NABIN KISHORI CHOUDHURANY Vs. JAGNESWAR SANYAL

JUDGEMENT

(1.) (In No. 66). This is an appeal on behalf of the Pabna Dhanabhandar Co. Ltd. (in liquidation) against the order of the Subordinate Judge of Pabna dated 18 September 1930 by which he disallowed an objection of the appellant to the assignment of a decree made by the said company in favour of the respondents. A preliminary objection has been raised to the hearing of this appeal. In order to understand the soundness or otherwise of the preliminary objection it is necessary to state a few salient facts. The Pabna Dhanabhandar Co. Ltd., had a decree against the judgment-debtor Nobinkishori Chaudhurani and another. The respondents had certain deposits in the company. On 5 June 1929 they conveyed the decree to Jagneswar Sanyal, the respondents to the present appeal. On 8th. July 1929 an application was made by one of the creditors of the bank for winding up. On 18 November 1929 the High Court, on its original side, passed the winding up order. On 5 July 1929 the respondents assignees applied to execute the decree. The petition for execution is to be found at pp. 35 and 37 of paper-book in M.A. 26 of 1931. The liquidators of the bank put in a petition of objection to the assignment (see p. 1 of paper book 66 of 1931) and a miscellaneous case was started. The objection in substance was that the transfer was a fraudulent preference and is not valid.

(2.) The Subordinate Judge negatives this objection of the liquidators and it is against that order that the present appeal has been brought. It is said that there is no appeal to this Court as the question arises between the decree-holder and his representative. The appellant contends that Section 47, Clause 3, Civil P.C., is wide enough to cover such a question and an appeal would therefore lie. The respondent has relied on several cases in support of the preliminary objection. There is a decision of Sir Lawrence Jenkins in the case of Magan Lal v. Doshi (1901) 25 Bom 631, where the learned Chief Justice of Bombay was of opinion that a question between the judgment-debtor and his representative is not a question between the party in suit and his representative within the meaning of Section 244 of the Code of 1882. A similar view has been taken by Banerjee, J., in Bhagabati V/s. Banwari Lal (1909) 31 All 82. On the other hand the appellant has relied on a decision of the Madras High Court in the case of Bommanapati V/s. Chintakunta (1903) 26 Mad 264 in support of the opposite view. It is not necessary to decide finally on the preliminary objection as \va are of opinion that the appeal should fail on the merits.

(3.) It appears that by a resolution of the share-holders and depositors of the company passed on 28 February 1926 it was resolved by the majority that if a depositor happens to be a debtor then the said sum may be set off and that the bank should not go into liquidation and that every attempt will be made to sell it. On 7 March 1926 there was another resolution in a special general meeting of the share-holders and depositors of the Pabna Dhanahhandar Co. Ltd., and it was resolved by a majority that any depositor shall be competent to have his dues set off against the debt of any debtor, and on 14 March 1926 at a meeting of the directors this resolution was confirmed. It is argued by the appellant that an attempt by the directors and depositors of making an arrangement or set-off can only be done under Section 153, Companies Act. This special procedure was not followed in the present case and that therefore the resolutions are ultra vires.