9911796707
TMI Blog1930 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ember, 1927. The appellant had obtained a decree against the company in 1924, and in 1928, on his application, certain immovable properties belonging to the company were attached. On the 17th November, 1928, the liquidators filed an application before the Additional Subordinate Judge of Asansol for stay of execution of the decree and for vacating the order of attachment and the sale proclamation that bad been published in connection therewith. The learned Subordinate Judge, by his order dated the 15th December, 1922, dismissed the execution proceedings. The decree-holder appeals to this Court and it is contended on his behalf that the order of the Court below is without jurisdiction. The learned Subordinate Judge is of opinion that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the sub-head "voluntary winding up." Section 207, clause (1), under that head, lays down that the assets of the company shall be applied in satisfaction of its liabilities part passu. The learned Subordinate Judge thinks that because of the statutory provision that the assets of the company in voluntary liquidation must be distributed proportionately, he has no power to continue the execution in the ordinary way. The question is not exactly what the Court can do when the company has gone into voluntary liquidation but the question is as to whether the learned Subordinate Judge has the power to make the order he has made. "The Court has been defined in section 2(3) of the Act as meaning the Court having jurisdiction under the Act. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have the execution stayed by the Subordinate Judge who refused to stay execution. The District Judge, on appeal, ordered stay of execution. On second appeal to the High Court, two of the learned Judges of the Allahabad High Court, Piggott and Walsh, JJ., who, it is presumed, were familiar with the procedure relating to company law, held that. "The District Judge had no jurisdiction to stay execution and that section 207 of the Indian Companies Act is no bar by itself to the progress of execution unless and until an order has been obtained from a Court having jurisdiction under the Companies Act, either for winding up or for stay of proceedings." A similar view was expressed in Oudh in National Bank of Upper India, Ltd. v. Sheo Mang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use, in a case of voluntary liquidation, there is no provision in the Act similar to sections 171 and 232 relating to liquidation by the Court or under the supervision of the Court. In Currie v. Consolidated Kent Collieries Corporation, Limited 1 KB 134; 75 LJKB 199; 49 LT 148; 13 Man. 60, an action was brought against a company in voluntary liquidation for money alleged to be payable to the plaintiff in respect of services rendered by him to the company. The liquidators denied any liability and applied to the Court for stay of proceedings in the action. The application was refused on the ground that the liability of the company is a question which was prima facie properly deterrainable in the ordinary way by an action. In delivering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that, under section 207, clause (4), the liquidator in private liquidation may exercise, without the sanction of the Court, all powers given by this Act to an Official Liquidator in a winding up by the Court. This matter does not touch the question with which we are concerned now. The question before us is whether the learned Subordinate Judge has the power to stay the execution proceeding. We do not mean to suggest that no Court has the power, but we are decidedly of opinion that the learned Additional Subordinate Judge of Asansol has no power to stay the proceedings in execution of the decree obtained by the decree-holder appellant. The result is that this appeal is allowed and the order of the Court below is set aside. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
