P. N. Bakshi, J. - (1.) THIS is a decree-holder's Execution Second Appeal, in Company Case No. 24 of 1951 the Official Liquidator obtained a decree from this Court against Nand Lai Khanna for a amount of Rs. 1875/-. An application for the execution of the decree was made by the official Liquidator in the court of Munsif City, Kanpur being Execution No. 354 of 1952. Several objections were filed by the judgment-debtor. These objections were rejected by the Munsif City, Kanpur vide judgment dated 18th January, 1964. Thereafter execution first appeal was filed by Sri Khanna which has been allowed by the Additional Fourth Civil Judge, Kanpur On 6th May, 1965. Hence this Execution Second Appeal by the decree-holder.
(2.) IT appears that the first execution application was moved on 2nd November, 1960 within six years of the passing of the decree by the High Court. Subsequently two more execution applications were filed and numbered as 239 of 1961 and 334 of 1962. The contention raised on behalf of judgment-debtor is that the first execution application which has been filed in the court of the Munsif City, Kanpur is not legally maintainable. IT is argued that after the High Court had passed the decree, it was incumbent upon the decree-holder to make an application to this Court for transfer of the decree to the execution court and without following this procedure the application could not be directly filed in the court of the Munsif City, Kanpur for execution. In order to deal with this submission it would be relevant to consider certain sections of the Indian Companies Act, 1913 (VIII of 1913). Section 199 of the said Act runs at follows :- "All orders made by a Court under this Act may be enforced in the same manner in which decrees of such Court in any suit pending therein may be enforced." A reading of this section indicates that the order of the High Court in liquidation proceedings shall be treated as decree of the court. Section 200 of the Indian Companies Act runs as under :- "Any order made by a Court for or in the course of the winding up of a company shall be enforced in any place in India other than that in which such Court is situate, by the Court that would have had jurisdiction in respect of such company if the registered office of the company had been situate at such other place, and in the same manner in all respects as if such order had been made by the Court that is hereby required to enforce the same." This section clearly indicates that the decree passed by the Court in liquidation proceedings can be enforced in any place in India by a Court having jurisdiction to do so. Section 201 of the said Act runs thus :- "Where any order made by one Court is to be enforced by another Court, a certified copy of the order as made shall be produced to the proper officer of the Court required 10 enforce the same, and the production of such certified copy shall be sufficient evidence of such order having been made ; and thereupon the last mentioned Court shall take the requisite steps in the matter for enforcing the order, in the same manner as if it were the order of the Court enforcing the same." This section lays down that in order to enforce the order in execution proceedings a certified copy of such order has to be produced before the Court where the execution application is made. On reading of these three sections together three can be no doubt that an order passed in liquidation proceedings is in law deemed to be a decree and the said decree can be executed in any place in India by making of an application for execution accompanied by a certified copy of the order of the Court evidencing the passing of such an order in liquidation proceedings. Learned counsel for the judgment-debtor has submitted that in order to proceed with the execution of the decree of the High Court passed in liquidation proceedings a mere production of the certified copy of the order was not enough. He contends that an application for transfer of the decree should have been made under Section 39 of the Civil Procedure Code and that the decree should have been transferred by order of the High Court to the Court of the Munsif City, Kanpur. Reliance has also been placed upon Order XXI Rule 6 CPC with regard to the procedure to be followed where Court desires that its own decree may be executed by another Court. In my opinion this contention cannot be accepted for several reasons. Section 200 of the Companies Act provides that a decree of the High Court can be executed by any Court in India. Section 201 authorises filing of a certified copy of the order before the execution court. It is clearly laid down therein that the Traduction of a certified copy of the order would be sufficient evidence that such order has in fact been made. The satisfaction of the Court, therefore, as to the existence of the order can be arrived at by the Court on filing of a certified copy. This is a special procedure that has been provided under the Companies Act. A perusal of Order XX! Rule 6 CPC indicates that a Court sending the decree for execution has to send along with it a copy of the decree, a non satisfaction certificate, and a copy of the order for the execution of the decree. This is the ordinary procedure prescribed under the Code for execution of the decree but these are not the requirements of law as envisaged under the provisions of the India Companies Act mentioned above. No authority is needed for the proposition that when a special procedure is prescribed is an Act, the special procedure has to be adopted since it overrides the general provisions of law. As such I am of the view that it was not necessary for the decree holder to have made an application to the High Court for transfer of the decree to the Court of Munsif City, Kanpur for execution and that the application which has been filed directly in the Court of the Munsif City, Kanpur was maintainable in law. I am fortified in my conclusion by a Division Bench decision of Sindh High Court in Official Liquidator v. Narain Deomal, AIR 1943 Sindh 89, wherein it has been held as follows :- "An order passed by a Court under the Companies Act can be enforced by another Court on a mere production of a certified copy of the order. The order need not be transferred for execution under Section 39, Civil Procedure Code."
(3.) EVEN if it is assumed for purposes of argument that the Civil Procedure Code would apply and an application for transfer ought to have been made by the decree-holder to the High Court and a formal order of transfer should have been passed authorising the Munsif City, Kanpur to execute the decree, still the judgment debtor cannot be granted any relief on this ground. Such assumed error, could only affect the procedure prescribed for execution and not the substantive rights of the parties. Section 99 of the Civil Procedure Code lays down that no decree shall be reversed or modified for error or irregularity not affecting merits of the case. At the most this would amount to irregularity which would be curable under Section 99 CPC. Further after the enforcement of the Civil Procedure Amendment Act, 1976, Section 99-A has been added which runs as follows : "Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order unless such error, defect or irregularity has prejudicially affected the decision of the case" Nothing has been brought to my notice by the learned counsel to show that any prejudice has been caused to the judgment-debtor on account of this assumed procedure not being followed for the execution of the aforesaid decree. On this ground also the judgment-debtor would be disentitled to any relief.;