Bimal Chandra Basak, J. - (1.) This appeal is directed against a judgment order passed by the learned Company Judge in an application under Section 440, 535 and 578 of the Companies Act, 1956, (hereinafter referred to as the said Act). The facts of this ease are as follows: The subject matter of this suit is a room in the demarcated northern portions of premises No. 143/1/1, Cotton Street, Calcutta (hereinafter referred to as the said premises). On or about 13th March, 1983 the said premises was purchased in the name of the plaintiff's relative. On 3rd May, 1944 Ajit Kishore Maitra, the defendant No. 1 in suit No 961 of 1959, the then Shebait of the plaintiff, executed a deed of lease on the said premises in favour of one Bhagwandas Kalla and others for a period of 90 years. On 26th June, 1947 Kallas transferred the said leasehold interest to Messrs. Kalla Properties and Industrial Corporation Ltd., the defendant No. 6 in the said Suit No. 961 of 1953. On or about 24th August, 1950 the said Messrs. Kalla Properties and Industrial Corporation Limited purported to mortgage the said leasehold interest of the said premises to Jagannath Roy and Baluram Ray the defendants Nos. 7 and 8 in the said Suit No. 961 of 1959. By an indenture dated the 11th May, 1953 the said Kalla Properties and Industrial Corporation Limited purported to grant a sub-lease of the said premises to one Dhonraj Purohit who was defendant No. 3 in the said Suit No. 961 of 1959. Sometime in 1954 the said Dhonraj Purohit purported to assign the said sub-lease of the said premises in favour of one Asharam Swami, the defendant No. 10 in the said Suit No. 961 of 1959 Thereafter the said Asharam Swami purported to grant a sub-lease to Bholalal, the defendant No. 11 in the said Suit No 961 of 195K The said BhoIalaI and his son purported to assign the sub-lease in favour of Messrs. Latiyal Agricultural and Industrial Private Limited, the defendant No. 12 in the said Suit No. 961 of 1&59. Messrs. Latiyal Agricultural and Industrial Private Limited is the company which has gone into liquidation and in respect of which this application has been made. In July, 1959 the Deity filed the suit being Suit No. 961 of 1959 in this Court praying for following reliefs. "For leave under Clause 12 of the Letters Patent, Leave under Order 2, Rule 4 of the Civil Procedure Code, Declaration that the lease, dated the 3rd May, 1944 in respect of the premises No. 143/1/1, Cotton Street, Calcutta by the defendant No. 1 is invalid, inoperative and not binding in law and no title passed to the lessee. Decree directing restoration of possession of premises No. 143/1/1, Cotton Street, Calcutta to the plaintiff Deaths, declaration that the agreement dated 11th May 1953 granting sub-lease by the defendant No. 6 to the defendant No. 9 is invalid, inoperative and not binding in law and no title or interest passed to the said defendant No. 9 for a declaration that the sub-lease granted by the defendant No. 9 in favour of the defendant No. 10 and by the defendant No. 10 in favour of the defendant No. 12 are all invalid inoperative and not binding in law; cancellation of the said lease, dated 3rd May, 1944, Conveyance, dated 25th June, 1947 mortgage, dated 24th August, 1950, Agreement, dated the 8th June, 1964, Agreement, dated 11th May, 1963, Agreement, dated the 8th June, 1954 and Agreement, dated 8th August, 1957; an enquiry into mesne profits in respect of the said properties and decree for the amount found payable on such enquiry; Removal of the defendant No. 1 from the shebaitship and the framing of a Scheme for the proper maintenance of the deb-sheba of the plaintiff deity; injunction, Receiver, enquiries; and accounts,, interests, costs and for further or other reliefs."
(2.) At that time the said company has been collecting rents, issues and profits of the said premises. Thereafter, an advocate of this court was appointed Receiver in respect of the said premises by an order, dated 14th September, 1959. On 21st April, 1966 an winding up order was made in respect of the said company. On 6th July 1971 there was a decree passed by the consent of the parties in the said suit No. 961 of 1959. The company (in liquidation) represented by the Official Liquidator was defendant No. 2 therein. The Official Liquidator was given leave to compromise the suit upon the terms of settlement set out in the schedule. The said term of settlement provided inter alia, as follows : "It is declared that the lease, dated the 3rd May, 1944 granted by the defendant No. 1 in favor of Bhagwandas Kalla since deceased and the defendants Nos. 4 and 5 in respect of preemies No 143/1/1, Cotton Street, (demarcated northern portion) stool cancelled with effect from June 1965." "It is declared that the defendants Nos. 3, 3A, 3B, 4, 5, 6, 9, 10, 11, 12 and 13 have no right title or interest in the said premises". "Sri Kamalesh Banerjee, Receiver appointed herein shall forthwith make over possession of the said premises to the plaintiff No.2 upon making over possession and upon payment of the amounts mentioned Clauses 4 and 5 hereunder the Receiver shall stand discharged the Receiver shall file his final account' within six months".
(3.) The plaintiff started execution proceeding for eviction under the decree in Suit No. 961 of 1959. In respect of another proceedings there was an appeal being No. 26 of 1970 where setting aside the Lower Court's, order in execution, the Appeal Court held that the decree was not a decree for delivery of possession which could he executed. Following the same in the appeal preferred by the appellant herein in such execution case, appeal was allowed and Order passed in execution was set aside and execution application was dismissed. However, it was made clear that the judgment would not prejudice the plaintiff from instituting or taking any other action against the appellants for the purpose of recovery of possession of the disputed room in accordance with law.;