Sinha, C.J. - (1.) The facts in this case are shortly as follows : Messrs Laxmi Spinning & Weaving Mills Ltd. (hereinafter referred to as the said company) is a company incorporated under the Indian Companies Act, 1913. On or about the 31st January, 1953, the company executed a first mortgage of its assets for Rs. 1,25,000 in favour of Shankarlal Agarwalla and Dinanath Agarwalla in the name of their firm of Bansidhar Shankerlal. On the 21st January, 1954, the company executed a second mortgage of its assets for Rs. 2,00,000 in favour of Shankarlal Agarwalla and Dinanath Agarwalla, in the name of their firm of Bansidhar Shankarlal. On the 25th November, 1954, a suit was filed for the enforcement of the said mortgages, being Suit No. 3365 of 1954 (Bansidhar Shankerlal v. Laxmi Spinning and Weaving Mitts Ltd.). In or about February, 1955, one Nathmal Bhojnagarwalla instituted a suit in this High Court against the company and the mortgagees, inter alia, for a declaration that the mortgages were void. On the 13th May, 1955, a preliminary mortgage decree was passed in Suit No. 3365 of 1954. On or about the 22nd August, 1955, an order was made by this High Court for winding up of the said company at the instance of the petitioning creditor, Satya Narain Jugal Kishore. In the winding up proceedings, an application was made by the said creditor for an order for examination of certain persons including the said Shankarlal Agarwalla under section 195 of the Indian Companies Act, 1913 (hereinafter referred to as the said Act). On the 31st July, 1957, an ex parte order was passed by the company court, inter alia, for examination of the appellant, Shankarlal Agarwalla under section 195 of the said Act. The said Shankarlal Agarwalla thereupon made an application for setting aside the said order. On the 14th September, 1961, Mitter J. made an order setting aside the said ex parte order dated 31st July, 1957. The relevant part of the order is as follows : " It is ordered by and with the consent of the parties without prejudice to the right, if any, of the official liquidator of the said company or any of the creditors including the said firm to make another application on the same grounds or on other grounds that the said order dated the thirty-first day of July in the year one thousand nine hundred and fifty-seven be and the same is hereby set aside, and it is further ordered that if such an application as aforesaid is made within one week from the date of the reopening of this court after the ensuing long vacation the costs of and incidental to this application to be taxed by the taxing officer of this court shall abide by the result of the application to be made as aforesaid and it is further ordered that in default of making such application as aforesaid within the time aforesaid the parties appearing as aforesaid do bear and pay their respective costs of and incidental to this application to be if necessary taxed by the taxing officer of this court and it is further ordered that the summons for examination already issued by this court be and the same are hereby abandoned."
(2.) In the meanwhile, on 16th November, 1960, Suit No. 301 "of 1955 instituted by Nathmal Bhojnagarwalla was dismissed by consent after sanction was granted to the liquidators to enter into a compromise for the payment of a certain sum of money to the plaintiff in the said suit. It might be mentioned here that in the liquidation proceedings two private liquidators were appointed as the joint liquidators. On the 25th November, 1961, the petitioning creditor, Satya Narayan Jugal Kishore, made another application for the examination of several persons including the said Shankarlal Agarwalla under Section 195 of the said Act. On 21st May, 1962, an ex parte order was made by the company court, inter alia, for the examination of the said Shankarlal Agarwalla under Section 195 of the said Act. Thereupon, the appropriate summons was issued and was served on the "said Shankarlal Agarwalla. A copy of the said order dated 21st May, 1962, is set out at page 77 of the paper-book. The order, inter alia, provided as follows: 1. That the persons mentioned in the schedule in the said order including the said Shankarlal Agarwalla be examined under Section 195 of the said Act concerning the trade, dealings, affairs and properties of the said company, such examination being held by the Registrar of this court or such other officers as he may appoint. 2. That the said persons do bring with them and produce any document or documents in their custody or power relating to the said company at the time of such examination. 3. Leave be granted to the applicant (Satya Narain Jugal Kishore) to attend with attorney and advocate to assist the Registrar or such other persons as he may appoint for the purpose of such examination. 4. That the examining officer be at liberty to appoint a stenographer and interpreter. 5. Leave be granted to the said applicant to obtain on payment of usual charges the copies of the proceedings before the said officer."
(3.) On 24th February, 1964, the said Shankarlal Agarwalla made an application before the company court for being represented and/or assisted by attorney and/or counsel at the examination. This application was contested by the petitioning creditor. On 11th March, 1964, the company court dismissed the application and the dismissal was without prejudice to the contention of Shankarlal Agarwalla that the order dated 21st May, 1962, was bad. On the 22nd April, 1964, the said Shankarlal Agarwalla made an application, inter alia, for the following orders : 1. That the ex parte order dated 21st May, 1962, be recalled and/or set aside and/or discharged. 2. In the alternative that the said ex parte order dated 21st May, 1962, be varied or modified. 3. In the alternative, the examination of the petitioner be limited to specified matters and or directions be given that no question may be asked which are directly or indirectly connected with the said mortgages mentioned above. 4. That the examination of the applicant may be held in open court before the learned judge taking company matters. 5. Leave be given to the applicant to be represented and/or assisted by attorney or by counsel or by advocate at the examination to be held in court.;