KALIPADA SINHA Vs. MAHALAXMI BANK LTD

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure combined with Article 227 of the Constitution of India.

(2.) The facts are shortly as follows: There was a Bank in Calcutta called the Mahalaxmi Bank Ltd, which had its head office at 135 Canning Street, Calcutta. Sometime before November, 1948 the said Bank suspended its business and went into moratorium under the provisions of Section 277 N of the Indian Companies Act, 1956, read with Section 153 of the Indian Companies Act, 1913. On the 10th March, 1949 the Banking Companies Act, 1949, (Act X of 1949) (hereinafter referred to as the "said Act") came into force. Originally, the said Act did not contain any provisions as to the settlement of the list of debtors as is done in winding up proceedings. On or about the 30th December, 1953 the Banking Companies Amendment Act 1953 (Act LII of 1953) came into force and provisions as to settlement of the list of debtors were introduced in the said Act. Presently, 1 shall deal with the relevant provisions. On the 7th Tuna, 1954 the said Bank filed an application in this High Court under Section 45M (b) read with Section 45D (6) of the said Act for settlement of the list of debtors. On the 6th of August, 1956 an order was made in favour of the Bank settling the list of debtors under the provisions above-mentioned, and Messrs. Orient Plastics of which the petitioner Sri Kalipada Sinha is the proprietor was included in the list and was shown as a debtor for the sum of Rs. 21,804 together with interest at 6 per cent. per annum. There was an appeal against that order but subsequently the order has been upheld. The Bank thereafter transmitted the certificate, which had the force of a decree under Section 45D (6) of the said Act, to the Alipore Court for execution. The judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure and the execution proceeding is pending. In the meanwhile, what had happened was that the Bank had made an application to the Central Government under Section 21 of the Indian Companies Act 1956 for change of its name from "Mahalaxmi Bank Ltd." to Mahalaxmi Loan and Trading Co. Ltd." On or about the 25th November, 1960 the Bank received approval of the Central Government for this change and on the 22nd December, 1960 the Registrar of Joint Stock Companies, Calcutta, issued a certificate of incorporation in the new name under Section 23 of the Companies Act 1956. Thereupon, on the 3rd March, 1961 the Bank made an application before the Executing Court at Alipore for amendment of the petition for execution by altering the Bank's name to the new name in which it had been incorporated as above mentioned. The judgment-debtor filed an objection and on the 7th September, 1961 the learned Subordinate Judge, Alipore overruled the objection of the judgment-debtor and granted the amendment by substituting the altered name in the place and stead of the old name of the Bank. In December, 1961 this application was made for a revision of that order.

(3.) In the Court below, the point taken was that under the Civil Procedure Code no such amendment could be allowed. Here before us, a new point was taken for the first time, viz., that under the said Act it was the High Court which had the exclusive jurisdiction to execute the so-called decree and therefore the Alipore Court had no jurisdiction, either to execute the decree or to allow any amendment of the execution petition. This new point was allowed to be taken, on terms and has now been argued before us.