The usual process of civil litigation broadly involves the presentation of plaint by the plaintiff against the defendant, providing evidence, exchange of oral arguments and finally passing of a decree by the court on account of consent or adjudication. In the event of a party disobeying such a decree, the aggrieved party may file an execution petition under Order 21 of CPC or a contempt petition under the Contempt of Courts Act, 1971 alleging civil contempt.

The Conundrum

The term ‘execution’ has not been defined anywhere in the Code but it generally refers to the enforcement of a decree by the Court through various modes namely delivery of the property, attachment and sale of property, arrest and detention etc.(1) An execution petition can also be filed requiring specific performance of a contract by the judgment debtor. Conversely, a contempt petition can be filed in the court to seek remedy against civil contempt. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt as meaning "wilful disobedience to any judgment decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to Court".(2)

A bare perusal of the above shows that an aggrieved party may invoke either execution petition or contempt petition for enforcement of the decrees so disobeyed. However, the Apex Court has provided differing opinions on the scope of a contempt petition ultimately creating ambiguity and uncertainty. The author discusses this issue in majorly three parts which are as follows:

Part I: Validity of a Contempt petition in the event of consent or compromise decree

A consent decree simply stated, is a decree passed by the Court in the event of a compromise or agreement between the disputed parties to a suit.

In the case of Babu Ram Gupta v. Sudhir Bhasin,(3) the Apex Court held that a contempt petition filed in circumstances involving compromise or consent decree cannot hold much water and is liable to be quashed. The Court reasoned that since in a compromise decree, none of the parties give an express undertaking to it for performing the obligations as mentioned in the compromise, any disobeyance of the decree cannot be said to have caused contempt of court and therefore, the remedy lies in filing an execution petition.

In this regard, the Court went on to state that “if it were to be held that non-compliance of a compromise decree or consent order amounts to contempt of the court, the provisions of Civil Procedure Code, 1908 (CPC) related to execution of decrees may not be resorted to at all. There is a clear-cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorical undertaking given by any of the parties.”

On the other hand, the Court in Bajranglal Gangadhar Khemka v. Kapurchand Ltd(4) took a turn and held that 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 a compromise, still, when the court passes a decree, it puts its imprimatur 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 and hence, any breach of it could be remedied by committal proceedings.

The author argues that a compromise decree is not a decision of the court and is merely in the nature of a contract between the disputed parties. Further, the Court has, on numerous occasions set aside a compromise decree upon grounds available for invalidating a contract and therefore, it cannot be put on the same pedestal as an ordinary decree. Besides, even if the Court puts its seal on the compromise, the argument that any disobeyance would lead to contempt is untenable because a compromise between the parties is undertaken independent of the Court’s process and any disobeyance would lead to breach of the contract and not cause any interference with the due course of justice. In view of this, the appropriate remedy lies in execution petition.

Part II: Meaning of term Undertaking

The definition of civil contempt as provided includes the term undertaking, though, it does not specify the nature of such undertaking i.e. express or implied, leading to different interpretations. According to Black’s Law Dictionary, an undertaking means a promise, engagement, or stipulation or, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party.

The SC in Babu Ram Gupta case (supra) took a narrow view and held that wilful disobedience or breach of an undertaking would take place only if the party has given an express undertaking or such undertaking has been incorporated in the order impugned

On the other hand, in Rita Markandey v. Surjit Singh Arora(5), this Court concluded that even if the parties have not filed an express undertaking before the court, but if the court is induced to sanction a particular course of action on the basis of the representation made by such a party and the court ultimately finds that the party never intended to act on such representation, then the party would be guilty of committing contempt of court. The same reasoning has been reiterated in the case of Bank of Baroda v. Sadruddin Hasan Daya.

The author, in this regard, argues that a narrow interpretation of the term must be resisted as the parties often get a favorable order from the Court on the pretext of an undertaking given to it which not only affects the interest of the opposite party but interferes with the due course of justice. An ordinary decree so passed by the Court defines the rights and liabilities of the parties, implying that the defendant undertakes to pay off his liabilities, failing which, he will be liable for contempt. In the author’s opinion, the view taken by the Court in Rita Markandey case is a more reasonable one since it prevents the parties from taking an undue advantage that they get by making representations that ordinarily do not qualify as undertaking.

Part III: Legality of a Contempt petition on account of existence of alternate remedies

Another unsettled issue surrounding contempt petition relates to question of its legality if alternate remedy in the form of execution petition is available.

In the case of Rama Narang v. Ramesh Narang(7), the SC opined that all decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also executable. But merely because an order or decree is executable, would not take away the Courts jurisdiction to deal with a matter under the Act provided the Court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice.

On the contrary, the Court in the case of R.N. Dey and Anr v. Bhagyabati Pramanik and Ors.(8), took a conservative approach and adjudged in favor of cautious use of contempt petition and provided that the weapon of contempt is not to be used in abundance or misused. The Court stated that, “Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for.”

The author argues that civil contempt and disobeyance of an ordinary decree are two different concepts, the former being graver and hence cannot be equated. It is to be noted that the foundation of a contempt petition rests in the contempt committed by a party, thereby playing serious fraud upon the court and bringing into disrepute the very authority of the judicial institution and as such, its invocation must be done in a restricted manner. The author opines that a contempt petition invoked for enforcement of decrees must not be allowed since it is the Court that takes action against the defendant and the aggrieved party merely provides assistance in proving the guilt of defendant.

Conclusion
The dilemma concerning contempt and execution petition in India has been in existence since time immemorial, thereby, indicating the need to settle the law of land. Various contrasting judgments of the Apex Court have instead of illuminating, darkened the grey area leading to ambiguities and unending litigation. While there exist fundamental differences between civil contempt and mere disobeyance of a decree in the normative sphere, it is difficult to distinguish the two in the positive sphere. Therefore, in the author’s opinion, a guiding principle needs to be laid down by the Court resolving this lacunae and consequently preventing the parties from abusing the process of Court.

End notes:

1. Official Website, Lawzonline, https://www.lawzonline.com/bareacts/civil-procedure-code/orderXXI-code-of-civil-procedure.htm
2. Official Website, IndianKanoon, https://indiankanoon.org/doc/654554/
3. 1979 AIR 1528.
4. AIR 1950 Bom 336.
5. Contempt Petition (C) No. 286 of 1995 in Civil Appeal No. 3056 of 1989.
6. Contempt Petition (C) No. 180 of 2001.
7. Contempt Petition (C) No. 148 of 2003 in Civil Appeal No. 366 of 1998.
8. (2000) 4 SCC 400.