9911796707
TMI Blog1967 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... f his mortgage against the mortgagors who were arrayed as defendants Nos. 1 and 2. In this suit, firm Mathura Ram Beni Ram (in liquidation) through the official liquidator was impleaded as defendant No. 3 on the allegation that it was a subsequent mortgagee. As the order of the winding up of firm Mathura Ram Beni Ram had been made on the 20th May, 1964, an objection was taken by the official liquidator in his written statement that the suit could not proceed against the said defendant without the leave of this court. Thereupon the applicant made the aforesaid application in this court on the 22nd September, 1966. Now, on the applicant's own showing, the application for leave to commence the suit against firm Mathura Ram Beni Ram was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es is whether the court can give leave to commence a suit which on the date the leave is applied for is time-barred. In my opinion, the answer to this question must be given in the negative, because of the law of limitation. Under section 446, a suit against a company which has been ordered to be wound up, cannot commence without the leave of the court, but if it has been instituted without that leave, it remains dormant and can come to life only when the leave of the court is sought for and given. It follows, therefore, that the leave must be sought for at a time when the suit is still within time. Otherwise the court would be granting leave to commence a time-barred suit which it clearly cannot do. It is noteworthy that in 'all the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate court reversed the decision of the learned Munsif. The bank filed a second appeal and this court upheld the judgment of the lower appellate court on the ground that as on the date on which the leave was granted a fresh suit could have been commenced and no plea of limitation could have been successfully taken in it, the rejection of the Liquidator's objection was correct. This view was followed in the Gorakhpur Electric Supply Co. 's case ( supra ). It will thus be seen that in both these cases leave was granted when the suits were still within time and the filing of fresh suits after the grant of the leave would have been, a s observed in Peoples Industrial Bank Ltd. 's case ( supra ) a mere technicality. I am, therefore, satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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