- (1.) ON a difference of opinion between brothers Desai and Brij Mohan Lall, the following point of law was referred to a larger Bench for decision: "where a winding up order was made in respect of a company after it had obtained a decree in a suit instituted by it and after an appeal preferred by it against an order allowing defendant's objection under Section 47, Civil P. C. , had been decreed, can an application for review of the. aforesaid judgment of the appellate Court be made by the defendant without obtaining leave of the Company Court under Section 171, Companies Act (VII of 1913)?"
(2.) IT is not necessary to set out the facts in detail. All that we need mention is that the Calcutta national Bank Ltd. had brought a suit against Qudratulla and his son Rahmat Ali Fate-hulla for recovery of a large sum of money on the allegation that the principal debtor was the father and the son had guaranteed repayment of the debt. During the pendency of the suit the bank had applied for and had got certain aeroscraps attached before judgment. Rahmat Ali Fatehulla had claimed that those aeroscraps belonged to him exclusively and that he had been carrying on a separate business. The objection to attachment of the property was, however, dismissed. The learned Judge ultimately decreed the suit against the father but, on a finding that it had not been proved that the son was a guarantor, the suit against Rahmat Ali Fatehullah was dismissed. When in execution of the decree the bank proceeded to sell up the aeroscraps which had been attached Rahmat Ali Fatehullah filed an objection in the execution Court claiming the property to be his own. He also filed an application in the suit that, since the suit had been dismissed against him, the attachment before judgment stood discharged, as the property had belonged to him. Both these applications were disposed of by the same order, the decision being in favour of rahmat Ali Fatehullah. The bank filed an appeal which was allowed by a Bench of this Court. After the appeal was allowed an order was passed by the Calcutta High Court winding up the bank. Thereafter an application was filed for review, of which notice was issued, and, when it came up for hearing, a preliminary objection was taken that no review application could be filed without the sanction of the Company Judge under Section 171, Companies Act.
(3.) SECTION 171 provides that after an order for winding up is passed no suit or other legal proceeding shall be instituted or continued against the company without the permission of the company Judge.;