Contempt proceedings are not a substitute for the execution process, and consent terms and undertakings can be enforced as a decree under the Civil Procedure Code.

JUDGMENT :

S.M. Soni, J.

This petition is filed under the Contempt of Courts Act to take necessary action against the respondents, as they have not honoured the promise and undertaking given by them in Company Petition No. 152 of 1985. The promise is as per the consent terms. The undertaking is given by one J. P. Patel and P. J. Patel to the effect that in case the company fails to pay the amount agreed as per the consent terms, they agree to make them personally liable to pay the same. It is the case of the petitioner that in view of the promise and undertaking, they were made to withdraw Company Petition No. 152 of 1985 with a liberty to revive and that the respondents by not complying with the consent terms and the undertaking, have committed wilful breach of the same. It is, therefore, prayed for taking action under the Contempt of Courts Act.

2. If one reads the consent terms, it is clear that the company has agreed to pay the principal amount by way of 12 monthly instalments. By undertaking, one J. P. Patel and P. J. Patel, respondents Nos. 2 and 3 herein, have personally undertaken the liability to pay the same if the company does not pay the amount agreed to therein on account of its being wound up or otherwise. This is an order passed by the company court in terms of the consent terms and undertaking.

3. Section 634 of the Companies Act, 1956, provides for enforcement of orders of the courts, which reads as under :

"Any order made by a court under this Act may be enforced in the same manner as a decree made by the court in a suit pending therein."

4. So, the consent terms and undertaking could have been enforced by the petitioner, as if it is a decree and by way of execution under the provisions of the Civil Procedure Code.

5. In the case of Alhar Co-operative Credit Service Society v. Sham Lal (Civil Appeal No. 2050 of 1990 arising out of S. L. P. (C) No. 1770 of 1990), the Supreme Court has observed as under :

"Contempt proceedings are again not intended to be a substitute of the execution process and, therefore, care should have been taken before entertaining the contempt petition to examine the maintainability of such action."

6. Therefore, it is clear from the Supreme Court judgment that contempt proceedings are not a substitute for the execution process. Section 634 of the Companies Act, 1956, referred to above, provides for treating the order of the company court as a decree and if it is a decree, the same can be executed under the provisions of the Civil Procedure Code, vide Order 21. In view of this Act, when the petitioner could have executed the order passed by the company court, contempt proceedings, being not a substitute much less not intended to be a substitute, this petition cannot be entertained.

7. Any wilful breach of an undertaking given to a court is a civil contempt as per the definition of "civil contempt" in section 2(b) of the Contempt of Courts Act. It is alleged by the petitioner that respondents Nos. 2 and 3 have not respected or honoured their undertaking given before the company court and they have, therefore, committed contempt of the company court. If one reads the undertaking, it is clear that what they have undertaken is the liability of the company, if the same is not discharged by it on account of its being wound up or otherwise. There is nothing on record to show why the company could not discharge its liability. There is nothing on record even by way of an averment to show that the company has not discharged its liability on account of its being wound up or otherwise. In the absence of any such fact, situation arising out of the undertaking does not become operative. Hence, there is no question of breach of undertaking, much less wilful breach thereof. If one reads the undertaking, it is suggestive that the consent terms, if can be executed, can be executed against them. This apart, in case of failure to implement the consent terms, the right of the petitioner is not lost. The petitioner is