendants would execute such a lease ; and the term further provided that the defendants undertook to have the Paradise Cinema, Limited, to join as a confirming party to the lease. The defendants failed to execute the lease as agreed upon, and execution proceedings had to be taken out. It is unnecessary to go into the details of those proceedings, but ultimately an order was made by the Court by which the Prothonotary of this Court had to execute the lease as the defendants failed to do so. The plaintiffs then called upon the defendants to get the Paradise Cinema, Limited, to join as a confirming party to the lease, and the defendants having failed to comply with that requisition, a motion was taken out by the plaintiffs for contempt of Court. Bhagwati J., held that there was a wilful default on the part of the defendants, and thereupon he ordered that the defendants should carry out their undertaking within one month from the date on which the order was passed ; otherwise a warrant was to issue for the committal of the defendants to prison.
[3] Now, Mr. Desai before us has contended that no undertaking was given to the Court in respect of which committal proceedings could be taken out. He says that the undertaking referred to in the decree was merely a solemn promise given by his clients to the other side. Mr. Desai has argued that no undertaking to the Court can be given where an action is compromised and where the Court is bound under O. 23, R. 3, to record the compromise. Mr. Desai says that the Court is not interested in what terms the parties have agreed to; the parties may agree to any terms, and if they are sui juris, the Court is bound to pass a decree in terms of the compromise ; and, therefore, even though the consent terms may provide for an undertaking by one party, such an undertaking can never be construed as an underta........