9911796707
TMI Blog1963 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... with section 171 read with section 232 of the Indian Companies Act. Learned judge in the court below passed an order declaring the sale to be void and the appeal is preferred against that order by the decreeholder auction-purchaser. The facts leading up to this dispute are these: The decreeholder obtained a mortgage decree on a mortgage executed by defendants Nos. 1 to 4 and the husbands of defendants Nos. 14 and 15 in 1934, for a sum of Rs. 7,600. After this mortgage, defendants Nos. 1 to 4 sold the equity of redemption to defendants Nos. 5 and 6 (half and half) with directions to redeem the mortgage. Defendants Nos. 7 to 11 in the suit were alienees of the half share of the equity of redemption sold to the sixth defendant. The fifth defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or other proceeding is instituted against the company after the order for winding up had been made. Section 232 of the Indian Companies Act (section 537 of the new Companies Act) declares any attachment or execution put in force without leave of the court after the company has been ordered to be wound up against the estate or effects of the company shall be void. There can be no dispute on the authorities that an execution proceeding for executing a mortgage decree over property in which the Hanuman Bank Ltd., the company in liquidation, had a puisne mortgage, would be a proceeding against the company within the meaning of section 171. The further question whether such an execution proceeding was one instituted against the estate or the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to him. This mortgage interest is certainly interest in immoveable property. By the sale of the equity of redemption this interest of the puisne mortgagee is extinguished. Could it be said in such circumstances that by the sale of the equity of redemption at the instance of the first mortgagee the estate of the puisne mortgagee is being proceeded against ? Though it might appear somewhat farfetched, the sale of the equity of redemption can be regarded as a sale of the estate of the puisne mortgagee also. The decisions relied upon by Kuppuswami Aiyar J. for holding that a puisne mortgagee was also a debtor of the first mortgagee were all decisions which arose on the interpretation of the term "debt" under the Madras Act IV of 1938. Strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the sale for enabling them to save the estate of the company in liquidation. The question is whether this conduct would amount to waiver of leave of court enjoined by section 171. The lower court has dealt with this question on the ground of estoppel. But it does not really fall under that category of legal defences. If a party is enabled to waive a pre-requisite to the validity of a proceeding, just as a statutory notice, there is no question of estoppel against that party. The protection given by the statutory requirement may be waived by the party unless some principle like public policy is involved. It is established at least in English law, no decision of Indian courts having been brought to our notice, that the requirement as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liquidator or by the company of the requirement as to leave, the resulting sale or attachment shall be void. But it could not govern the operation of a case where either leave was obtained or the want of leave was validly waived by the liquidator of the company. In this view, the provisions of section 232 would not apply to this case. We are of opinion, differing from the learned judge in the lower court, that there was effective waiver in this case of want of leave. The conduct of the official liquidator in obtaining adjournment of the sale on more than one occasion for the specific purpose of paying up the decree debt due to the first mortgagee amounted to waiver. Therefore, even though no leave of the liquidation court was obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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