VIDYADHAR UPADHYAY Vs. SREE SREE MADAN GOPAL JEW

JUDGEMENT

(1.) This appeal is directed against a judgment order passed by the learned Company Judge in an application under Section 440, 535 and 578 of the Companies Act, 1956, (hereinafter referred to as the said Act). The facts of this ease are as follows: The subject matter of this suit is a room in the demarcated northern portions of premises No. 143/1/1, Cotton Street, Calcutta (hereinafter referred to as the said premises). On or about 13th March, 1983 the said premises was purchased in the name of the plaintiff's relative. On 3rd May, 1944 Ajit Kishore Maitra, the defendant No. 1 in suit No 961 of 1959, the then Shebait of the plaintiff, executed a deed of lease on the said premises in favour of one Bhagwandas Kalla and others for a period of 90 years. On 26th June, 1947 Kallas transferred the said leasehold interest to Messrs. Kalla Properties and Industrial Corporation Ltd., the defendant No. 6 in the said Suit No. 961 of 1953. On or about 24th August, 1950 the said Messrs. Kalla Properties and Industrial Corporation Limited purported to mortgage the said leasehold interest of the said premises to Jagannath Roy and Baluram Ray the defendants Nos. 7 and 8 in the said Suit No. 961 of 1959. By an indenture dated the 11th May, 1953 the said Kalla Properties and Industrial Corporation Limited purported to grant a sub-lease of the said premises to one Dhonraj Purohit who was defendant No. 3 in the said Suit No. 961 of 1959. Sometime in 1954 the said Dhonraj Purohit purported to assign the said sub-lease of the said premises in favour of one Asharam Swami, the defendant No. 10 in the said Suit No. 961 of 1959 Thereafter the said Asharam Swami purported to grant a sub-lease to Bholalal, the defendant No. 11 in the said Suit No 961 of 195K The said BhoIalaI and his son purported to assign the sub-lease in favour of Messrs. Latiyal Agricultural and Industrial Private Limited, the defendant No. 12 in the said Suit No. 961 of 1&59. Messrs. Latiyal Agricultural and Industrial Private Limited is the company which has gone into liquidation and in respect of which this application has been made. In July, 1959 the Deity filed the suit being Suit No. 961 of 1959 in this Court praying for following reliefs.

(2.) At that time the said company has been collecting rents, issues and profits of the said premises. Thereafter, an advocate of this court was appointed Receiver in respect of the said premises by an order, dated 14th September, 1959. On 21st April, 1966 an winding up order was made in respect of the said company. On 6th July 1971 there was a decree passed by the consent of the parties in the said suit No. 961 of 1959. The company (in liquidation) represented by the Official Liquidator was defendant No. 2 therein. The Official Liquidator was given leave to compromise the suit upon the terms of settlement set out in the schedule. The said term of settlement provided inter alia, as follows :

(3.) The plaintiff started execution proceeding for eviction under the decree in Suit No. 961 of 1959. In respect of another proceedings there was an appeal being No. 26 of 1970 where setting aside the Lower Court's, order in execution, the Appeal Court held that the decree was not a decree for delivery of possession which could he executed. Following the same in the appeal preferred by the appellant herein in such execution case, appeal was allowed and Order passed in execution was set aside and execution application was dismissed. However, it was made clear that the judgment would not prejudice the plaintiff from instituting or taking any other action against the appellants for the purpose of recovery of possession of the disputed room in accordance with law.