1936 (1) TMI 18 - Commissioner - Companies Law

Summary

Issues:
Execution of decree, objection to attachment, jurisdiction of executing court, right to bring a suit under Order XXI, rule 63, Companies Act provisions, summary remedy provided by Legislature, objector's rights in execution proceedings.

Analysis:
The judgment involves a dispute arising from the execution of a decree held by a bank against two individuals. The wives of the judgment debtors objected to the attachment of certain properties, claiming ownership. The executing court rejected their objections, stating that as the bank was in liquidation, the objectors should have obtained leave from the Liquidation Court before objecting. The objectors sought revision of this decision. The respondent bank argued against the exercise of revision, stating that the objectors had the right to bring a suit under Order XXI, rule 63, of the Civil Procedure Code.

The court considered the objection raised by the respondent bank regarding the exercise of revision when another remedy was available to the objectors. It was noted that while the objectors could have brought a suit under Order XXI, rule 63, the specific order in question did not fall under rules 60, 61, or 62 of Order XXI. The court agreed with the petitioners that the order did not give rise to a right to bring a suit under rule 63. Therefore, the court rejected the preliminary objection raised by the respondent bank.

On the merits of the case, the respondent bank argued that objections in execution proceedings were separate legal proceedings requiring leave of the court under the Companies Act. The objectors contended that they had the right to defend their interests in the execution proceedings initiated by the decree-holder. The court held that it was unfair for a company in liquidation to use the Companies Act provisions to prevent individuals from defending their property in execution proceedings. The court found that the executing court had the jurisdiction to consider the objections raised by the petitioners and had erred in refusing to exercise that jurisdiction. Consequently, the court set aside the executing court's order and directed it to hear the objectors' objections in accordance with the relevant rules of the Civil Procedure Code.

In conclusion, the court ruled in favor of the objectors, granting them costs in the revision and directing the executing court to reconsider the objections raised by the wives of the judgment debtors in accordance with the applicable provisions of the Civil Procedure Code.