TARUBALA SAHA Vs. NATH BANK LTD

JUDGEMENT

(1.) This rule is against an order of the First Subordinate Judge at Alipore being Order No. 19 of January 27, 1971, in Title Suit No. 46 of 1970. The petitioner, it appears, preferred a claim against attachment of property by Nath Bank Ltd. (in liquidation). There were proceedings under Order 21, Rule 58, of the Code of Civil Procedure, which terminated against the petitioner. Thereafter, the petitioner filed a suit under Order 21, Rule 63. The suit was instituted without obtaining leave of court as contemplated by Section 171 of the Indian Companies Act, 1913. The First Subordinate Judge by his aforesaid order has directed the petitioner to obtain the leave by February 27, 1971, and has stayed all proceedings in the suit under Order 21, Rule 63, in the meantime. The petitioner is aggrieved by this order.

(2.) Mr. Das appearing for the petitioner has argued that no leave under Section 171 is necessary to institute a suit under Order 21, Rule 63. His contention is that a suit under Order 21, Rule 63 is a suit by way of defence and is merely a continuation of the proceedings under Order 21, Rule 58. Learned advocate primarily relied on a Division Bench judgment of this court in Kartic Chandra Pal v. Noakhali Union Bank Ltd., In this case it has been held that where a decree in favour of a bank in liquidation is transferred by the High Court to another court for execution, the executing court has jurisdiction to decide a claim under Order 21, Rule 58, of the Code, notwithstanding Section 45B of the Banking Companies Act and no leave under Section 171 of the Indian Companies Act, 1913, is necessary to prefer such a claim. The Division Bench is of the view that the transfer order carries with it also the necessary leave under Section 171 to proceed with the execution including consideration of claims and objections thereto and no leave or fresh leave under Section 171 is therefore necessary.

(3.) It is apparent that this case did not go beyond Order 21, Rule 58. But Mr. Das invites us to apply the same principles to suits under Order 21, Rule 63, as well. Whether or not such an extension is possible depends on numerous factors including the nature of a suit under Order 21, Rule 63, the reliefs claimed in such a suit and the forum for such a suit. We shall discuss these matters in detail later in this judgment.