Dutta, J. - (1.) These appeals have been preferred by the tenant and the sub-tenants of the disputed property, being premises No. 81, Netaji Subhas Road, Calcutta, and they arise out of a proceeding for execution.
(2.) On August 10, 1966, Binani Properties P. Ltd., since dissolved, obtained a decree for eviction of the appellant from the disputed property on the grounds of default in payment of rent and reasonable requirement for building and rebuilding, in Suit No. 800 of 1959 filed in this court. The said decree was affirmed in Appeal No. 226 of 1966 on May 2, 1968. An application for leave to appeal to the Supreme Court was dismissed on July 22, 1968, and an application for special leave to the Supreme Court was also dismissed on November 4, 1968. The decree-holder, Binani Properties P. Ltd., put the said decree into execution on October 10, 1969. During the pendency of the said execution case, the company court by an order dated September 17, 1970, sanctioned a scheme of amalgamation of Binani Properties P. Ltd., the decree-holder, with Binani Investment Co. P. Ltd., and ordered for the transfer of the entire assets and properties of the Binani Properties P. Ltd. to Binani Investment Co. P. Ltd. under Section 394 of the Companies Act, 1956. It was further ordered that the latter company, that is, the transferee-company, would be entitled to continue all pending proceedings initiated by or in the name of Binani Properties P. Ltd, It was discovered by the Binani Investment Co, P. Ltd., with which the original decree-holder, Binani Properties P. Ltd., was amalgamated, that through mistake the disputed property, being the said premises No. 81, Netaji Subhas Road, Calcutta, was omitted to be included in the schedule of the order dated September 17, 1970, sanctioning the scheme of amalgamation. An application for rectification was moved and by an order dated April 10, 1973, the order of amalgamation was rectified by including the disputed property in the schedule of the said order. The application of the tenant-judgment-debtor praying for setting aside of the said order of rectification was dismissed on July 20, 1970.
(3.) Thereafter, it appears, the said Binani Investment Co. P. Ltd. was amalgamated with another company, namely, the respondent, the Metal Distributors Limited, by an order dated December 21, 1975, of the Bombay High Court under Section 394 of the Companies Act, 1956, w.e.f. January 1, 1975. At the time the said order of amalgamation was made by the Bombay High Court, an appeal was pending in this court preferred by the tenant-judgment-debtor against the order of execution dated November 20, 1970, made by S. C. Ghose J. on the application of the original decree-holder, Binani Properties P. Ltd. In the said appeal, the Metal Distributors Ltd. was added as a party. The said appeal was allowed by the appeal court by its order dated November 20, 1970 (sic). The appeal court set aside the order of S. C. Ghose J. dated November 20, 1970, and granted liberty to the Metal Distributors Ltd. to take steps for continuing the execution proceedings filed by the original decree-holder, Binani Properties P. Ltd., by substitution or otherwise. Thereafter, in terms of the order of the appeal court which was affirmed by the Supreme Court, the Metal Distributors Ltd. made an application before the executing court praying for continuing the execution proceedings. On February 6, 1970 (sic), S. C. Deb J. allowed the said application and granted leave to the Metal Distributors Ltd. to continue the execution proceedings without prejudice to the rights and contentions of the parties. The learned judge also gave directions for the filing of affidavits.;