AUGUSTINE Vs. MATHAI MATHAI

JUDGEMENT

(1.) This is an appeal by an auction purchaser at a sale conducted by the Official Liquidator of Kothamangalam Rubber Estates Ltd. (in liquidation). With the sanction of the Court winding up the said Company the Official Liquidator, who is respondent. 2 to this appeal, sold the properties of the company at a public auction held on 16-3-1952 and the appellant became the purchaser. The proclamation of sale expressly stated that the sale was being held subject to the confirmation of the Court. When the Official Liquidator's report asking for confirmation came up before the Court there was before it a petition by respondent 1 impeaching the sale on grounds of irregularity and fraud. In his petition respondent 1 alleged that the liquidator wrongfully kept out him and several other persons from participating at the auction by declining to receive deposits from them and that in so doing the Official Liquidator was acting in collusion with the appellant to suit his own ends. According to respondent 1 the Official Liquidator was a partner of the appellant with respect to the purchase effected by the latter. When this petition came up for hearing the appellant raised a preliminary objection that respondent 1 had no locus standi to impeach the sale. The ground of objection was that respondent 1 was not a "person aggrieved" within the meaning of S.183(5) of the Indian Companies Act, 1913. The lower court overruled the preliminary objection and posted the petition for evidence. The appeal is directed against that order.

(2.) Respondent 1 raised before us a preliminary objection as to the maintainability of the appeal. His point was that as the lower court had not finally determined the appellant's right to the properties purchased by him the appeal was incompetent, and that S.202 of the Indian Companies Act, 1913, did not permit such an appeal. There is divergence of judicial opinion as to the scope and amplitude of S.202, but in the view we take regarding the preliminary point taken before the lower court we do not think it necessary to pronounce upon the question of the maintainability of the appeal. Were we of the opinion that the appellant's preliminary objection before the lower court was one of substance we would not have hesitated to give him relief at least in the exercise of our revisional jurisdiction. This view point renders a decision as to the maintainability of the appeal bootless. We shall therefore deal with the lower court's order on the merits.''

(3.) Though the learned Judge considers the question whether Respondent 1 is a "person aggrieved" within the meaning of S.183 (5), a careful reading of his order would show that the preliminary point was overruled not for the reason that respondent 1 was a "person aggrieved". After referring to the English decisions cited before him the learned Judge states that the direct question whether a person who has been wrongfully excluded by an official Liquidator from participating from a sale which he advertises with the sanction of the court, is or is not a "person aggrieved" by the act or decision of the liquidator is not covered by any reported decisions. Then he states that in an Allahabad decision (AIR 1935 All. 68 ) and in a Travancore decision (1944 TLR 665) it was assumed that such a person would be an aggrieved person and afterwards proceeds to consider an aspect which was presented before him on behalf of respondent 1 to sustain his petition. It is on his decision on that point that the learned Judge held that an enquiry should be held regarding the allegations in the petition filed by respondent 1. This is clear from paragraph 8 of the order which we take the liberty to quote here in full: