- (1.) This is an application for execution of the order passed by the Hon'ble Mr. Justice Murari Mohan Dutta and Hon'ble Mr. Justice A.K. Sarkar on 21st May, 1981 in Company Petition No. 274 of 1967. By the aforesaid order the Division Bench passed the following order:- "It is ordered that the order of trial Court dated the twenty fourth day of June in the year one thousand nine hundred and seventy be and the same is hereby set aside And it is further ordered that the affairs of the respondent Turner, Morrison & Co. Ltd., abovenamed and its subsidiaries being respondents Lodha Colliery Company (1920) Ltd., Shalimar Tar Products (1935) Ltd., Anglo Brothers Ltd. abovenamed be investigated by the Central Government in the manner laid down in Sections 237 to 251 of Companies Act, 1956 And it is further ordered that such investigation shall be for the period from January in the year one thousand nine hundred and seventy two and shall be started and completed by the Central Government as expeditiously as possible And it is ordered that the Registrar (Original Side) of this Court do within two months from the date hereof send a copy of this judgment to Ministry of Law Justice and company Affairs. Government of India And it is further ordered that all interim orders passed herein shall stand vacated And as other respondents abovenamed have not appeared at the hearing of this appeal And this Court does not think fit to make any order as to the costs of and incidental to this appeal."
(2.) Mrs. Mukherjee, learned Advocate for the decree holder submits that the said judgment of the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure. Mrs. Mukherjee submits that the dividend which was withheld is to be released under the said decree. Mrs. Mukherjee relies on a decision in the case of Peary Mohan Mookerjee v. Manohar Mookerjee, reported in AIR 1924 Cal 160 wherein it has been held as follows:- "According to the view now adopted in Bombay the word 'matter' in the definition means the actual subject-matter of the suit with reference to which some relief is sought, and the word 'right' means substantive rights of the parties which directly affect the relief to be granted or which, in the words of definition, relate to all or any of the matters in controversy. Tested from this point of view, there is really no room for dispute that the order under appeal is a decree. This view is supported by the decision of the Judicial Committee in Bhup Indar Bahadur v. Bijai Bahadur where Lord Hobhouse held that an adjudication that mesne profit were recoverable in respect of a defined period was in its nature a decree within the meaning of the Code. This is not inconsistent with the decision in Bharat Indu v. Yakub Hussain , and Ghuiusam Bibi v. Ahamadsa Rawther and is in accord with the view adopted in Kamini Debi v. Paramathanath . ft may be conceded that the legislature contemplated that ordinarily there should be one preliminary decree and one final decree in a suit; the preliminary decree ascertains what is to be done, while the final decree states the result achieved by means of the preliminary decree, But as observed by Pigott, J. in Yukub Hussain v. Bharat Indu there may be exceptions, and the case before us furnished an instance. Here the original suit was for removal of the Shebair, for cancellation of the judicial sale, and for recovery of the trust property The decree made in the suit has directed the removal of the shebait, and the cancellation of the sale subject to the investigation of a accounts to be rendered by the shebait in a supplementary proceeding. The order which has now been made is in essence a preliminary decree in the supplementary proceeding and will lead up to the final decree to be made therein. It is not essential that an adjudication should be covered by one of the specific cases of preliminary decrees mentioned in O. XX of the code in order that it may form the basis of a final decree, those cases are illustrations of preliminary decrees and help us in determining the true meaning of the definition of the term decree'. Whether the order made by the Judge possesses the qualities of a decree, preliminary or final or partly preliminary and partly final clearly depends upon its contents. We are of opinion that the order now under appeal is a decree and that the objection to the competency of the appeal cannot be sustained " Mrs. Mukherjee also relies upon a decision reported in AIR 1971 Mysore 350 and also another decision reported in AIR 1976 Gujarat 152 (Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi) . In the case reported in AIR 1976 Gujarat 152 it has been held as follows:- "2. Now the question is whether the order of the Court on the preliminary issue amounts to a decree, Section 2(2) of the Civil Procedure Code defines what a decree is. According to the said definition a decree is a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Now the learned trial Judge has held that the notice of eviction was defective and the plaintiff was not entitled to a relief for recovery of possession of the suit premises because of the defective notice. The learned Judge has held that the suit for eviction was not competent and maintainable. He further directed that the suit should proceed only with respect to the claim for monetary relief. Now, so far as the relief for possession is concerned there is a substantive decision or determination. The decision of the learned trial Judge on the point is clearly a final adjudication between the parties in respect of the suit for possession. The order of the learned trial Judge conclusively determines the rights of the parties on the question of eviction. The determination for the relief of possession is final and conclusive so far as the trial Court is concerned. The question whether the adjudication is a decree or not has to be determined with reference to the definition of decree given in Section 2 (2) of the Civil Procedure Code. The trial Court has undoubtedly adjudicated on the substantive rights of the parties with regard to the controversy for recovery of possession of the suit premises. The order of the trial Judge is clearly indicative of the fact that he has finally determined the issue relating to possession and there is formal expression of the said adjudication. It is true that the learned trial Judge has taken the view that only finding on the issue has been given by him and he has passed only a formal order and, therefore, no decree need be drawn as there had been no final disposal of the suit. There is obvious difference between a simple finding and a finding which terminates the suit. To determine the exact nature and extent of a finding reference to the definition of decree given in Section 2(2) of the Civil Procedure Code is essential. Merely because the trial Court heads his finding as an order is not determinative of its nature not his conclusion to that effect is conclusive. The question whether an order passed by a Court amounts to a decree or not has to be determined with reference to the definition of decreed given in Section 2(2) of the Civil Procedure Code and the test to be applied is whether there is a formal expression of adjudication, which as regards the Court expressing it. conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit. In the aforesaid view of mine I am supported by the decisions of the Madras High Court in V. Adinarayan Chetti v. Kopparam Narasinlia Chetti., ITR 54 Mad 337: AIR 1931 Mad 471 and Kasi v. Rm. A. R M V. Ramanathan Chettiar, (1947) 2 Mad LJ 523 . Whether an order passed by a Court is a decree or not cannot depend on the drawing up of a decree by the Court as formal drawing up of a decree is the duty of the Court vide Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 and Parashuram Rajaram Tiwari v. Hirabal Rajaram Tiwari, AIR 1957 Bom 59 . If a Court dies not draw up a decree it cannot be said that the order of the Court by which rights of the parties are finally adjudicated upon is not a decree. There can be more than one final decree in a suit where two or more causes of action are joined together. There is no provision in the Civil Procedure Code which prevents the Court from passing two final decrees, if the circumstances of the case so require, vide Fatmabai W/o. Rasim v. Abubaker Taramahmed, AIR 1946 Sind 58 . The present suit is a composit suit being a suit for possession and a suit for arrears of rent, and the issue between the parties with regard to possession of the suit premises is finally decided by the trial Court. Thus there is final adjudication on the issue of possession and this determination amounts to a decree within the meaning of Section 2(2) of the Civil Procedure Code. The impugned order of the learned Trial Judge refusing to draw up a decree, therefore, is erroneous and the same is set aside. It is directed that the trial Court should draw up a decree in pursuance of the judgment and decision passed by it with respect to the claim for possession of the suit premises." Mrs. Mukherjee relies upon the provisions of Section 634 of the Companies Act and submits that any order made by a Court under the Companies Act may be enforced in the same manner as a decree made by the Court in a Suit pending therein, Mrs. Mukherjee also relies on the provision of Section 2 of the Code of Civil Procedure and submits that the order passed by the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure Mrs. Mukherjee also relies on Section 36 of the Code of Civil Procedure which reads as follows:- "36. Application to orders - The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree), shall so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order)."
(3.) It is submitted by Mrs. Mukherjee that the present application for execution is for execution of the order of the Division Bench of this Court. It is further submitted by Mrs. Mukherjee that the period of limitation for enforcement of the decree is 12 yrs. and if the execution application has been filed within a period of 12 years, it would be within time Mrs. Mukherjee relies on several decisions, viz. 15 Company Cases 57, AIR 1953 Cal 610, AIR 1962 SC 403, 42 Company Cases 556, 44 Company Cases 173, AIR 1970 Bom 271 and 74 Company Cases 577.;