SARJOO PROSAD, C. J. - (1.) THESE appeals arise out of proceedings under sec. 235 of the Indian Companies Act (Act VII of 1913, hereinafter called The Companies Act) and are directed against the order passed by this Court calling upon the appellant to repay certain sums of money which he has been found to have illegally appropriated out of the assets of the Banking Company.
(2.) THE first question which arises is whether Special Appeal No. 5 of 1960 is maintainable. THE learned counsel for the respondent the Official Liquidator, Pareek Commercial Bank Ltd. , contends that under sec. 45 N of the Banking Companies Act, 1949 (Act X of 1949 as amended-hereinafter called the Banking Act) an appeal is provided against an order or decision of the High Court in a civil proceeding only when the amount or value of the subject-matter of the claim exceeds Rs. 5,000/ -. In this case the amount involved is much below Rs. 5,000/- and therefore, no appeal would lie. Mr. Chand Mal for the appellant asserts that the appeal is maintainable and sec. 45 N of the Banking Companies Act, has no application to this case. He relies upon sec. 202 of the Companies Act and sec. 18 of Rajasthan High Court ` Ordinance in support of his contention that an order passed under sec. 235 of the Companies Act being an order made in the course of the winding up proceedings is appealable and that the inhibition of sec. 45 N of the Banking Act cannot be invoked to defeat the right of appeal. THE learned counsel contends that proceedings under sec. 235 of the Companies Act are appealable as a matter of course under sec. 202 of the said Act. Sec. 235 provides that where in the course of winding up of a company it appears that any person who has taken part in the formation or promotion of the company or any past or present director, manager or liquidator, or any officer of the company has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of the liquidator or any creditor or contributory examine into the conduct of the person concerned and then compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the Court thinks just. THE order under this section can be passed notwithstanding the fact that the offence is one for which the officer is criminally responsible. Sec. 202 of the Companies Act provides for rehearing of and appeals from, any order or decision made or given in the matter of the winding up of a company by the Court. Appeals in such cases lie in the same manner and subject to the same conditions to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction. It is, therefore, claimed that by virtue of sec. 202 of the Companies Act read with sec. 18 of the Rajasthan High Court ` Ordinance an appeal does lie against the order of a Single Judge to a Division Bench of this Court. THE learned counsel for the respondent, Liquidator, however, submits that the right of appeal under sec. 202 of the Companies Act must be read subject to the special provisions under the Banking Act which have application to the case. Part III A of the Banking Act makes special provisions for speedy disposal of winding up proceedings in cases relating to Banking Companies. Sec. 45-A of the Banking Act lays down that the provisions of this Part and the rules made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in the Companies Act, or the Code of Civil Procedure, or the Code of Criminal Procedure or any other law for the time being in force. THE provisions of this part have therefore an overriding effect and will prevail against any other law if the provisions of that law are found to be inconsistent. Now sec. 45n of the Banking Act further says that where an application is made to the High Court under sec. 235 of the Companies Act against any promotor, director, manager, liquidator or officer of a banking company for repayment or restoration or any money or property and the applicant makes out a prima facie case against such person, the High Court shall make an order against such person to repay and restore the money or property unless he proves that he is not liable to make the repayment or restoration either wholly or in part. We need not refer to the other parts of the section, except sub-sec. (2) which provides also for an order of attachment in appropriate cases. Obviously on the authority of the section when an application under sec. 235 of the Companies Act is made to the court, the court acts under sec. 45 H of the Companies Act and parses appropriate orders. It has to follow the procedure which is laid down in that section in order to come to a finding whether the money or property is repayable or liable to be restored by the person against whom the application has been made. THE order passed under the provisions of this law would be necessarily subject to the restriction provided in sec. 45 N of the Banking Act as to the right of appeal. As already shown this section does not permit an appeal from any order or decision of the High Court in a civil proceeding under this Act when the amount or value of the subject-matter of the claim does not exceed Rs. 5,000/ -. It follows, therefore, that the appeal is not maintainable. THE contention of Mr. Chand Mal that he is entitled to a right of appeal under sec. 202 of the Companies Act read with sec. 18 of the Rajasthan High Court ` Ordinance therefore, cannot be sustained. THE provisions of the Banking Act in Part III-A of the Act as pointed out earlier over-ride those other provisions. The next contention of Mr. Chand Mal is that even if sec. 45 N of the Banking Act is held to apply, his right of appeal vested when the winding up proceedings started in April, 1952 and since part III A of the Act came into operation by virtue of an amendment in 1953 the provisions of that part cannot affect him. We do not think that there is any substance in this contention for the obvious reason that the applications under sec. 235 of the Companies Act were filed in 1957 long after the operation of part III A of the Banking Act. Prior to that there was no proceeding under sec. 23 5 of the Companies Act and therefore, there was no question of appeal against any such order passed in that proceeding. Mr. Chand Mal agrees that the order in question was in the course of winding up of the company and therefore, it must relate back to the stage when the proceedings for winding up the Bank were instituted. This contention cannot prevail. The winding-up proceeding might have started much earlier but the material point of time is when the application under sec. 235 of the Companies Act was actually filed. It is only that point of time which determines the right of appeal and if at that stage part III A of the Banking Act had already come into force then there is no reason why the provisions of that Act should not govern this case. The whole objection of introducing that part was to expedite the disposal of winding up proceedings in cases of banking companies. Lastly Mr. Chandmal contends that the proceedings under sec. 235 of the Companies Act read with Sec. 45h of the Banking Act are not civil proceedings and therefore, the application of sec. 45h of the Banking Act should be ruled out. Sec. 45n ofcourse applies to appeals from any order or decision of the High Court in civil proceedings. Mr. Chand Mal contends that it is not a civil proceedings but some thing in the nature of executive or domestic proceedings and has referred to various cases on that point. In Dehradun M. E. T. Co. Vs. Hensraj (1) the proceedings in question were characterised as domestic proceedings between the Company and its officers. In Official Liquidator Vs. Liaqt Husein (2) the question was of furnishing security by the official liquidator and it was incidentally observed that such proceeding cannot be said to be a suit or other legal proceedings within the meaning of sec. 280 of the Companies Act. In I. L. R. 17 Allahabad-228 the order was under sec. 214 of the Indian Companies Act, 1882 which section was almost in similar terms as the present sec. 2 3 5 of the Indian Companies Act. It was observed there that the order passed under that section was not a decree or an order having the force of a decree and consequently no ad valorem court fee was payable. Incidentally also the learned Judge observed that the proceedings leading up to such an order, if it be an order, are not in the strict and technical sense judicial proceedings at all because no procedure is imposed at any stage, no person need be formally cited, no plaint need be filed, no party has a right to prove his case in such a way as he chooses. It is significant that in none of these cases it has been held that the proceedings under sec. 235 of the Companies Act are not civil proceedings. The whole object of introducing the word "civil proceedings" in the section was to distinguish between civil and criminal proceedings, because sub-sec. (2) says that the provision of sub-sec. (1) will apply notwithstanding that the offence is one for which the officer may be criminally responsible. We therefore think that the proceeding is in the nature of a civil proceeding whatever else may or may not be said in regard to its essential character. Tekchand J. in Kanshi Ram Vs. Hindustan National Bank (3) observed that winding up proceedings under the Companies Act are proceedings in a Court of civil jurisdiction, which can in appropriate cases make an order of attachment before judgment. There can be no doubt that the proceedings are civil proceedings and sec. 45 N of the Banking Act will apply. Mr. Chandmal further submits that in case it is held that sec. 45n applies then he is left with no remedy and there cannot be a civil suit to dispute the liability. That may be so. As we have said the whole object of introducing these provisions was to expedite the disposal of these proceedings and therefore, it is quite conceivable that the law did not provide for appeals in claims of small valuation. The petitioner had the advantage of the claim being examined by a Judge of this Court and that in itself is a sufficient safeguard against the possibility of any error. We accordingly hold that appeal No. 5 of 1960 is hit by sec. 45 N of the Banking Act and is not maintainable. The next question which arises is regarding the payment of court fee. It is contended on behalf of the respondent that ad valorem court fee should be paid on the values of the subject matter in appeal. The learned counsel wants to bring these memorandums of appeals under schedule I Art. (1) of the Court Fees Act. Therefore, according to the learned advocate a fixed court fee paid on the memorandums by the appellant is not adequate and further court fee should be demanded failing which the appeal should be held to be incompetent. As to what is the nature of the order passed in such cases is clear from sec. 45 of the Banking Act. Sub-sec. (1) of this section says that all orders made in any civil proceeding by a High Court may be enforced in the same manner in which decrees of such court made in any suit pending therein may be enforced. Both parties relied upon the language of this section in support of their respective contentions. The learned counsel for the respondents submits that since the order is enforceable as a decree it should be treated on the same footing as a decree passed by this Court and as such any appeal preferred against the decree is subject to the payment of ad valorem court fee under schedule I Art. (1) of the Court Fees Act. Mr. Chand Mal however, points out that it is merely an order passed by this Court under sec. 235 of the Companies Act read with sec. 45 A of the Banking Act and although it may be enforceable as a decree it is not a decree proprio vigore. Consequently it cannot fall under Art. (1) of schedule I of the Court Fees Act and no court Fee can be demanded on that basis. Appeals against any such order should be just in the same manner as any appeal from an order and we are inclined to agree with the latter contention. It may be observed that no rules have been framed on the point by this Court. It appears that in some courts e. g. in Madras there is a fixed amount of court fee payable in such cases. But so long as there is no such rule we have to consider whether the court fee already paid is sufficient on these appeals. There is a good deal of distinction between a decree, an order having the force of a decree, or an order which is simply enforceable as a decree. An order which is simply enforceable as a decree cannot be treated for purposes of appeal as a decree; it is per se an order. The distinction has been clearly brought out in Official Liquidator vs. M. U. Qureshi (4 ). This decision was given in an appeal presented under sec. 202 of the Companies Act. In that case it was held that there is a distinction both real and practical, and not merely artificial between an order that has by statute the force of a decree and an order that may be enforced in the same manner as a decree. In the former case where an order is given by statute the force of a decree, it is an order that proprio vigore stands as a decree whatever the consequence, whareas an order that may by statute be enforced as a decree is an order that becomes effective only when executed by the method by which a decree may be executed. It was further observed in that case that it is a well recognised rule of interpretation of statutes, that there is a presumption that the legislature means different things by different phraseology; and when it describes an order as having the force of a decree it must mean something different from the description of an order which may be enforced in the same manner as a decree. We find ourselves in respectful agreement with the above view. Accordingly it must be held that the order passed under sec. 235 of the Companies Act read with sec. 45 H of the Banking Act is not a decree within the meaning of schedule I Art. (1) of the Court Fees Act and we are doubtful whether such an order will fall under schedule II Art. (11) of the Court Fees Act. The order may be enforceable as a decree, but for purposes of appeals they have to be treated like any other order. In the circumstances, in the absence of any definite rule on the point, we have no option but to hold that the court fees paid by the appellant as in the case of any appeal from an order is sufficient. It must also to be borne in mind that a fiscal statute should be strictly construed and in case of, any doubt, the benefit thereof must go to the person sought to be made liable. . ;