1967 (7) TMI 90

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ctober, 1964. The suit was for the enforcement of his mortgage against the mortgagors who were arrayed as defendants Nos. 1 and 2. In this suit, firm Mathura Ram Beni Ram (in liquidation) through the official liquidator was impleaded as defendant No. 3 on the allegation that it was a subsequent mortgagee. As the order of the winding up of firm Mathura Ram Beni Ram had been made on the 20th May, 1964, an objection was taken by the official liquidator in his written statement that the suit could not proceed against the said defendant without the leave of this court. Thereupon the applicant made the aforesaid application in this court on the 22nd September, 1966. Now, on the applicant's own showing, the application for leave to commence the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tion, which however, still survives is whether the court can give leave to commence a suit which on the date the leave is applied for is time-barred. In my opinion, the answer to this question must be given in the negative, because of the law of limitation. Under section 446, a suit against a company which has been ordered to be wound up, cannot commence without the leave of the court, but if it has been instituted without that leave, it remains dormant and can come to life only when the leave of the court is sought for and given. It follows, therefore, that the leave must be sought for at a time when the suit is still within time. Otherwise the court would be granting leave to commence a time-barred suit which it clearly cannot do. It is n....