G.R. BHATTACHARJEE, J.

(1) THIS appeal under section 19 (l) (a) of the Contempt of Courts Act, 1971 is directed against the order of a learned Single Judge of this Court passed on a contempt application in CO. No. 4076 of 1990 wherein the learned Judge held the appellant guilty of contempt and directed him to purge the contempt by making redelivery of possession of the concerned property by a certain date. It was also indicated by the learned Judge that in the event of his failure to comply. with the order the court might be under a painful duty to confine the contemner in civil prison. It is indeed a case of civil contempt.

(2) A preliminary objection has been taken on behalf of the respondents that the appeal is not maintainable on the ground that the impugned order does not impose any punishment for contempt and no appeal lies under the said section 19 against any order passed in any proceeding for contempt except against an order of punishment imposed upon a contemner in terms of section 12 of the Act! Here let us look to the historical background of the contempt jurisdiction exercised by the High Court. Article 215 of the Constitution of India provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Neither the said Article 215 nor any other Article of the Constitution defines what a court of record is nor -delineates what is meant by "all the power of such a court" except making an inclusive reference to the power to punish for contempt of itself out of the multidimensional powers capsulized within the contours of the expression "all the powers of such a court". As a matter of historical fact the High Court being a superior court has always enjoyed the status of a court of record and has exercised the powers of such a court including the power to punish for contempt of itself. It is not difficult to see that Article 215 recognizes the existent powers of the High Court as a court of record rather than creates or confers such power. In this connection, we may also refer to the following observations of a Division Bench of this Court in S. K. Gupta v. B. K. Sen, AIR 1959 Cal 106 [LQ/CalHC/1958/201] :

"the jurisdiction to punish for its own contempt which this court exercises as a Court of Record is not derived from any statute but arises out of the very fact that it is a Court of Record and that in the case of such a court jurisdiction to punish for its own contempt is an essential auxiliary to the administration of justice".

(3) THE law of contempt has developed as a part of the Common Law. The power to deal with contempt has been treated as an inherent power of a Court of Record. There are decisions of English Courts from early times where the courts assumed jurisdiction in taking committal proceedings against persons who were guilty of publishing scandalous matter in respect of the court itself. The power summarily to commit for contempt is considered necessary for the proper administration of justice (see Brahma Prakash v. State of U. P. , AIR 1954 SC 10 [LQ/SC/1953/58] : 1954 Cr. W 238). Generally speaking contempt is not regarded as an ordinary offence. Sovereignty of the State is a two dimensional concept. The foreign aspect of this dimension relates to the territorial and political sovereignty of the State which is protected mainly by the armed forces. On the other hand the domestic aspect of this dimension relates to maintenance of law and order within the boundaries of the State. Making of law for the governance of the subjects defining their rights, duties and liabilities inter se as well as vis-a-vis the State itself and the enforcement thereof are acts of the State falling within its sovereignty jurisdiction. The court functioning as the arbiter of legal wrangles and penal awards acts as sentinel of the domestic sovereignty of the State. Without Court which is the adjudication machinery of the State, the administration of law and justice would have been in utter chaos and quandary leading to counter-productive sequels threatening to de-stabilise or attenuate the attributes of domestic sovereignty. Contumacious attack on court, therefore signifies disrespect to the sovereignty of the State, and there lies the historical justification for the assumption of special jurisdiction by superior courts as courts of record to deal with contempts by adopting summary procedure in exercise of their inherent power. The exercise of contempt jurisdiction by court is an exercise of its inherent power flowing from the sovereignty jurisdiction of the State of which it is a functional constituent existing for public good. Truly speaking, the contempt jurisdiction of the court is the confluence of the twin streams of judicial care, namely, the Courts concern for public good and its responsibility to uphold the constitutional sovereignty of the State.

(4) ARTICLE 215 of the Constitution does not define or enumerate all the powers which the High Court enjoys as a court of record. It only mentions specifically about the power of the High Court to punish for contempt of itself while it recognises that there are also other powers available to the High Court as a court of record. Some of the incidents of a court of record are that it has, the power to determine questions about its own jurisdiction and it has also the inherent power to punish for its contempt summarily by adopting its own procedure provided the procedure is fair. It will thus be seen that the contempt jurisdiction of the High Court is not confined only to award of punishment for contempt of itself, A three Judge Bench of Supreme Court in Sukhdev Singh v. Teja Singh, AIR 1954 SC 186 [LQ/SC/1953/107] : 1954 SCR 454 has held that the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all courts of record. It is thus evident that the power to initiate or institute a proceeding for contempt is also a power which the High Court exercises as its inherent power as a court of record and such power is also therefore envisaged in Article 215 as much as the power to punish for contempt of itself. In other words the power to institute a proceeding for contempt also seems to be within, and not outside, the sweep of Article 215.

(5) APART from Article 215 there is another omnibus provision engrafted in Article 215 of the Constitution which also may have something to do with the contempt jurisdiction of the High Court, Subject to the provisions of the Constitution and to the provisions of any law that may be made by a competent legislature, Article 225 protects the existing jurisdiction of the High Court as it possessed immediately before the commencement of the Constitution in relation to the administration of justice in the court. The contempt jurisdiction as exercised by the High Court immediately before the commencement of the Constitution also apparently seems to be covered by the ambit of the omnibus Article 225 in which case this jurisdiction will be subject to the provisions of any law that may be made by a competent legislature. A question may still arise whether the omnibus provision of Article 225 will apply to the contempt jurisdiction of the High Court so as to expose it to the possibility of being curtailed to any extent by ordinary legislation in future, when there is a specific provision dealing with the matter in Article 215. The constitutional guarantee regarding the powers of the High Court inherent in it as a court of record, as contained in Article 215, is rather absolute in term and is not subject to any ordinary legislation, irrespective of the question whether this constitutional guarantee comes by way of recognition or by way of pant of contempt jurisdiction. The Contempt of Courts Act. , 1971 which is a piece of post-Constitution legislation declares in its preamble the object of the enactment as to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto. A question is likely to crop up as to whether an ordinary legislation like the Contempt of Courts Act, 1971 can limit the powers of High Court in punishing contempts of court as it purports to do in derogation of the provisions of Article 21. 5 of the Constitution and whether such enactment or so much of it as may, if at all, purport to limit the jurisdiction of the High Court guaranteed by Article 215 is ultra vires. However these questions not having been raised before us by any of the parties we do not propose to embark upon any consideration of the same.

(6) INCIDENTALLY it may be pointed out hero that the High Courts power to punish for contempt of subordinate courts has not been specifically mentioned in Article 215 although the power to punish for contempt of itself has been mentioned. It appears that earlier there was some doubt as to whether the summary jurisdiction of the High Court also extended to punish for contempt of court subordinate to it and in order to resolve and clarify this doubt, the Contempt of Courts Act 1926 expressly gave that power to the High Court. That power also finds place in the Contempt of Courts Act, 1971. Therefore, in interpreting the provisions of the Contempt of Courts Act, 1971 it may be necessary to keep in view this facet of the powers of the High Court that it also exercises summary jurisdiction to punish for contempt of courts subordinate to it although Article 215 of the Constitution only specifically mentions of the High Courts power to punish for contempt of itself and does not expressly or specifically mention of its power to punish for contempt of subordinate courts. Any interpretation of section, 19 of the Contempt of Courts Act, 1971 to the effect that the exercise of High Courts jurisdiction to punish for contempt is confined only to cases where punishment is imposed in exercise of the power to punish for contempt (of itself) as expressly mentioned in Article 215 of the Constitution, may lead to the conclusion that no appeal lies where punishment is imposed by the High Court for contempt of a subordinate court and not for "contempt of itself because what Article 215 expressly says is contempt of itself and not contempt of subordinate courts.

(7) LET us now examine whether the impugned order is appealable under section 19 (1) (a) of the Act although no punishment for contempt has been imposed on anybody by the said order.

(8) SECTION 2 (a) of the Act defines that contempt of Court means Civil Contempt or Criminal Contempt. Section 2 (b) defines civil Contempt as willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. Criminal Contempt has been defined in section 2 (c) of the Act. Section 19 (1) of the Act which makes provisions for appeals runs thus :

"19 (1). An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt; (a) Where the order or decision is that of a single Judge to a Bench of not less than two Judges of the court ; (b) Where the order or decision is that of a Bench, to the Supreme Court ; provided that where the order ,or decision is that of the Court of the Judicial Commissioner in any union territory, such appeal shall lie to the Supreme Court. "

(9) IT has been argued on behalf of the respondents that under section 39, right of appeal is confined only to order or decision of High Court in the exercise of its jurisdiction to punish for contempt. Reference has also been made to section 12 of the Act, the portion of which as is relevant for our present purpose is re-produced below :

"12 (1). Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with he which may extend to two thousand rupees, or with both ; provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation-An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. (2) Notwithstanding anything contained in any law for the, time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. "

(10) IT has been argued on behalf of the respondents that the expression order or decision of High Court in the exercise of its jurisdiction to punish for contempt as used in section 19 (1) refers to the imposition of any of the punishments prescribed for contempt in section 12 and the exercise of the jurisdiction to punish for contempt is confined to the passing of an order of punishment under section 12 of the Act. The Court, it has been argued, does not exercise the jurisdiction to punish for contempt where no punishment is imposed and consequently any order which does not impose any punishment, although passed in a proceeding for contempt is not appealable under section 19 (1). In this connection, it may however be noticed that section 19 (1) does not say that an appeal lies only against punishment for contempt but uses rather a wider expression that an appeal lies from any order or decision passed in exercise of the jurisdiction to punish for contempt. The expression any order or decision in this connection purports to connote prima facie a variety of orders or decisions that may be passed by the court in exercise of its jurisdiction to punish for contempt. Regarding the import of the expression any order or decision it has been argued that the same relates only to any of the modes of punishment as referred to in section 12 and to nothing else. It has been further argued that the word order as referred to in section 19 connotes an order of fine or imprisonment that may be imposed by way of punishment under section 12 (1) whereas the word decision refers to reasoning that may be recorded by the court for considering in any particular case of civil contempt as to why a line will not meet the ends of justice and why a sentence of imprisonment is necessary as envisaged in section 12 (3). It has further been argued that the word or in the expression any order or decision is conjunctive and not disjunctive so that the expression any order or decision may be read as any order and decision so as to cover a case falling within the ambit of section 12 (3) where the court considers it necessary to impose punishment under section 12 (3) in a case of civil contempt. The interpretation thus sought to be given in respect of the expression any order or decision seems to be too artificial and is not warranted nor does it seem to be supported by any sound logic. That the expression order or decision in sub-section (1) of section 19 also includes something other than punishment will appear from a reading of sub-section (2) (a) of section 19 which provides that pending any appeal the appellate court may order that "the execution of the punishment or order appeal against be suspended". If no other order except punishment would have been appealable, there would have been no necessity of using the words or order in the expression quote the execution of the punishment or order appealed against as used in sub-section (2) (a) of section 19.

(11) IN this connection, we may also refer to the provisions of section 14 which lays down the procedure for dealing with contempt committed in the face of the court. Under the said section a person who is alleged or who appears to have been guilty of contempt committed in the presence or hearing of the court may be detained in custody pending the hearing on the charge of contempt brought against him. Pending determination of the charge the Court is however required to release the contemner on bail under sub-section (4) of section 14 if a bond for such sum of money as the court thinks sufficient is executed with or without sureties or the court may even discharge the contemner, pending the determination of the charge, on his executing a bond without sureties for his attendance, instead of taking bail from him. Now, if the scope of appeal under section 19 is restricted only to punishment imposed under section 12 and to nothing else, then a person who in a given case might have been refused bail under sub-section (4) of section 14 would have no right of appeal against such refusal of bail pending the determination of charge of contempt. The consequence and effect of detention in custody pending determination of charge committing contempt in the face of the court, is virtually the same as the punishment itself and may be even more onerous than a punishment by way of fine alone. To deprive the alleged contemner of the right of appeal even where bail is refused or a bond of excessive sum of money, in a hypothetical case, is demanded for his release on bail will, in our opinion, defeat to a large extent the very purpose, of making provision for appeal to give relief in appropriate cases. It is needless to mention that detention in custody under section 14 pending determination of the charge is not a punishment envisaged under section 12, because such detention is made under section 14 and not under section 12 and also because the pre-requisite of a punishment is the judicial determination of guilt on hearing whereas detention in custody pending determination of charge is a stage anterior to such judicial determination of the charge. There is therefore no scope for argument that detention in custody pending determination of charge is also a form of punishment under section 12 and is therefore appealable under section 19. If it is appealable, as indeed it is, it is so not because it is a punishment which it cannot be, but because it is the consequence of an order (of detention) passed in exercise of the jurisdiction to punish. An order of attachment of property of the contemner passed under section 17 where the court is satisfied that a person charged under section 15 is likely to abscond or to keep out of the way to avoid service of notice, is also not an order of punishment within the meaning of section 12, bun is fraught with severe consequence. To hold that section 19 is attracted only where any punishment in terms of section 12 is imposed is to deprive appeal against an order of attachment under section 17.

(12) WE thus find that there are sufficient and persuasive indications in the provisions of the Act itself for coming to the conclusion that the ends of justice may be defeated in a good number of cases if the words and expressions used in section 19 are not given their natural meanings and if words like or order occurring in the expression execution of the punishment or order appealed against are treated as redundant and surplusage contrary to the established principle of interpretation that no word or expression used by the legislature should be taken as redundant or surplusage. To give a restricted meaning to the provisions of section 19 as desired by the respondents will be tantamount to deleting certain words and expressions used by the legislature in section 19 which, we are afraid, cannot be done.

(13) HERE we may look to certain aspects of the law of contempt prevailing before the advent of the Contempt of Courts Act, 1971. In Saibal Kr, Gupta v. B. K. Sen, AIR 1959, Cal. 106 it was observed thus :

"it is well settled that the contempt of court may be of two kinds, civil contempt and criminal contempt. When an order made for the benefit of a party is disregarded or violated and the court enforces the order by punishing the delinquent for contempt, it is said that such proceeding is a form of execution and the contempt concerned is of a civil nature. When however, the contempt consists in offering an affront to the court or interfering or tending to interfere with the administration of justice, there is a public wrong and the contempt committed in such form is said to be a criminal contempt. "

In re. S. Govind Swaminathan AIR 1955, Mad. 121, it has been observed thus :"contempts have been classified into two categories which might broadly be designated civil and criminal contempts, the former comprising those cases where the power of the court is invoked and exercised to enforce obedience to orders of courts and the latter where the act of the contemner is calculated to interfere with the course of justice including libels or insults to judges and publications prejudicing the fair conduct of proceeding in court. In regard to civil contempts courts have held that being civil in their nature appeals lie from orders passed in such cases and the decision of this court reported in Venkatalingam v. Mrutyanjayadu (AIR 1943 Mad. 541 [LQ/MadHC/1943/64] ) is an instance in point. "

(14) CIVIL contempts have been regarded as remedial (Jekar v. State, AIR 1952 Nag 130 : 1952 Cr. LJ 749). A proceeding for civil contempt has been regarded as a form of execution and enforcement of the order alleged to have been violated to the detriment of a private party. In the circumstances, appeal at the instance of the aggrieved party, be he the contemner or the petitioner alleging contempt, against orders that may be passed in a proceeding for civil contempt is not only logical and consistent with the idea of the civil contempt being remedial in nature and a form of execution for enforcement of the courts order, for the benefit of a party but is also compatible with the tenor of treatment of such proceedings in the matter of appeals by courts in the history of judicial approach to the same. Since, however, no appeal was permissible as a matter of general right in case of criminal contempt the Sanyal Committee in its report dated the 28th February, 1963 to the Government of India recommended for making provisions for an appeal as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for contempt and in pursuance of such recommendation sub-section (1) of section 19 was introduced in the Contempt of Courts Act, 1971. It may be noticed that although the Act distinctly defines civil contempt and criminal contempt and also makes separate prod visions in section 15 as to how the Court can take cognizance of criminal contempt debarring a private party from making any motion for criminal contempt unless he has obtained the written consent of the Advocate-General in the matter while leaving the right of a private party to move the court for civil contempt unaffected and although the Act also makes specific provisions in section 14 for dealing with contempt committed in the face of the court, yet there is a common provision made in section 19 regarding appeal in connection with all sorts of contempt matter, be it civil, criminal or in the face of the court or contempt of a subordinate court. Therefore section 19 will have to be interpretated in a manner which serves the common purpose of appeal from whatever channel the subject matter of appeal may flow in. We must bear this in mind while interpreting section 19 the language of which is commonly applicable to all cases of appeals whether arising from civil contempt, criminal contempt or contempt in the face of the court or contempt of a sub-ordinate court. We may here reiterate in the above background that by attributing any unduly restricted meaning to the words and expressions used in section 19 we may usher in discriminatory results which are not warranted by the patent and defined sweep of the provisions of section 19. That in recent times the line of distinction is becoming thinner in the matter of approach towards civil contempt and criminal contempt has been discussed very impressively by a Division Bench of the Delhi High Court in Kuldip Rastogi v. Vishva Nath, AIR 1979 Delhi 202 and we reproduce a small portion thereof which runs thus :

"in a book on the law of Contempt by Borrie and Lowe (1973 ed.) there is an interesting and useful discussion between civil and criminal contempt at page 369. The conclusion at page 374 is that the law" of civil contempt has been assimilated with that of criminal contempt, and there now exists very few distinctions between the two. "

(15) THERE are also certain decisions of the apex court which demand attention in this connection. In Baradakanta v. Chief Justice Goti Krisnha Mishra (AIR 1974 SC 2255 [LQ/SC/1974/195] ) the Supreme Court dismissed an appeal filed under section 19 (1) of the Contempt of Courts Act, 1971. In that case Baradakanta moved the High Court of Orissa for initiating proceeding for contempt against the Chief Justice and other Judges in their personal capacity. The motion was heard by a Full Bench of three Judges and the Bench held that in its opinion there was no contempt of court committed by the Chief, Justice and the other Judges and in any event, by reason of section 15 sub-section (1) Baradakanta was not entitled to move the High Court for taking action in contempt since he had not obtained consent in writing of the Advocate-General and the Bench accordingly declined to take any action on his motion. Baradakanta then filed an appeal purportingly under section 19 (1) of the Contempt of Courts Act, 1971 before the Supreme Court. But after a critical analysis the Supreme Court has held at page-2260 that where the court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt and such a decision would not therefore fall within the opening words of section 19 sub-section (1) and no appeal would lie against it as of right under that provision. We thus find that in the said decision the Supreme Court held the appeal not maintainable because in its view the High Court in refusing to initiate proceeding for contempt prayed for by Baradakanta, did not do anything in exercise of its jurisdiction to punish for contempt. In arriving at the conclusion the Supreme Court also had to examine as to when the exercise of jurisdiction to punish for contempt commences. because it is only when an order or decision is passed by the High Court in exercise of its jurisdiction to punish for contempt the question of the appealability of such order or decision arises. The Supreme Court on analysing the relevant factors came to the clear and unambiguous conclusion of law at page-2260 that the exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. This is a pronouncement of law by the Supreme Court on the point as to when the exercise of the jurisdiction to punish for contempt commences which is the major, premise in regard to any question whether an appeal under section 19 is maintainable, the minor premise in the particular case before the Supreme Court being whether the impugned order refusing to initiate proceeding for contempt would come within the purview of the provisions of section 19. It may be mentioned here that the said decision of the Supreme Court is a decision of a three Judge Bench.

(16) IN Baradakanta v. Orissa High Court, AIR 1976 SC 1206 [LQ/SC/1975/348] , it has been observed that only those orders or decisions in which some point in decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt, are appealable under section 19, but the order under consideration in the said case was not such an order or decision, it being an interlocutory order pertaining purely to the procedure of the court and all that the order in question said was that all the points arising in the case, including the one of maintainability of the proceeding would be heard together. So this decision of the Supreme Court like its earlier decision in 1974 Supreme Court 2255 (supra) does not say that except punishment no other order or decision is appealable under section 19 of the Contempt of Courts Act, 1971. On the other hand, it formulates the proposition that only those orders or decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish for contempt are appealable. The distinction between the two Baradakanta cases, it may be noticed, is that in the former one, namely, the one reported in AIR 1974, the appeal was preferred against an order refusing to initiate contempt proceeding while in the later case, namely, the case reported in AIR 1976, the appeal was preferred against an order passed subsequent to the initiation of the contempt proceeding. In the former case the appeal was held not maintainable on the ground that the exercise of jurisdiction to punish for contempt commences with the initiation of the contempt proceeding and not earlier and in the later case an order which was passed after the initiation of the contempt proceeding but in which no point was decided or tiding was given in the exercise of such jurisdiction was found not appealable, the impugned order in that case being an interlocutory order pertaining purely to the procedure of the Court.

(17) IN Purshatam Dass v. B. B. Dhillon AIR 1978 SC 1014 [LQ/SC/1978/110] , it has been held that mere initiation of a proceeding for contempt by issuance of the notice under section 17 on prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question and hence an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right under section 19. It appears, in that case, after the contempt proceeding was initiated under section 15 and a notice was issued to the contemner under section 17 to show-cause as to why he should not be punished under section 15, the contemner preferred an appeal under section 19 (1) and in that connection the Supreme Court held that mere initiation of a proceeding for contempt by issuance of notice under section 17 does not decide any question and therefore cannot be appealed against under section 19: In that connection, the Supreme Court also observed that it may be a different matter if the order does decide some dispute raised before it by the contemner asking it to drop the proceeding on one ground or the other, but unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it. by the parties, affecting their rights the mere order issuing the notice is not appealable. The said decision in AIR 1978 SC 1014 [LQ/SC/1978/110] laying down that an order initiating proceeding for contempt by a notice issued under section 17 of the Act is not appealable under section 19 was endorsed again by the Supreme Court in Union of India v. Mario Cabrale Sa, AIR 1982 SC 691 [LQ/SC/1981/455]

(18) THE position that emerges in the matter in view of the different decisions of the Supreme Court upto 1982 may be summarised thus :

(1) The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt whether suo motu or on a motion or a reference and therefore where the court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt and is therefore not appealable under section 19 (1) of the Act (AIR 1974 SC 2255 [LQ/SC/1974/195] ).

(2) An order saying that all points arising, in the case, including the one of maintainability of the proceedings would be heard together, although passed obviously after the initiation of the contempt proceeding, is not appealable under section 19 of the Act inasmuch as the same is not an order or decision in which some point is decided or finding is given in the exercise of jurisdiction to punish for contempt (AIR 1976 SC 1206 [LQ/SC/1975/348] ).

(3) An order merely initiating a proceeding for contempt by issuing notice under section 17 of the Act is not appealable under section 19 as it does not decide anything against the alleged contemner (AIR 1978 SC 1014 [LQ/SC/1978/110] and AIR 1982 SC 691 [LQ/SC/1981/455] ).

(4) It may however be a different matter (and an appeal under section 19 may lie) if the order does decide some disputes raised before the High Court by the contemner asking it to drop the proceeding on one ground or the other, or the order decides some bone of contention raised before the High Court affecting the right of the party aggrieved. A final order surely will be appealable (AIR 1978 SC 1014 [LQ/SC/1978/110] ).

(19) IF the principles as enunciated by the apex court in different decisions upto 1982, are synthesised the position in law comes to this that an order refusing to initiate a contempt proceeding is not appealable under section 19 of the Act inasmuch as an appeal under said section lies only against an order or decision passed in exercise of the jurisdiction to punish for contempt but as the exercise of such jurisdiction commences with the initiation of the proceeding for contempt, an order refusing to initiate a proceeding for contempt is not an order in exercise of such jurisdiction. Again an order merely initiating a proceeding for contempt, although marks the commencement of the exercise of the jurisdiction to punish for contempt, is however not appealable under section 19 as the same does not decide anything against the alleged contemner and no appeal is maintainable under the said section unless the order appealed against is an order or decision in which some point is decided or finding is given in exercise of the jurisdiction to punish for contempt, for example, where some dispute is raised by the contemner asking the court to drop the proceeding on one ground or the other and the court decides the dispute by its impugned order. A final order will be surely appealable but not an order saying that all points raised in the proceeding will be heard together and not piecemeal.

(20) THEN came the 1988 decision of, the Supreme Court in D. N. Taneja v. Bhajan Ld, (1988) 3 SCC 26 [LQ/SC/1988/278] . In that case on an application a contempt proceeding was initiated and a rule nisi was issued, but on a contested hearing the High Court dismissed the application and discharged the rule. Against such dismissal of the application, the Supreme Court was moved in appeal under section 19. But the Supreme Court held that the appeal was not maintainable under section 19 of the Act. The view taken by the Supreme Court in that case is that the High Court derives its jurisdiction to punish for contempt from Article, 215 of the Constitution which, provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself and the High Court can exercise its jurisdiction only by punishing for contempt, but when the High Court acquits the contemnor, it does not exercise its jurisdiction for contempt. (Emphasis pointed out here). The Supreme Court observed thus :"when the High Court does not impose any punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt, The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution". It is further observed by the Supreme Court in that case that so long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.

(21) IT will thus be seen that the said 1988 decision of the Supreme Court in effect purports to knock out the courts 1974 decision (supra) on the question as to at what point of time the exercise of the High Courts jurisdiction to punish for contempt comes into play while dealing with a contempt matter. According to the 1974 decision the exercise of such jurisdiction commences with the initiation of the proceeding for contempt, but the 1988 decision repudiates the same in effect by holding that so long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt and the High Court can exercise such jurisdiction only by punishing for contempt. Patently the 1988 decision also does not lend support to the proposition suggested in the 1978 decision (supra) that if an order is passed after the initiation of the proceeding for contempt and the order decides some disputes raised before the High Court by the contemner asking it to drop the proceeding on one ground or the other, the same will be appealable under section 19 of the Act.

(22) IT may however be mentioned here that the 1978 decision of the Supreme Court is a decision of a two Judge Bench while the 1988 decision is a decision of a three Judge Bench of the same court. Consequently in the case of a conflict between the said two decisions, the 1988 decision will prevail being a decision of the larger Bench and to that extent there is no difficulty in preferring the latter decision provided the said decision is found otherwise applicable to govern the field. The position however is distinctly different so far as 1974 decision is concerned because that decision is also a decision of a three Judge Bench like the 1988 decision. In this connection, we may refer to the decision of a five Judge Bench of the Supreme Court in Union of lndia v. Raghubir Singh, AIR 1989 SC 1933 [LQ/SC/1989/332] where it has been observed thus :,.

"it is in order to guard against the possibility of inconsistent decisions on points of law by different division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point".

In that case the Supreme Court further observed :"we are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Bench or a constitution Bench of the Court".

(23) THAT being so the pronouncement of law by the three Judge Bench in AIR 1974 SC 2255 [LQ/SC/1974/195] was binding on the three Judge Bench deciding the case reported in (1988) 3 SCC 26 [LQ/SC/1988/278] . In the said 1974 decision the court was required to answer the specific question : "does the court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt" An answer to that specific question being obviously dependent upon the answer to the generic question, as to when does the exercise of the Courts jurisdiction to punish for con tempt comes into play, the court on analysis first decided that question and propounded the law that it is only when the court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt and the exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. On the basis of that answer to the generic question laying down the major premise, the court answered the specific question involved in that case. In the 1988 decision also the answer to the specific question as to whether an order dismissing an application for contempt passed on hearing after initiation of the proceeding for contempt was an order passed in exercise of the Courts jurisdiction to punish for contempt, depended on the answer to the same generic question as to when does the exercise of the Courts jurisdiction to punish for contempt comes into play. This generic question was answered in the 1988 decision by holding that so long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt, which proposition however seems to be inconsistent with the proposition of law laid down by the court in its earlier 1974 decision that the exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt. In view of this inconsistency between the said two decisions of the Supreme Court, the question that crops up is which of these, two decisions is to be followed by the, High Court. Since each of the two decisions was rendered by three Judge Bench and since in view of the principle reiterated by the Supreme Court in Union of India v. Raghubir Singh (supra) that a pronouncement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, it necessarily follows that the later Division Bench of the same number of Judges was not free to formulate any, principle of law inconsistent with the decision of an earlier Division Bench of same Judge strength Without referring the matter to any larger Bench and that being so the High Court is bound to follow the earlier decision of the Supreme Court in preference to the later decision of that court where the Judge strength of both the Benches rendering such decisions is the same, as is the case here. Consequently for finding an answer to the question as to when the exercise of the High Courts jurisdiction to punish for contempt comes into play we are bound to follow the principle of law laid down by the Supreme Court in Baradakanta v. Chief Justice, AIR 1974 SC 2255 [LQ/SC/1974/195] in preference to that laid down in Taneja v. Bhojan Lal (1988) 3 SCC 26 [LQ/SC/1988/278] .

(24) IF we were to follow the decision in Taneja we are required to dismiss the present appeal under section 19 of the Act in limine simply because the impugned order is not an order imposing punishment for contempt and therefore cannot be said to have been passed in exercise of the High Courts jurisdiction to punish for contempt had already commenced with the initiation of the proceeding for contempt and therefore the present appeal against the impugned order passed after such commencement of exercise of jurisdiction is not liable to be dismissed in limine on the ground that no order not being an order of punishment for contempt can be said to have been passed in exercise of the jurisdiction or power to punish for contempt. Following the 1974 decision in Baradakanta once we find, as we must, that the present appeal is not liable to be dismissed in limine for its not being an order of punishment for contempt, our next task will be to find out whether the impugned order passed in a proceeding for contempt after its initiation decides some bone of contention raised before the High Court affecting the right of the party aggrieved or is a final order. It may be noted here that in the decision of Taneja the appeal was dismissed not on any such ground that the impugned order did not decide any bone of contention or was not a final order but on entirely a different ground which we have already discussed. The ratio of the decision in Taneja therefore is not applicable in deciding whether the present appeal is maintainable. The impugned order is indeed a final order disposing of the contempt proceeding with direction to purge the contempt. The order also decides the all-important bone of contention raised before the Court and holds the appellant guilty of contempt. In the circumstances, in our opinion, the appeal against the impugned order under section 19 of the Act is maintainable. Our opinion in this regard also receives direct support from the decision reported in Purushottam Dass v. B. S. Dhillon, AIR 1978 SC 1014 [LQ/SC/1978/110] (supra) as Cell as from a recent decision of a Division Bench of this Court in Ramendranath v. Gouri Shankar, 1991 (l) CLJ 125.

(25) OUR attention has been drawn on behalf of the respondents to paragraph 8 of the decision in AIR 1974 SC 2255 (supra). It has been submitted on behalf of the respondents that the said paragraph 8 clearly shows that in the 1974 decision the Supreme Court did not decide the question whether an appeal under section 19 (1) is confined only to a case where the High Court after initiating a proceeding for contempt finds the alleged contemner guilty and punishes him for contempt or it extends also to a case where the contemner is found not guilty and exonerated or the court declines to punish him although. found guilty. It has been argued that the Supreme Court in its 1974 decision rather kept that question open which question was decided later in the 1988 decision by holding that an appeal under section 19 is confined only to a case where punishment is imposed for contempt and that being so there is no conflict between the two decisions. This argument though attractive at the first blush however turns fragile on analysis. It is true that the point which was left open in the 1974 decision was decided in the 1988 decision, but a closer study will reveal that the said decision was arrived at by applying a ratio which was not consistent with the ratio of the 1974 decision. The ratio applied in th1988 decision was that the court exercises its jurisdiction to punish for contempt only when it imposes punishment for contempt and such jurisdiction is not exercised when no punishment is imposed, which is inconsistent with the ratio of the 1974 decision that the exercise of such jurisdiction commences with the initiation of the proceeding for contempt. That being so, this court is bound to follow the ratio of the 1974 decision in preference to the ratio of the 1988 decision as already discussed and in that case we must hold for reasons elaborately discussed earlier that the present appeal under section 19 of the Contempt of Courts Act, 1971 is not barred.

(26) NOW coming to the facts of the present case, we find that by his order dated 11th December, 1990 passed in Civil Order No. 4076 of 1990, the learned Single Judge granted an interim order staying all further proceedings in respect of title Execution Case No. 5 of 1980 of the First Court of Additional Munsif at Alipore. The said execution case was started by the decree-holder for recovery of possession of the property in respect of which the decree was obtained. It is the case of the petitioner Judgement-debtor that at about 11-00 a. m. on the 11th December, 1990 the learned Single Judge granted the said order of interim stay and thereafter on that very day the judgement-debtors lawyer addressed a letter to him informing about the stay order passed by the learned Judge and sent the letter through the son of the judgement-debtor. It is the further case of the judgement debtor, Ashoke Arora that at about 12-20 p. m. on that very day the bailiff of the court along with the decree-holder, Ashoke Kumar Rai came to the concerned premises and wanted to take delivery of possession of the property in execution of the writ of delivery of possession issued by the executing court. It is alleged by the judgement-debtor that he then showed the letter of his advocate to the said decree-holder and the bailiff for apprising them of the stay order granted by this court, but they branded the letter as false and refused to comply with the same and thereafter the judgement-debtor rushed to Alipore Court (executing court) and there served the copy of an application for stay upon the advocate of the decree-holder along with a copy of the advocates letter regarding the stay granted by the High Court and then the said application was moved before the executing court after recess and the executing court, after hearing both sides, passed an order staying all further proceeding of the execution case, but inspite of that the decree-holder and the bailiff, with full knowledge of the stay order, forcibly dispossessed the judgement-debtor from the concerned flat and that is why the judgement-debtor filed the application for contempt which was disposed of by the learned Single Judge by holding the decree-holder, Ashoke Kumar Rai guilty of contempt and by requiring him to purge the contempt by redelivery of possession of the concerned property to the judgement-debtor by a certain date. Thereafter the decree-holder filed an application before the learned Single Judge for recalling the said order for re-delivery of possession which was also rejected by the learned Judge by his order dated 21st June, 1991 passed after hearing both sides. The decree-holder-appellant has preferred the present appeal against both the said orders.

(27) THE main question of fact which is now required to be decided is whether the decree holder took possession of the property in execution of the decree inspite of knowledge of the stay order granted by the learned Judge. It is the case of the decree-holder that the possession of the concerned flat was taken in execution of the decree at about 12 noon on the 11th December, 1990 and they had no knowledge of the stay order granted by the Honble Court till the service of the copy of the application for stay along with the copy of the Advocates letter upon their Advocate at 12-40 pm. before which possession had been taken. The bailiffs report shows that the bailiff went to the spot at about 12 noon and apprised the judgement-debtor of the writ of delivery of possession and then the judgement-debtor asked for a little time and collected some people and with their help removed his belongings from the concerned flat and took away the same to his own room down stairs and the decree-holder was given vacant possession of the concerned flat in execution of the decree. The learned Judge, however, could not accept the bailiffs report as faithful regarding the time of delivery of possession on two grounds. The first ground mentioned by the learned Judge is that when the judgement-debtor had already-moved this Court and obtained the order of stay, it is very difficult to believe that he would be disposed to delivery possession amicably, as reported by the bailiff, without offering resistance and without showing his, lawyers letter to justify his resistance, The second ground considered by the learned Judge is that if really the whole show were over at or about 12 noon it would have been submitted on behalf of the decree-holder before the executing court that there was nothing to stay the execution since possession had already been obtained in execution of the writ of delivery of possession issued by the Court. It, however, appears that the learned Advocate for the decree-holder noted his objection by endorsing objected to on the copy of the application for stay filed before the executing court on 1 l- 12-90. He also noted the time as 12-40 p. m. It is, of course, true that the learned Advocate for the decree holder did not specifically mention in writing that possession had already been taken, but then there is also nothing to show that the learned Advocate had any knowledge at that time that possession had already been delivered.

(28) OUR attention has been drawn on behalf of the judgement-debtor to the affidavit-in-opposition filed by the decree-holder before the learned Single Judge wherein it has been stated in paragraph 4 (q) that after delivery of possession Mr. Sachindra Nath Halder, the learned Advocate for the decree-holder attended Alipore Court and the copy of the application for recalling the issue of writ of delivery of possession and for stay of all further proceedings was served upon Mr. Halder, the learned Advocate who received the same with endorsement objected to at 12-40 p. m. on the 11th December, 1990. It has been submitted on behalf of the judgement-debtor that the said averments indicate that Mr. Sachindra Nath Halder, the Advocate for the decree-holder was present at the spot when the decree-holder and the bailiff went to take possession and after delivery of possession Mr. Halder attended Court and therefore he must have had personal knowledge of such delivery of possession. We are, however, unable to accept the submission, particularly when it is not even the case of the judgement-debtor that the Advocate of the decree-holder also accompanied the decree-holder and the bailiff to the spot when they went to take delivery of possession and when he had allegedly shown them his Advocates letter stating that the stay order had already been granted by the High Court. That being so, no presumption is warranted that the learned Advocate of the decree-holder had any knowledge at 12-40 p. m. that delivery of possession had already been given at about 12-00 p. m. The order of the learned executing court shows that the further proceeding of the execution case was stayed in view of the Advocates letter informing that the High Court had granted stay. The said order shows that the learned executing court heard both sides, but actually what submission was made before the court has not been recorded. Even if it had been brought to the notice of the executing court that the delivery of possession had already been given yet that court would have no option but to pass an order for stay of all further proceedings of the execution case (at whenever stage it might have been) as done by the Court in view of the order of the High court.

(29) IN this connection, it may also be mentioned that the application for stay as filed before the executing court on 11. 12. 90 by the judgement-debtor also did not contain any averment that the bailiff and the decree holder had, earlier on that day, gone to the spot for executing the writ for delivery of possession or that they had been shown the Advocates letter by the judgement-debtor there. On the other hand, it is stated in para 2 of the said application that in view of the order passed by the Honble High Court the writ for recovery of possession, if issued, is required to be recalled at once. The words if issued used in this connection, are rather significant and purport to project an impression that the judgement-debtor was not yet aware whether any such writ had already been issued which is patently inconsistent with the allegation of the judgment-debtor that he had rushed to the executing court for moving the petition for stay after the bailiff and the decree holder went to the spot and asked him to vacate the property on apprising him of the writ for the delivery of possession. Therefore, if it were expected that the decree-holders Advocate should have endorsed on the copy of the application for stay that the delivery of possession had already been given, had that been a fact, it was also equally expected that the judgement-debtor would have mentioned it in his application for stay that he had earlier shown the Advocates letter to the bailiff and the decree-holder, had that been a fact, which was, however, conspicuously missing in the application for stay filed before the executing court.

(30) AS regards, the ground relied upon by the learned Single Judge that the decree-holder was not expected to give delivery of possession amicably when he had already obtained a stay order from the High Court, it may be stated that it was actually not a case of amicable delivery of possession. The bailiff went there with a writ of delivery of possession issued by the executing court and apprised the judgement-debtor of the same and required him to comply with the same by vacating the property. For a law-abiding person it is not unlikely to allow the Courts bailiff to execute the writ without offering any resistance, particularly when there are circumstances from which it appears doubtful whether the judgement-debtor himself had any knowledge at the time when the bailiff went there to execute the decree that any order for stay had already been passed by the High Court. Even according to the case of the judgement-debtor the order of stay was passed by the High Court not before 11-00 a. m. It also appears that the judgment-debtor himself was not present at the High Court when that order was passed by the High Court after 11-00 a. m. His son was present. Now after the order was passed by the High Court the judgement-debtors lawyer wrote a letter about the stay order granted by the High Court and made over the same to the son of the judgement-debtor. This must have consumed some time. Thereafter some time must have also elapsed before the son could travel from the High Court to the spot, assuming that he had gone to the spot first and it, is not unlikely that before he reached the spot delivery of possession had been given at about 12 noon in which case it should not have been in the knowledge of the judgement-debtor that any stay order had been really granted by the High Court. It might also be that the son first went to the Alipore Court from the High Court with the Advocates letter and contacted his lawyer for making an application for stay before the executing court and then went to his house, to apprise his father about the stay order granted by the High Court and found that possession had already been delivered in the meantime and then the decree-holder came to the Alipore Court. At any rate we however cannot get rid of an imperative aspect of the judgement-debtors case that a copy of the application for stay along with a copy of the Advocates letter was served on the learned Advocate of the decree-holder at Alipore Court at 12-40 p. m. within 20 minutes after the bailiff and the decree-holder went to the spot for execution of the writ at 12-20 p. m. as alleged by the judgement-debtor. The distance between the Alipore Court and the place of execution of decree is stated to be about 4 kilometres. It is the judgement debtors case that when the bailiff and the decree-holder went to the spot at 12-20 p. m. he apprised them of the stay order granted by the High Court and also showed them the Advocates letter but they branded the letter as false and the bailiff also made certain statements and insisted upon the decree holder to obtain an order of stay from the executing court and the judgement-debtor then along with the decree-holder and the bailiff went to Alipore Court. It is very difficult to imagine how it was possible for all these events to take place within a short span of 20 minutes. Then again after reaching the Alipore Court the judgement-debtor has to find out his lawyer and show him the Advocates letter about the stay order granted by the High Court and then a petition for stay has to be drafted and the copy of the Advocates letter also has to be prepared and then the Advocate of the decree-holder has to be searched out and the copies have to be served on him. It is physically impossible for all these incidents to happen within a short span of 20 minutes. That being so, the judgement-debtors allegation that the bailiff and the decree-holder went to him at 12-20 p. m. seems to be wholly unacceptable from the point of view of sheer physical possibility. In the circumstances, the judgement-debtors case looses credibility and the decree-holders case supported by the bailiffs report rather seems acceptable.

(31) THERE are also other glaring inconsistencies in the case of the judgement-debtor. According to the case of the judgement-debtor as pleaded in the application for contempt the judgement-debtor found after the stay order was passed by the executing court that the decree-holder and the bailiff disappeared from the, precincts of the court and on his return to his house the judgement-debtor found that the padlocks were broken by the contemners and the latches were removed and possession had already been delivered with the assistance of a local club, professional hoodlums and a batch of volatile women. The application for contempt thus shows that on obtaining the stay order from the executing court after recess i. e. subsequent to 2-00 p. m. the judgement-debtor went to his house and found that possession had already been delivered during his absence. In his affidavit-in-reply filed by the judgement-debtor he however imports a totally different story. In paragraph 3 of the affidavit-in-reply the judgement-debtor states that from the executing court he rushed to the police station and lodged a diary and thereafter returned to the concerned premises being accompanied by, two constables at about 2-50 p. m. This fact subsequently alleged in the affidavit-in-reply that from the executing court he first went to the police station and lodged a diary and then came to the concerned premises at 2-50 p. m. is however not mentioned in his original application for contempt. The original application for contempt purports to show that from the executing court he straight went to the concerned premises and found that possession had already been delivered. Now in the affidavit-in-reply he states that he reached the concerned premises at 2-50 p. m. via the police station. Therefore going by the averment made in the original application for contempt possession must have been delivered before 2-50 p. m. during the absence of the judgement-debtor. But in the affidavit-in-reply a totally new story is imported and in paragraph 4 thereof it is stated that the contemners took forcible possession at about 5-30 p. m. on 11th December, 1990. We thus find that the judgement-debtor is coming out with different versions at different times as to when the delivery of possession was given. That being the state of affairs we are unable to hold that the delivery of possession was not made at the time as mentioned in the report of the bailiff. In other words, the judgement-debtor, we find, has signally failed to make out any consistent case capable of discrediting the bailiffs report.

(32) IN the affidavit-in-reply, it is stated by the judgement debtor that bailiff was taken to the police station by the constables and there the bailiff lodged a diary at about 3-30 p. m. alleging that he was resisted to take delivery of possession. In his application for recalling the order to re-deliver the possession as passed by the learned Judge, the decree-holder challenged the said averment of the judgement-debtor made in the affidavit-in-reply to the effect that the bailiff lodged the diary at the police station stating that he was being resisted by the judgement-debtor. On the other hand, in the said application the decree-holder has re-produced the text of the said diary which shows that the bailiff reported therein that he had given possession and nothing is mentioned therein about any resistance. The judgement-debtor has not produced the copy of the said G. D. entry to show that the same supports his case or his allegation. Having regard to the facts, circumstances and materials appearing in the record, we are clearly of the opinion that the judgement-debtor has totally failed to establish any consistent case to discredit the bailiffs report or to show that the delivery of possession was taken with knowledge of the stay order granted by the High Court. It is the established principle of law that in contempt proceedings, be it civil or criminal, the guilt of the alleged contemner must be proved beyond reasonable doubt (see Capt. Dushyant Somal v. Sushma (1981) 2 SCC 277 [LQ/SC/1981/88] ; Monoharlal v. Prem Shankar, AIR 1960 All. 231 [LQ/AllHC/1959/185] ). In the present case it not having been established beyond reasonable doubt that the alleged contemner had knowledge of the High Courts order of stay before the delivery of possession he cannot be held guilty of contempt of court. In the result we allow the appeal and set aside the impugned orders. Having regard to the facts and circumstances, we direct the parties to bear their own costs. M. G. Mukherji, J. , I agree. Appeal allowed.