9911796707
TMI Blog1950 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the company except by leave of the court. The appellant before me is the plaintiff in the original suit who sued to set aside an order on a claim petition filed by the first defendant on the basis of an assignment in his favour by the second defendant regarding the rents of certain properties which had been attached by the plaintiff. The claim succeeded in the execution court, and the case of the plaintiff is that the assignment was a sham transaction unsupported by consideration which was entered into by the second defendant with a view to defeating the claim of the plaintiff in execution of its decree against the second defendant in O.S. No. 195 of 1936 on the file of the District Munsiff's Court at Palghat. Both the courts be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors as representing the Wariar Bank (in liquidation) applied in I. A. No. 225 of 1943 for attachment of the mesne profits or of the rent payable by the 3rd defendant to the 2nd defendant and the claim petition was filed by the 1st defendant as E. A. No. 506 of 1943 only in the attachment proceedings started by the liquidators". The decision in Calicut Bank Ltd.'s case ( supra ) does not therefore apply to the present case where the first defendant only put forward a claim as a defence to the execution proceedings already started by the Official Liquidators. It is observed in Palmer's Company Law, 19th edn., by A.F. Topham, K.C, at page 404 : "The object of the winding up provisions of the Companies Act, 1862, said Lindley, L.J., in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the language of the statute is sufficiently wide to cover a case not within its proposed or implied purpose and object the language must still be given effect to. But as pointed out in Rustomji's Company Law, 2nd edn., at page 396: "When once an action by the company itself has been proceeded with, there is no necessity for the defendant in the action to obtain leave for any defensive proceeding on his behalf. Where a company in liquidation is plaintiff, the defendant may put in a counter claim (against the company) in the nature of a defence without obtaining the leave of the court." Reference is made by the learned author in this connection to a case in Humber Co. v. John Griffiths Cycle and Co. [1901] 35 L.T. 141 , and to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution started by the plaintiff bank itself. It is urged for the appellant that had the claim petition failed and not succeeded and had a suit been filed by the present respondents that would obviously have been hit at by the requirement of leave of court in the winding up, and that there is no reason why merely because the claimants succeeded, that should make any difference. The argument is, strictly speaking, beside the point, because what we have to consider is not so much the case of the suit under Order 21, Rule 63, Civil Procedure Code, as the nature of the claim proceeding itself. As put in the case in Mt. Zamrut v. Peoples Bank [1936] 6 Comp. Cas. 430 , which has been relied upon by the lower appellate court in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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