BHAGWATI DEVI BUBNA Vs. DHANRAJ MILLS PRIVATE LTD

JUDGEMENT

(1.) This miscellaneous appeal has been filed by the decree-holder appellants against the order in Misc. case No. 14 of 1963 which was filed by the iudgment debtor in the following circumstances: The appellants obtained a money decree on 24-6-59 from the Court of 1st Subordinate Judge. Patna against Dhan-raj Mill (Pvt.) Ltd. for Rs. 89,632.50 paise and as cost Rs. 2,724.88 paise. When the decree holders filed execution proceeding in order to execute the decree, an objection was filed by the judgment-deb-tor-company mainly on the following two grounds:

(2.) Learned counsel appearing on behalf of the decree-holder-appellants has attacked the finding of the court below only on point No. 1, According to learned counsel, the decree is not void but it is voidable at the instance of the liquidator. It not being a nullity the executing court cannot go behind the decree. On the other hand, learned counsel appearing on behalf of the respondent company, has urged that obtaining leave of the court is a condition precedent and if leave is not obtained the judgment and the decree are void and they are nullity.

(3.) To appreciate the main points Involved in this case it will be necessary to refer to Section 446 of the Indian Companies Act. 1956 (Act No. I of 1956). The relevant portion of the section reads as follows :--