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TMI Blog2004 (11) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... t to proceed with the trial and disposal of the suit in accordance with law. - CIVIL APPEAL NO. 3209 OF 2002 - - - Dated:- 5-11-2004 - R.C. LAHOTI, G.P. MATHUR AND P.K. BALASUBRAMANYAN, JJ. Altaf Ahmad and Ms. Kirti Mishra for the Appellant. Subhash Sharma, Anukul Ch. Pradhan and Shiv Sagar Tiwari for the Respondent. JUDGMENT P.K. Balasubramanyan, J. M/s. Ashok Transport Agency, respondent No. 1 herein (hereinafter referred to as the "plaintiff"), filed a suit against M/s. O.M.C. Alloys Limited, a Government company (hereinafter referred to as the "defendant"), for recovery of a sum of Rs. 3,90,210 with interest thereon. The suit was filed on August 1, 1986. The defendant filed a written statement on October 14, 1987. On August 29, 1990, the suit was dismissed for default. On September 20, 1990, the plaintiff filed an application under Order IX, rule 9 of the Code of Civil Procedure for restoration of the suit. On August 3, 1991, the defendant filed a memo substantially submitting that it was not opposing the restoration of the suit. The application for restoration was heard and posted for orders to August 17, 1991. On that date, orders were not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff to continue the prosecution of their suits against the Corporation. It is seen that the defendant, who was represented by counsel and who had filed a written statement in the suit, did not bring to the notice of the court that the defendant had got amalgamated with the Corporation, that it stood dissolved and that it was necessary to implead the Corporation before proceeding further with the suit. The plaintiff also did not take any steps to implead the Corporation as a defendant in the suit either due to ignorance or due to want of care. On September 2, 1991, with only the defendant on the party array, the application for restoration of the suit was allowed, the suit was restored and adjourned to October 31, 1991. Meanwhile, on September 24, 1991, the Government of Orissa promulgated Ordinance No. 8 of 1991 in exercise of powers conferred under article 213(1) of the Constitution of India and issued a notification dated September 24, 1991, whereby the Charge Chrome Division originally known as OMC Alloys Limited of the Corporation stood transferred and vested in the Government of Orissa. On September 27, 1991, the Government of Orissa sold what had vested in it, to Tata Ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of Orissa. This appeal was heard by two learned judges of this court. One learned judge came to the conclusion that the decree could not be enforced against the appellant and the appellant was entitled in execution to successfully raise the objection of non-executability of the decree as against it. The other learned judge took the view that the decree was enforceable against the Corporation and also the Government of Orissa, though they were not impleaded in the suit, since they were successors-in-interest of the judgment debtor. It is seen that the essential difference in approach between the two learned judges was as to whether it was for the plaintiff to have taken steps to bring on record the Corporation and the State of Orissa as parties to the suit before proceeding with it and obtaining a decree, or whether it was for the successors-in-interest of the defendant, if they wanted it, to seek to come on record by themselves so as to defend that suit. Anyway, the two learned judges thus differed. In view of this, their Lordships referred the appeal to a larger Bench for decision by order dated April 30, 2004. That is how this appeal has come up before a Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims demand or proceedings against the dissolved company, but claimants like the plaintiff and other creditors were not deprived of their right to proceed with the enforcement of their claims against the dissolved company in terms of the order. Clause 7, which we have quoted above, provided that any suit, prosecution, appeal or other legal proceeding by or against the dissolved company pending on the appointed day, shall not abate or be discontinued or be any way prejudicially affected by reason of the transfer to the resulting company, the Corporation, of the undertaking of the dissolved company or of anything contained in the amalgamation order. But it was specifically provided that the suit, prosecution, appeal or other legal proceeding may be continued, prosecuted and enforced against the resulting company, namely, the Corporation, in the same manner and to the same extent as it would or may be continued, prosecuted and enforced by or against the dissolved company, if the order of amalgamation had not been made. In other words, a claimant like the present plaintiff, was given the right to proceed with the suit as against the Corporation in terms of clause 7. On the wording of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with law, after bringing on record the Corporation, the Government of Orissa and TISCO, since the State had subsequently sold the assets to TISCO, and after giving the newly added defendants an opportunity to file their written statements, not inconsistent with the one already filed by the defendant. After giving of such an opportunity to the newly added defendants, it will be for that court to proceed with the trial and disposal of the suit in accordance with law. We therefore allow this appeal. We set aside the orders of the executing court and the High Court on the objections raised by the appellant. We close the execution petition. In the interest of justice, we set aside the ex parte decree in Money Suit No. 491 of 1986 on the file of the Civil Judge, Senior Division, Bhubaneswar, and remand that suit to the Court of the Subordinate Judge of Bhubaneswar for a fresh trial and disposal as indicated above. The parties would appear before that court on December 14, 2004, to take further orders regarding the posting of the suit. Learned senior counsel for the appellant has submitted before us that appearance would be entered on behalf of the Corporation and the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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