| Citation(s) |
|---|
| 1965 SLG 4757 = 1965 SLD 4757 = 1965 PLD 418 |
Dacca High Court
Civil Rule No. 815 of 1962, decided on 25th November 1964.
Presented By: K. M. Hasan, J
Sayedal Haq v. The Official Liquidator, Noakhali Union Batik Ltd. 13 D L R 481 and Benaras Bank Ltd. v. Sashibhushan Misra A I R 1948 Pat. 398 rel. Milawa Ram v. People's Bank of India A I R 1916 Lah. 24 ref. M. M. G. Hafez for Petitioner. M. A. Aziz for the Opposite-Party.
Civil Rule No. 815 of 1962, decided on 25th November 1964.
Presented By: K. M. Hasan, J
Sayedal Haq v. The Official Liquidator, Noakhali Union Batik Ltd. 13 D L R 481 and Benaras Bank Ltd. v. Sashibhushan Misra A I R 1948 Pat. 398 rel. Milawa Ram v. People's Bank of India A I R 1916 Lah. 24 ref. M. M. G. Hafez for Petitioner. M. A. Aziz for the Opposite-Party.
OFFICIAL LIQUIDATOR, BANK OF CALCUTTA LTD. (IN LIQUIDATION)-Petitioner
VERSUS
JYOTIRMOYEE SEN-Opposite-Party
Law: Companies Act (VII of 1913)
Section: 171
Law: Civil Procedure Code (V of 1908)
Section: 13
Companies Act (VII of 1913), S. 171 & Civil Procedure Code (V of 1908), O. IX, r. 13-Proceedings under O. IX, r. 13 not independent `legal proceeding' as contemplated under S. 171, Companies Act, 1913-Ex parte rent-decree obtained by official liquidator of company-Application by defendant for setting aside of ex parte decree does not require previous permission from Court. JUDGMENT An ex parte rent decree was obtained on 2nd January 1959, against the opposite-party by the petitioner where upon the opposite-party filed an application under order IX, in the 13 of the Code of Civil Procedure op 21st October 1960, for setting aside the ex parte decree and restoring the suit to file, alleging, inter alia, that the ex parte decree was obtained by fraud and suppressing summons for which she had suffered substantial loss and that due to the fraud practised upon her she could not know of the suit or of the ex parte decree earlier than 31st August 1960, and that she came to know for the first time on that date namely on 31st August 1960 from a letter, Exh. 1, which was received by her on that date. The decree-holder opposed the application under Order IX, rule 13 of the Code of Civil Procedure contending, inter alia, that the application was not signed by the petitioner, that no fraud was practised that she wag aware of the proceedings of the suit and that the application was barred by limitation. The learned Munsif on consideration of the evidence was of the opinion that due to the fraud and suppression of summons the petitioner could not know of the ex parte decree earlier than 31st August 1960 and appear in the suit and that she had suffered substantial loss inasmuch as a property worth Rs. 30,000,00 (sic) was sold at a nominal price of Rs. 100.00 only and in this view of the matter allowed the application, set aside the ex parte decree and restored the suit to file. Hence the present Rule at the instance of the decree-holder. The learned Advocate appearing for the petitioner before me has pressed only 3 grounds. His first ground is that in view of the provision of section 171 of the Companies Act the petitioner was to take…