- (1.) The revision petition is brought at the instance of the company against the order in execution of a money decree obtained under Order 37 CPC. The decree was passed for money on a contract of supply to the company on 30.08.1990. The defendant-company had appealed on 16.05.1991 with an application to condone the delay. Even before the appeal was filed before the Appellate Court, it would appear the decree holder had sought for winding up of the company making reference to the unsatisfied decree claim for more than the statutory period by moving High Court of judicature at Calcutta. The court had admitted the petition on 17.07.1991. Against the order of admission, the judgment debtor company had preferred Letters Patent Appeal where Appellate Court had directed the amount to be deposited. Admittedly, the amount was not deposited, as directed. Simultaneously in the appeal filed with an application to condone the delay, the judgment debtor company had sought for stay of execution and the court directed the amount to be paid as the condition for grant of stay. Again the amount had not been deposited. The appeal came to be dismissed on 27.01.1997 declining to condone the delay in preferring the appeal.
(2.) The decree holder filed an execution petition on 29.05.2004 which on the face of it was more than 12 years from the date of the decree that was granted on 30.08.1990. There had been an objection regarding the issue of limitation but executing court dismissed the execution petition on the ground that there had been winding up proceedings before the High Court of judicature at Calcutta and, therefore, execution petition could not be prosecuted without permission of the High Court. The decree holder withdrew the winding up petition filed before the Calcutta High Court on 28.08.2006 and filed a fresh execution petition on 23.10.2006 which was just over 16 years after the institution of the suit. The petitioner had stated, while seeking for attachment of the property of the Managing Director of the company that the company was a closely-held company with two directors, namely, the Managing Director Mr. Neeraj Bhardwaj and his wife being Director and holding 50% share each. The petitioner had founded the justification for proceeding against the assets of the director on a plea that the director had committed fraud by running away from execution process by filing an appeal and not complying with the condition for stay and similarly filing an appeal against the company court judgment and not complying with directions for making the payment, as directed to be done when the company court had admitted the winding up petition.
(3.) Since the execution process was sought against the personal assets of the director of the company, the objection was taken predictably on the ground that there was no decree personally against the director and hence he would not be personally liable. His own personal property could not be, therefore, proceeded against. It was the further objection that the execution petition itself was barred by limitation, for, after decree was passed on 30.08.1990, there never was any fetter for the decree holder to levy execution on account of the fact that the Appellate Court's direction for conditional stay had not been complied with and there was no stay operating against the company for proceeding for recoveries. Similarly, the process in winding up did not proceed further when first an order for payment had not been complied with and the execution petition itself need not have been withdrawn. There was also an objection pointed out by the judgment debtor that mere filing of winding up itself did not constitute any bar and the assets had not been vested with the official liquidator and even the order passed by the executing court at the first stage that permission had not been granted by the company court was erroneous. There was no permission necessary and if the decree holder had not sought for execution within a period of 12 years, the petition could not be sustained.;