TMI Blog1952 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act and had its registered office at Madras. While the suit was pending, the company was wound up by the Madras High Court in O.P. No. 5 of 1939 of that Court on 16th February, 1939. A liquidator was appointed to wind up the affairs of the company. On the application of the plaintiffs, the liquidator was impleaded as additional defendant 2 in the case on 17th February, 1940. The company had at Thenmala in Travancore a match factory situated in a property about 25 acres in extent belonging to Government which was taken on Kuthagapailam by the company. With the approval of the Madras High Court, the liquidator sold this factory with the leasehold interest and the buildings and machinery to one Shamsuddin Rowther on 9th May, 1940, corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order. It was at first filed as a civil miscellaneous appeal but was subsequently converted into a revision petition. It has to be observed at the outset that the dispute in this case being one between the decreeholder and the representative in interest of defendant 4 and relating to the execution of the decree, the order of the court below is one coming under section 46 of the Civil Procedure Code and has got the force of a decree and is, therefore, appealable. But since the appeal would lie to this court and since the matter has come up before a Division Bench of this court, we do not propose to dismiss the revision petition on the ground that it is not maintainable. Coming to the merits of the petition, the argument advanced on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when a person is adjudicated insolvent all his assets vest in the official receiver. The difference between the effect of winding up and that of bankruptcy is pointed out by Sir G. Mellish L.J. in In re Oriental Inland Steam Company: ex parts Scinde Railway Company. His Lordship observes thus: "Winding up differs from bankruptcy in this respect, that in bankruptcy the whole estate, both legal and beneficial, is taken out of the bankrupt, and is vested in his trustees or assignees, whereas in a winding up the legal estate still remains in the company." This is what Lord Davey says in New Zealand Loan and Mercantile Agency Company Limited v. Christina Morrison: " there is a material distinction between the effect of ban krup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the question does not arise for consideration in the present case. In this case the official liquidator, with the authority of the winding up court, sold the factory with its site, buildings and machinery to defendant 4 before the date of the attachment before judgment. Therefore, the only question for consideration is whether he had authority to effect the sale and if so whether the sale will be recognised as valid by the Travancore court. It is not disputed that if the company was not wound up, its board of directors could transfer the assets of the company including immovable properties wherever they are situated. The effect of winding up the company is only to put the official liquidator in the place of the board of directors. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take effect as against the sale. Moreover, the plaintiffs in this case recognised the status of defendant 2 as the representative of the company by impleading him as additional defendant in the case. The petition, Exhibit V, filed by plaintiff 2 for impleading the official liquidator shows that the former accepted the validity of the winding up order passed by the Madras High Court. Therefore, if he had any objection to the sale of the property by the official liquidator, he ought to have moved the winding up court itself. He could have also proved his claim in the winding up court. After having accepted the validity of the winding up proceedings it does not lie in him to contend that the liquidator had no authority to execute the sale de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability to the case in hand. In the first place it was a case of-bankruptcy. Secondly, the English court was moved for an order giving the curatoeur authority to sell the property. In this case the liquidator appointed by the Madras High Court did not move the Travancore court for an order authorising him to sell the property. But the question really depends upon the jurisdiction of the Madras High Court to authorise the liquidator to effect a sale of property situated in Travancore. We find no reason to hold that the Madras High Court had no such jurisdiction. No question of conflict of jurisdiction arises in this case. There was no attempt by the Travancore court to wind up the company. If winding up proceedings were started in Travanco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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