HOPE MILLS LTD Vs. VITHALDAS PRANJIVANDAS

JUDGEMENT

(1.) On the 3 September 1909 the plaintiffs applied for execution of an ex parte decree obtained by them against the first defendant Company on the 15 of November 1904. On the 20 September 1909 a rule was granted calling on the plaintiffs to show cause why the decree should not be set aside on the ground that the summons in this suit had not been duly served on the 1 defendant.

(2.) The learned Judge held that the service of summons on the defendant Company was regulated by Section 89 of the Companies Act 1882, and not by Section 436 of the Civil Procedure Code, 1882, and that the summons had not been duly served. Section 436 does not apply to companies registered, as is the first defendant Company, under the Companies Act, but to the more uncommon class of companies authorised to sue or to be sued in the name of an officer or trustee, for example, the Comptoir National D escompte de Paris, which under theauthority of Act VII of 1890 may be sued in the name of its Chief Manager.

(3.) It is clear that the service of the summons did not comply with the provisions of Section 89 of the Companies Act, 1882. We therefore, agree with the learned Judge that the summons was not duly served. It is, however, contended that the defendant Company's application is too late. If it is governed by Art. 164 of the Limitation Act of 1877 it is in time having been made within thirty days from the date of execution of process for the enforcement of the judgment. It is, however, out of time if it is governed by the Limitation Act of 1908 not having been made within thirty days of the date when the defendant Company first had knowledge of the judgment.