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TMI Blog1937 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the company shall not be entitled to demand payment of their dues at once except in terms of the present scheme which shall remain in force for 10 years." "( e ) The company until all depositors are paid off under this scheme shall set a part and distribute at least three-fourths of the total cash realization after deduction of all necessary expenses and costs among the depositors pro rata to be applied by them in the first instance towards the principal due to them and in the next place to the interest accruing due thereon. Such distributions shall be made as soon as a sufficient sum accumulates and shall be made at least once a year commencing from the year 1341 B. S." This scheme was sanctioned by Buckland, J., on 27th November 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 1936, one instalment having been paid out of Court. This application was allowed to proceed by the Small Cause Court Judge by his order dated 26th September 1936, which is under review before us. He gave the following reasons for overruling the objection of the company; ( i ) that the scheme sanctioned by this Court was not intended to be operative against the opposite party, ( a ) as he was a judgment-creditor before the approval of the scheme by this Court, and ( b ) as no notice of the meeting convened in terms of the order of this Court under Sec. 153 dated 30th May 1933 had been served on him and ( c ) as an instalment due under the decree had been paid to him out of Court, and ( ii ) that the scheme sanctioned by this Court does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Court was invoked under the provisions of the Companies Act; and (2) cases, where the effect of a scheme already sanctioned under Sec. 153 by this Court on execution proceedings has been considered. The cases in In re Dewangunj Bank and Industry Co., Mihirendra Kishore Dutt v. Brahmanberia Loan Co. Ltd., In re Melanda Loan Office Ltd., In re Jalpaiguri Banking Tradig Co., Ltd., Rajshahi Banking Corporation v. Surabala and In re Mymensingh Loan Office Ltd., fall within the first group. In all these cases the Court had to consider whether a scheme is to be sanctioned under Sec. 153 or a scheme so sanctioned ought to be modified. The cases in Sushilabala Basu v. Anjuman Trading and Banking Co., Ltd., Barisol Loan Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd creditor who has already obtained a decree cannot be summoned at the meeting and would not be included in the scheme when it comes up for approval of the Court. When a scheme already sanctioned comes up before the said Court for being modified, some of these factors may become important, although on the question as in what precise circumstances the Court would modify a scheme already sanctioned there is divergence of opinion: See LORT-WILLIAMS, J., in In re Mymensingh Loan Office Ltd. Where, however, the matter comes up before an executing Court on an objection by the debtor company under Sec. 47, Civil Procedure Code different principles in our judgment apply. The executing Court has then to consider only two questions, namely: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the scheme and this is the only way in which the opposite party could have moved. This is the view expressed by BUCKLAND, J., in Dewanganj Bank's case and by my learned brother NASIM ALI, J., in which I concurred in Mahigunj Loan Office v. Behari Lal Chaki, which was a case between the same parties and on the same scheme which we are considering in this case. In the last mentioned case we no doubt found as a fact that notice of the meeting had been served upon the judgment-creditor, but the principles on which we proceeded in dealing with the second ground raised before us in that case covers the case where no such notice has been served. "An irregularity" says Macnamara, "in its most general sense, is the technical term for every ..... X X X X Extracts X X X X X X X X Extracts X X X X
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