JYOTI BHUSHAN GUPTA OTHERS Vs. BANARAS BANK LIMITED

JUDGEMENT

(1.) The Banaras Bank Ltd. -a public limited company having its registered office at Banaras (hereinafter referred to as the Bank) was ordered on March 1, 1940 to be compulsorily wound up by the High Court of judicature at Allahabad, and the Official Liquidator was appointed to conduct the proceedings in winding up. On September 12, 1942 an order was made by the High Court under S. 187 of the Indian Companies Act, 1913 (Act VII of 1913) for payment of unpaid calls and the appellants Jyoti Bhushan Gupta and Gokul Chand, whose names had been placed on the list of contributories, were directed to pay with interest Rs. 95,178-5-9 to the Official Liquidator of the Bank. This order was, by virtue of S. 199 of the Act, enforceable in the same manner in which the decree of the High Court made in any suit pending therein may be enforced. On September 12, 1946 the order was transferred to the District Judge, Allahabad for execution. On September 23, 1946 the Official Liquidator applied to the District Court, Allahabad for execution of the order dated September 12, 1942, and prayed that certain amounts due to the appellants be attached in satisfaction of the claim. The execution proceedings were transferred by the District Judge to the Civil Judge, Allahabad. The appellants contended inter alia that as the application for execution was not preferred within 3 years of the order for payment as prescribed by Art. 182 of the First Schedule of the Limitation Act it was barred by the law of limitation. The Official Liquidator contended that the application was governed by Art. 183 of the Act and that, in any event, certain part payments having been made towards the claim by the appellants, the period of limitation was extended thereby. At the hearing, the alternative plea of part payment was abandoned by the Official Liquidator.

(2.) The Civil Judge held that the application for execution was barred by limitation as it was not preferred within 3 years from the order of the High Court. In appeal to the High Court of Allahabad, the order passed by the Civil Judge was reversed and the proceedings were remitted to the Civil Judge with a direction to restore the execution application to its original number and to proceed with it according to law. Against that order with certificate of fitness granted by the High Court under Art. 133 of the Constitution, this appeal is preferred.

(3.) Counsel for the Company contended that the order passed by the High Court not being a final order the appeal on certificate granted by the High Court is not maintainable. We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under Art. 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal on the certificate and have heard the appeal on the merits.