An undertaking given to the court to vacate premises on or before a certain date is not an unqualified undertaking if it is coupled with a provision that in case of failure to vacate the premises, the petitioner would be entitled to execute the decree for possession or take such proceedings as he may be advised.

( 1 ) THIS is a Rule obtained by the petitioner calling upon the opposite party to show cause why he should not be committed for contempt of this Court as a result of a breach of an undertaking given by him to this Court whereby he undertook to the court to vacate the premises on or before 2-1-1952.

( 2 ) THE Rule was issued on the 18-2-1952 on an application filed by the petitioner stating; that there has been a breach of the undertaking and praying to the Court for taking proceedings in contempt against the opposite party.

( 3 ) THE above Rule was served on the opposite party who has appeared in court and has shown cause. In the affidavit in opposition filed by him he has detailed the reasons why he could not vacate the premises on or before 2-1-1952. Mr. Mukherjee who has appeared on his behalf has raised certain legal objections why this Court should not exercise its powers for committing the opposite party for contempt of this Court.

( 4 ) THE facts which are relevant for the present purpose may be stated as follows: The petitioner was the landlord in respect of certain premises being the upper flat of 98a Bakul Bagan Road, Bhowanipore, Calcutta. On an allegation that the opposite party and one Bankim Chandra Mukherjee were in possession as tenants and had failed to vacate the premises inspite of requisite notices the petitioner instituted a suit for ejectment. The suit was decreed by the trial court and an appeal filed by the opposite party to the lower appellate court proved infructuous. The opposite party thereupon preferred a second appeal to this Court. This appeal was heard by Blank J. The learned Judge directed the suit to be remanded to the trial court. After remand the trial court again decreed the petitioner's suit. The opposite party preferred a second appeal to this Court which was also dismissed. The opposite party then preferred an appeal under Clause 15 of the Letters Patent, being Letters Patent Appeal No. 2 of 1951. This appeal tame up for hearing before this Bench on the 29-1-1951. On that date, the petitioner and the opposite party filed a joint petition of compromise. It is necessary to recite only two of the terms of the said joint petition of compromise, viz. , clauses (3) and (5 ). Clause (3) states that"the appellant Tarasankar Ghose, opposite party undertakes to Court to vacate and make over peaceful and vacant possession of the upper flat in the premises No. 98a Bakul Bagan Road, Bhowanipore, Calcutta, to the petitioner Sukumar Mitra (petitioner) on or before the 2nd January 1952. . . . . . . . . . . . . . . "clause (5) states that"in case the appellant Tarasankar Ghose (opposite party) fails to vacate the said upper flat in the said premises within the period aforesaid, the said respondent Sukumar Mitra (petitioner) will be entitled to execute the decree for possession passed by the court below on 29th June 1949 and/or will also be entitled to take such proceedings against the appellant as he may be advised and the said appellant Tarasankar Ghose will not be entitled to raise any objection thereto or to be entitled to any further time on any grounds whatsoever. "

( 5 ) THE said joint petition of compromise was signed by the appellant Tarasankar Ghose (opposite party) and the respondent Sukumar Mitra (petitioner) on the 29th of January 1951. This Bench recorded an order which inter alia stated as follows:"read an application filed in Court today and heard learned Advocates. The appellant is present in Court and agrees to the terms set out in the petition. Let the appeal and the connected Rule be disposed of in terms of the petition of compromise filed in Court today and let the petition of compromise form part of the decree. . . . . . . . . . . . . . . "

( 6 ) A decree was drawn up accordingly. The decree inter alia stated. . . . . . . . . . . . . . . "it is hereby ordered and decreed, by and with consent of the appellant and the plaintiff-respondent, that the appeal as between them b