1950 (8) TMI 10 - HC - Companies Law

Appeal allowed, costs awarded. Order set aside, case remitted to restore execution application.

The appeal was allowed with costs, setting aside the Civil Judge's order. The case was remitted to the Civil Judge to restore the execution application to ... Winding up – Delivery of property to liquidator Issues involved:1. Applicability of Article 182 or 183 of the Limitation Act, 1908.2. Jurisdiction of the Registrar to transfer the execution application.3. Jurisdiction of the District Judge to transfer the execution to the Civil Judge.4. Right of the official liquidator to execute the decree without prior sanction of the High Court.Detailed Analysis:1. Applicability of Article 182 or 183 of the Limitation Act, 1908:The primary issue in this appeal was whether Article 182 or 183 of the Limitation Act, 1908, applied to the execution application dated 22nd September, 1946. Article 182 provides a three-year period of limitation for the execution of a decree or order of any civil Court not covered by Article 183 or section 48 of the Civil Procedure Code, 1908. Article 183, however, applies to applications for enforcing a judgment, decree, or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction, providing a twelve-year limitation period.The decree-holder contended that the order passed by the High Court on 15th September, 1942, under section 186 of the Companies Act, 1913, was enforceable under Article 183. The Court examined whether the order was passed in the exercise of its 'ordinary original civil jurisdiction.' The Court determined that the phrase 'ordinary original civil jurisdiction' should be interpreted literally and with reference to the Letters Patent of the Court. The Court concluded that the High Court ordinarily has jurisdiction in company matters unless specifically conferred upon a District Court by the Central Government. The order was deemed to be of a civil nature, as it related to the payment of money, and thus fell under the Court's civil jurisdiction.The Court referred to several precedents, including the Full Bench decision in Dehra Dun Mussoorie Electric Tramway Co., Ltd. v. President, Council of Regency, Nabha State, which held that proceedings under section 186 of the Companies Act are civil in nature. The Court also distinguished between ordinary and extraordinary jurisdiction, concluding that the jurisdiction exercised by the High Court in this case was ordinary, original, and civil. Consequently, Article 183 was applicable, providing a twelve-year limitation period.2. Jurisdiction of the Registrar to transfer the execution application:The judgment-debtor contended that the Registrar of the High Court had no power to transfer the execution application to the District Judge. The Court referred to clause (e) of sub-rule xi of Rule 9, Chapter I, of the Rules of the High Court, which empowers the Registrar to 'send decrees and other orders to other Courts for execution.' The Court held that this rule, framed under section 122 of the Code of Civil Procedure, was valid and that transferring decrees for execution is a ministerial act. The Registrar's action was deemed competent and within jurisdiction.3. Jurisdiction of the District Judge to transfer the execution to the Civil Judge:The judgment-debtor also argued that the District Judge lacked jurisdiction to transfer the execution to the Civil Judge. The Court referred to section 24 of the Civil Procedure Code, which allows the District Judge to transfer any suit, appeal, or proceeding pending before him to any subordinate Court competent to dispose of the same. The Court found no illegality in the District Judge's action and upheld the transfer.4. Right of the official liquidator to execute the decree without prior sanction of the High Court:The judgment-debtor contended that the official liquidator required prior sanction from the High Court to execute the decree. The Civil Judge dismissed this contention, stating that it was a matter between the High Court and the liquidator and did not affect third parties. This finding was not challenged by the respondents in the High Court.Conclusion:The appeal was allowed with costs, and the order of the Civil Judge was set aside. The case was remitted to the Civil Judge to restore the execution application to its original number and proceed with the execution of the order dated 15th September, 1942, according to law.