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TMI Blog1984 (3) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission to bid the property in the auction. It was granted. In the meanwhile, the third respondent paid Rs. 3,000. The fourth respondent filed the suit against the first respondent company, O.S. No. 349 of 1979, of the Sub-Court, Tellicherry, for recovering a sum of Rs. 7,000 odd and obtained a decree on March 8, 1980. In the said suit, E.P. No. 85 of 1980 was filed by the fourth respondent on June 12, 1980, and he attached the decree obtained by the first respondent against the petitioner and the third respondent (O.S. No. 1 of 1972). E.P. No. 150 of 1980 was thereafter filed in O.S. No. 1 of 1972 for sale of the property involved in that suit. The property was brought to sale on June 2, 1983, and it was purchased by the fourth respondent. The sale was for Rs. 10,010 and after setting off the amount due under the decree, the balance of Rs. 3,010 was deposited in court which may go in satisfaction of the first respondent's decree against the applicant (decree holder in O.S. No. 1 of 1972). The sale was confirmed on August 10, 1983, and full satisfaction was entered in O.S. No. 349 of 1979 as per E.A. No. 296 of 1983. The applicant, the third respondent (co-judgment debtor), the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ( India ) Ltd. v. Sukumararan Pillai, ILR (1983) 1 Ker 700; [1985] 57 Comp. Cas. 88 (Ker.). The provisions of section 446 are totally inapplicable. No leave is required to continue the proceedings in O.S. No. 1 of 1972 and O.S. No. 349 of 1979 and no question of transferring the said proceedings to this court arises. It is also contended that mere appointment of a provisional liquidator does not affect the continuance of the pending proceedings and no leave of court is required. Thirdly, the fourth respondent contends that section 537 will apply only if there is a winding up order and section 537 should be read along with section 446(2) of the Act. In this case, it cannot be said that the company is being wound up. It is also the fourth respondent's plea that at any rate the applicant is not entitled to invoke the provisions of section 537 of the Act and contend that the proceedings by way of sale in O.S. No. 1 of 1972 are void, illegal and, therefore, liable to be set aside, or that the proceedings in O.S. No. 349 of 1979 should be transferred to this court. This is all the more so, in view of the conduct of the applicant and the the third respondent in the execution proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave of the court, against the estate or effects of the company, after the commencement of the winding up; or ( b )any sale held without leave of the court, of any of the proper ties or effects of the company afrer such commencement; shall be void. (2) Nothing in this section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government". It is true that an order of winding up was passed and a provisional liquidator was appointed by a learned single judge by order dated June 16, 1981. But it is seen that in the appeal, MFA Nos. 578, 579 and 520 of 1981 S udarsan Chits ( India ) Ltd. v. Sukumaran Pillai [1983] ILR 1 Ker 700,737,738; [1985] 57 Comp. Cas. 88 (Ker.), the official liquidator was directed to function as the provisional liquidator and the winding up order was held in abeyance. It is common ground that the judgment of the Division Bench, whereby the winding-up order was ordered to be kept in abeyance, is still in force. If that is the position, the only question is, even assuming that the provisional liquidator was appointed for certain purposes as envisaged by section 450 (1) and (3) of the Act, whether section 446 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of the Act is only available to the liquidator and not to the applicant. Lastly, I should also state that the conduct of the applicant disentitles her to move this court. The applicant and the third respondent were parties in E.P. No. 150 of 1980 in O.S. No. 1 of 1972. The petition was filed for sale of the property involved in O.S. No. 1 of 1972. The matter came up for consideration on many occasions. Adjournments were sought by remitting some amount. The property was brought to sale on December 23, 1982. The fourth respondent purchased the property after obtaining leave of court. The sale was confirmed. Full satisfaction was recorded. The amin went to the property to effect delivery. Part delivery was also effected. It is after all these that the applicant has chosen to move this court for transferring to this court all execution proceedings in respect of O.S. No. 1 of 1972 and O.S. No. 349 of 1979 of the Sub-Court, Tellicherry. The applicant took part in the execution proceedings at various stages. Her conduct, viewed as a whole, disentitles her to move this court at this distance of time. I am inclined to take the view that, on the facts, this application is filed without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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