TaxTMI 
TaxTMI 
2004 (11) TMI 329
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting 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 pronounced and the pronouncement of orders was adjourned to September 2, 1991. On August 30, 1991, the Ministry of Law, Justice and Company Affairs, Government of India, issued a Notification S. O. No. 562(E) in exercise of the powers conferred under sub-sections (1) and (2) of section 396 of the Companies Act, 1956, called the OMC Alloys Limited and the Orissa Mining Corporation Limited (Amalgamation) Order, 1991. It provided for the amalgamation of the defendant with the Orissa Mining Corporation Limited (hereinafter referred to as the "Corporation"), a Government of Orissa company incorporated under the Companies Act. In addition to providing for the amalgamation of the two companies and for transfer of all rights and properties of the defendant and the vesting of the same in the Corporation in accordance with law, by clause 12, it provided for the dissolution of the company. Clause 12 reads : "12. Dissolution of M/s. OMC Alloys Limited.-Subject to the other provisions of this order, as from the appointed d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 Iron and Steel Company (TISCO). It is seen that the defendant did not take further part or interest in the litigation and this resulted in Money Suit No. 491 of 1986 being decreed ex parte on November 12, 1991. The defendant did not accede to the demand of the plaintiff for satisfying the decree. The plaintiff came to know of the Government notification and the subsequent developments and issued a notice to the Secretary, Department of Steel and Mines demanding payment of the decretal dues. The decree having not been satisfied, the plaintiff filed an execution petition on October 24,1994, impleading the defendant as judgment debtor No. 1, the Corporation as judgment-debtor No. 2 and the State Government of Orissa as judgment-debtor No. 3. In other words, the plaintiff, the decree holder, sought to execute the decree not only against the defendant judgment-debtor, but also against the statutory transferees. The Corporation filed an objection objecting to the executability of the decree as against it. The Government of Orissa ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 three judges. Normally, in a case covered by Order XXII, rule 10 of the Code of Civil Procedure where rights are derived by an assignee or a successor-in-interest pending litigation, it is for that assignee or transferee to come on record if it so chooses and to defend the suit. It is equally open to the assignee to trust its assignor to defend the suit properly, but with the consequence that any decree against the assignor will be binding on it and would be enforceable against it. Equally, in terms of section 146 of the Code of Civil Procedure, a proceeding could be taken against any person claiming under the defendant or the judgment-debtor. Similarly, a person claiming under the defendant or the judgment debtor could seek to challenge the decree or order that may be passed against the defendant, by way of appeal or otherwise, in the appropriate manner. But, it would not be open to it to challenge the decree as void or unenforceable in execution in the absence of any specific provision in that regard in the statute or order brin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 clause 7, an obligation was cast on the plaintiff to implead the Corporation as a defendant in the suit and to proceed with the same. It may be noted that at the relevant time, the suit stood dismissed for default and the same had not been restored though the application for restoration of the suit was pending. The suit was got restored after the amalgamation took place and the consequences as set out therein followed. On the terms of the amalgamation order, the plaintiff did have the right to proceed with the application for restoration and the suit as against the Corporation by taking appropriate steps in that behalf. We must also notice that it was the plain duty of the defendant and its counsel, to bring to the notice of the court the fact of promulgation of the amalgamation order so as to enable the court to pass appropriate orders regarding the continuance of the proceeding before it. All the same, that can only be a reason for the plaintiff not having taken the requisite steps at the relevant time. In the face of the amalgama....