TMI Blog1951 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... nsent decree to the deft. 2. The consent decree is dated the 23-11-1930. The terms of the consent decree are set out in annexure B to the petition. There are respective undertakings of the pltfs. the deft, in the various clauses of the terms of settlement; for instance, Clause 2 of the terms of settlement contains undertakings given both by the pltf. as well as by the deft. Similarly, Clause 5 (wrongly numbered as 5 in the terms of settlement) embodies the undertaking by the deft. 3. With regard to the first question about pillars, it is admitted that the pltfs. have not built them according to the sanctioned plan attached to the decree have thus failed to carry out the terms of the consent decree. The contention is therefore esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the sanctioned plan to which the parties agreed by the terms of settlement. I am not concerned here with the reasonableness of what they have done but having regard to these reasons I am prepared to give the pltfs. another chance thus accept the undertaking given today. Mr. Deb appearing for the deft, is prepared to accept such undertaking as he says his client wants the pillars to be constructed in the manner laid down in the sanctioned plan attached to the consent decree. 6. With regard to the opening of a window in the south-eastern room which is the alternative accommodation given to the deft, after he vacates the room in which he is in occupation now, it is said that there was a window at the time but has since been closed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n affidavit of the previous tenant Paresh Nath Sil, who left this house is no longer a tenant of the pltfs. saying in support of the pltfs. that the window was closed about 8 months ago. The engineers on either side have sworn affidavits to support their respective client's case. Mr. Jagannath Ganguly, in support of the appct. makes the case that from the construction it appears that the window has been closed recently, but of course he does not give, or venture to give, any approximate date he does not say what he means by the word 'recently.' Equally, on the other side, another professional gentleman by the name of Mr. K. C. Pal, an engineer, chooses to say that there possibly could not be any window. Be that as it may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party, the deft, in this case, at the same time keeping the other undertakings of the pltf. to the Ct. intact, would be, in my view, unjustified because it will irreparably prejudice the pltfs. It is conceivable that if the deft. had not given that undertaking to Ct. the pltf. would never have agreed to the terms of settlement as embodied in the consent decree. I am, therefore, not willing to upset these undertakings thus destroy the very basis of this consent decree. The law, as far as I know, is also to the same effect. Jessel M. R. in Hullins v. Howell (1879) 11 Ch. D. 763 at p. 766 refd. to this question the learned Master of the Rolls comes to this conclusion that interlocutory consent orders containing any undertaking could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to pardon contempt if need be. 11. Mr. Deb apprehends that as there is no window the room would not be usable if his client cannot get into that room, then he might be proceeded in contempt by the pltfs. at a later stage. If that is so, then that will be the proper stage for him to raise this question either for relief or of condonation on proper grounds. I do not therefore think I can make any order or I should make any order in respect of the window at this stage. 12. The order, therefore, will be recording of the pltfs. undertaking to the Ct. to put up the pillars as shown in the sanctioned plan attached to the decree the pltfs. will pay the cost of this appln. to the appct. The key of the said southeasterly portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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