PADMANABHAN PILLAI Vs. SOUTH INDIA MATCH FACTORY

JUDGEMENT

(1.) The second plaintiff in O.S. No. 3 of 1105 on the file of the District Court of Quilon is the Revision Petitioner. The plaintiffs who are two in number filed a suit for money against the South India Match Factory Limited, Madras. The Company was incorporated in Madras under the Indian Companies Act and had its registered office at Madras. While the suit was pending the Company was wound up by the Madras High Court in O.P. 2 of 1933 of that court on 16.2.1939. A liquidator was appointed to wind up the affairs of the company. On the application of the plaintiffs the liquidator was impleaded as additional second defendant in the case on 17.2.1940. The Company had at Thenmala in Travancore a Match Factory situated in a property about 35 acres in extent belonging to Government which was taken on Kuthakapattom by the Company. With the approval of the Madras High Court the liquidator sold this factory with the leasehold interest and the buildings and machinery to one Shamsuddin Rowther on 9th May 1940 corresponding to 27th Medom 1115. Subsequently, on the application of the second plaintiff the court attached before judgment the factory with the buildings and machinery on 22.10.1940 (6th Thulam 1116). After this attachment before judgment the suit was dismissed but it was again restored to file and the vendee of the liquidator was impleaded as 4th defendant in the case. He resisted the suit, his main contention being that the attachment before judgment would not affect his interest in the match factory and its appurtenances. In decreeing the suit the court held that the attachment before judgment was of no avail. In appeal before the erstwhile Travancore High Court, it was held that the dispute relating to the attachment before judgment ought to have been enquired into as one falling under O.21 R. 56 Civil Procedure Code (Travancore) and the question was left open for consideration by the execution court if and when it arose for decision. In other respects the decree of the court below was confirmed.

(2.) In the meanwhile the 4th defendant sold away his interests in the factory to the Madras Match Works Limited. When the second plaintiff who under the decree is entitled to execute it applied for sale of the factory with its site, buildings and machinery this company objected. The objection was treated as a claim by the court below and was enquired into. The court allowed the claim and dismissed the second plaintiffs execution petition for sale of the factory. The revision is from that order. It was at first filed as a Civil Miscellaneous Appeal but was subsequently converted into a Revision Petition. It has to be observed at the outset that the dispute in this case being one between the decree holder and the representative in interest of the 4th defendant and relating to the execution of the decree the order of the court below is one coming under S. 47 C.P.C. and has got the force of a decree and is therefore appealable. But since the appeal would lie to this court and since the matter has come up before a Division Bench of this Court we do not propose to dismiss the Revision Petition on the ground that it is not maintainable.

(3.) Coming to the merits of the petition the argument advanced on behalf of the Revision Petitioner is that the properties attached in this case being immovable properties situated in Travancore the winding up order of the Madras High Court which was at that time a foreign court will not have the effect of vesting those properties in the liquidator appointed by that court and that therefore the sale deed executed by the liquidator in favour of the 4th defendant is invalid. The reason given by the court below for upholding the sale is that since the company was incorporated in Madras and had its registered office there the Madras High Court had jurisdiction to wind up the company and that under S. 178 of the Indian Companies Act when a company is wound up by court all the assets of the company wherever they may be situated will vest in the court. It was therefore held that the Madras High Court had jurisdiction to authorise the liquidator to sell the properties at Thenmala.