1980 (11) TMI 133 - HC - Companies Law

Issues Involved:
1. Transfer of Decree and Compliance with Order 21, Rule 16 of CPC.
2. Validity and Continuation of Execution Proceedings.
3. Rectification of Amalgamation Order and its Retrospective Effect.
4. Maintainability of Execution Petition without Affidavit of Competency.
5. Nullity of Decree Post-Amalgamation.
6. Execution Against Sub-Tenant.
7. Direction for Police Help in Execution.

Issue-Wise Detailed Analysis:

1. Transfer of Decree and Compliance with Order 21, Rule 16 of CPC:
The appellants contended that the respondent, Metal Distributors Ltd., was not entitled to execute the decree for possession as they had not complied with the provisions of Order 21, Rule 16 of the CPC. They argued that the right to execute a decree is a statutory right and only the decree-holder can execute it until the transferee's name is substituted in place of the decree-holder in the tabular statement. The court held that there was no transfer of the decree by assignment or operation of law to the respondent, and thus, Order 21, Rule 16 was not applicable. The respondent, having acquired title to the disputed property, could continue the pending execution against the appellants under Section 146 of the CPC, which allows proceedings to be taken by or against any person claiming under the original decree-holder.

2. Validity and Continuation of Execution Proceedings:
The appellants argued that no execution application was pending when S.C. Deb J. granted permission to the respondent to proceed with the execution. The court rejected this contention, stating that the appeal court had set aside the order of S.C. Ghosh J. but had not dismissed the execution application. The order granting leave to the respondent implied an order for execution. The court also dismissed the argument that the order was tentative and did not recognize the respondent's right to continue the execution proceedings.

3. Rectification of Amalgamation Order and its Retrospective Effect:
The appellants contended that the rectification of the order of amalgamation to include the disputed property was illegal and without jurisdiction. They argued that the property had vested in the State of West Bengal by escheat. The court held that the scheme of amalgamation provided for the transfer of all properties of the transferor-company to the transferee-company. The expression "and all other property" in the order was wide enough to include the disputed property, even though it was not mentioned in the schedule. The rectification of the order was by way of clarification and took effect from the date the original order was passed.

4. Maintainability of Execution Petition without Affidavit of Competency:
The appellants challenged the maintainability of the execution petition on the ground that it was not supported by an affidavit of competency. The court held that there is no rule requiring an affidavit of competency when a company is the decree-holder. Order 29, Rule 1 of the CPC allows any principal officer of the corporation to sign and verify pleadings. The court found that an affidavit of competency had been filed by a director of the original decree-holder, Binani Properties (P.) Ltd., and thus, the execution petition was maintainable.

5. Nullity of Decree Post-Amalgamation:
The appellants argued that the decree became a nullity after the amalgamation of the decree-holder with the respondent, as the reasonable requirement for building and rebuilding could not be claimed by the transferee-company. The court rejected this contention, stating that the decree was also on the ground of default in payment of rent and that the executing court cannot go behind the decree. The decree was valid and executable by the transferee-company.

6. Execution Against Sub-Tenant:
The appellants contended that the decree could not be executed against the sub-tenant, P. Mullick & Co., as it was passed only on the ground of reasonable requirement for building and rebuilding. The court held that the decree was passed before the amendment of Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956, and thus, it satisfied the requirement of both the amended and unamended clause (f). The decree was executable against P. Mullick & Co.

7. Direction for Police Help in Execution:
The appellants argued that the direction for police help was unjustified without complying with Order 21, Rule 97 of the CPC. The court noted that the bailiff had been resisted when attempting to execute the writ of delivery of possession and that police help had been previously directed by Sabyasachi Mukharji J. The court found the direction for police help reasonable and affirmed it.

Conclusion:
The court affirmed the judgment and order of Salil Kumar Roy Chowdhury J., dismissing the appeals. The respondent was entitled to amend the tabular statement by substituting its name for the original decree-holder. There was no order for costs in any of the appeals.

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