9911796707
TMI Blog1970 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the High Court which has ordered the company to be wound up. We entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the one on which we have expressed our opinion against the appellant. The appeal fails and is dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... on for enforcement of the decree was not maintainable without leave of the High Court which ordered that the company be wound up. On the motion of the plaintiff the company judge granted leave to execute the decree in Second Appeal No. 1380 of 1954. The subordinate judge, before whom the proceedings were pending, dismissed the application filed by Bansidhar, and the order of dismissal was confirmed by the additional district judge and by the High Court in second appeal. Bansidhar's petition for a certificate for appeal to this court under article 133(1)(b) and (c) of the Constitution was also rejected. Bansidhar then preferred two petitions for special leave to this court, one against the order dismissing his second appeal against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the application for execution of the decree without in the first instance obtaining leave of the High Court was entertained without authority. The question sought to be raised in the proposed appeal, it was urged, was of general or public importance. In any case it was contended that there is conflict of opinion among the courts in India on the true interpretation of section 171 of the Indian Companies Act, 1913, and section 446 of the Companies Act, 1956 (which replaced section 171 of the Act of 1913), and the High Court was bound to grant the certificate applied for either under section 133(1)(b) or under article 133(1)(c) or both the clauses. Our attention is invited to the decision of the High Court of Calcutta in Harnarain Misra v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the benefit of all the crditors and that some creditors only shall not obtain an advantage over others by instituting or prosecuting proceedings against the company. The section is intended to maintain control of the court which has made an order for winding up on proceedings which may be pending against the company will be initiated after the order of winding-up, and the court may retain seized of all those matters so that its affairs are administered equitably and in an orderly fashion. When the Second Appeal No. 1380 of 1954 was pending before the with Court of Calcutta at the instance of the company and Bansidhar against the decree passed by the District Court in ejectment, the company was ordered to be wound up by order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not think that there is anything in the Act which makes the leave a condition precedent to the institution of a proceeding in execution of a decree against the company and that failure to obtain leave before institution of the proceeding entails dismissal of the proceeding. The suit or proceeding instituted without leave of the court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed instituted on the date granting leave. In Buckley on the Companies Acts, 13th edition, at page 490, it is observed: "Leave to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. We entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the one on which we have expressed our opinion against the appellant.
The appeal fails and is dismissed. The appellant will pay the costs of the plaintiff in this court. X X X X Extracts X X X X X X X X Extracts X X X X
|
