MOOLI DEVI Vs. PAREEK COMMERCIAL BANK LTD

JUDGEMENT

(1.) THIS special appeal from the judgment dated the 18th September, 1968 under Section 18 of the Rajasthan High Court Ordinance arises under the following circumstances. The respondent No. 1 in this appeal, the Pareek Commercial Bank Ltd. (hereinafter called the Bank) was ordered to be wound up on 31st July, 1952. The Official Liquidator obtained certain orders from this Court for the realisation of various sums of money from Vastulal Pareek, respondent No. 2 in this appeal, who was Chairman of the said bank. The execution petition, for execution of these orders was transferred to the Court of District Judge, Bikaner and certain properties were attached. Shrimati Mooli Devi who is the appellant before us, filed an objection petition under Order 21, Rule 58, Civil P. C. before the District Judge which was rejected on 17th December 1960. Thereafter she applied for leave to this Court to file suit under Order 21, Rule 63, Civil P. C. and such leave was granted on 11th December 1961. Shrimati Mooli Devi then filed petition No. 17/67 in this Court stating herself plaintiff and opposite parties as defendants and praying that the properties attached may be released from attachment and the attachment order passed by the District Judge be set aside. The controversy arose whether this application should be treated merely an application under Rule 729 (1) of the High Court Rules which were framed by this Court in exercise of the powers conferred on it under Section 45U of the Banking Companies Act (hereinafter called the Act). The Company Judge held that it was a plaint on which court -fee should be paid as provided under the Court -fees Act. The appeal by the appellant was dismissed by the Division Bench on 24th July, 1962 on the ground that it was premature. Thereafter the Company Judge rejected the applicationon the ground that court -fee had not been paid even after the expiry of three months' time granted to make up the deficiency in the court -fee. Again an appeal was preferred to the Division Bench and it was argued that the appellant's application was not a suit but was merely an application under Rule 729 of the High Court Rules. This argument was accepted by the Division Bench and the case was remanded for disposal according to law. On a review petition filed by the Bank it was ordered that the Bank had a right to argue before the Company Judge that mere application for setting aside the order was not maintainable and the appellant should have filed a suit under Order 21, Rule 63, Civil P. C. The Company Judge then decided that the appellant should have filed suit under Order 21, Rule 63, Civil P. C. and that the application was not maintainable. Against this order, this appeal has been filed.

(2.) THE first point that has been urged by learned counsel for the appellant is that because of the provisions contained in Section 45B of the Act, the appellant had no right to file an application, under Order 21, Rule 58, Civil P. C raising objections to the execution application before the District Judge and that the District Judge had no jurisdiction to entertain and decide such application and as such the application filed by the appellant before the District Judge under Order 21, Rule 58. Civil P. C. should be entirely ignored or treated as non -existent and for this reason it must be held that the provision for filing a suit con' tained in Order 21, Rule 63, Civil P. C, did not apply and the appellant has a right to file an application before the Company Judge for setting aside the order under the relevant provision of the High Court Rules.

(3.) SECTION 45B runs as follows : - -