9911796707
TMI Blog2001 (10) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... artnership firm having its registered office at Ezra Park, Kamarhatty, P.S. Baranagar, 24 Parganas (North). 2. There was a suit being Title Suit No. 71 of 1960 before the Subordinate Judge (the designation then was) District Court, Alipore, 24 Parganas, for ejectment of the applicant by the official trustee as owner of the premises, being numbered 117, Barrackpore Trunk Road, Kamarhatty, 24 Parganas(N), inter alia, on the grounds that the official trustee as owner of the premises leased out 40 bighas of land to one known as Beni Engineering for a period of 51 years and also let out the front portion of the premises with effect from 1-6-1950 on the terms and conditions set out in the letter relevant for the purpose. It was alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant sought for leave to proceed with the second appeal. The trustee and the beneficiary under the trust opposed this application by saying that before the application for recalling the order passed by the Division Bench was made, no leave was obtained by the party from the Court having company jurisdiction and as such the order of restoration passed by the Division Bench is nullity. Now there is no scope of rectification of the order already held as nullity. 5. As per sub-section (1) of section 446, when a winding up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced or, if pending at the date of the winding up order, shall not be proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the governance of the civil court cannot be ruled out in that situation, particularly when the second appeal was not dismissed on the merits. Moreover, by the order of restoration, the original position of the lis before the company had gone into liquidation has been restored into the file. One may say that the Companies Act being a special Act should prevail over the Code of Civil Procedure being a general Act, therefore, the civil court had no jurisdiction in entertaining such application without leave being granted by the court having company jurisdiction. To that I may only add that special enactment will definitely prevail over general enactment in respect of those who are primarily responsible for obtaining such leave bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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