Decided on December 11,1972

Zehra Bee Appellant
Reliable Corporation Pvt Ltd Respondents


Chennakesav Reddy, J. - (1.) This civil revision petition arises out of the order of the Principal District Munsiff, Chittor, in I.A. No. 1169/70 in O.S. No. 95/62 dismissing the application filed by the petitioner under Order 1, Rule 10, Civil Procedure Code, for adding the official liquidator, High Court of Mysore at Bangalore as a defendant in the suit in place of the company, the Reliable Corporation Private Ltd., Bangalore.
(2.) The simple but subtle question that is raised for decision in this revision petition is whether under Section 446 of the Companies Act, 1956 (1 of 1956) (hereinafter referred to as " the Act"), leave of the winding-up court is a condition precedent to the institution of any suit or legal proceedings against a company ordered to be wound up and whether failure to obtain such leave is fatal to the proceedings.
(3.) The relevant facts may be briefly stated. The petitioner filed the suit against Reliable Corporation Private Ltd., Bangalore, for a declaration of her title and for possession of the plaint schedule properties. The Reliable Corporation was wound up by the High Court of Mysore on July 10, 1970, and the official liquidator attached to the High Court of Mysore was appointed as the official liquidator of the said company. The petitioner then filed an application for impleading the official liquidator as defendant in the suit in place of the wound-up company. The official liquidator opposed the application and contended that in view of the provisions of Section 446 of the Act no suit or other legal proceedings shall be commenced or if pending at the date of the winding-up order shall be proceeded against the company except by the leave of the court. Since the present application was filed in August, 1970, after the winding-up order, it is void even at its inception and in any case cannot be proceeded with except with the leave of the court. It was, therefore, submitted that the petition should be dismissed in limine. The learned district munsiff dismissed the application. The learned munsiff held that since the petitioner had not obtained the leave of the court for filing the application, the application itself was not maintainable. Therefore, this revision petition is filed aggrieved against the said order.;

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