TMI Blog1968 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... article 13 of the said Act. Schedule I, article 7, of the Act, reads as follows : "7. Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid. A fee on the amount of the monetary gain or loss to be prevented according to the scale prescribed under article I." Schedule II, article 13 of the said Act reads as follows: "13. Memorandum of appeal. When the appeal is not from a decree or an order having the force of a decree, and is presented ( a ) to any Civil Court other than the High Court, or to any Revenue Court of Executive Officer other than the High Court or Chief Controlling Revenue or Executive Authority ; ( b ) to the Chief Controlling Executive or Revenue Authority; ( c ) to the High Court. One rupee. Two rupees and fifty paise Five rupees." As we have recently observed in similar case, Indumati v. Union of India [1968 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses incurred by them for the period for which they were in possession of the mill. The remaining portion of the claim made by them in exhibit 285 is dismissed. The above amount shall be adjusted against the claim of the liquidator against the trustees in Miscellaneous Application No. 120 of 1955, in which I have delivered judgment to-day. There will be no order as to costs in the present enquiry." Clearly, though the order is not an order under the Civil Procedure Code, it is still an order, which can be enforced and is conclusive and final unless appealed from. When the words "a decree or an order" are used in Schedule II, article 13 of the Act, it could not have been intended by the legislature to confine the words to decrees or orders only of civil courts, inasmuch as (article 13) column 2 shows that it is intended to apply to any memorandum of appeal presented either to any civil court or to any revenue court of executive officer or chief controlling revenue or executive authority. That this should be the intention of the legislature is further supported from the other provisions of Schedule I of the Act. For example, article 3, Schedule I, relates to an award made un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 634 by providing for enforcement of the said order by any court other than the court which has made the order. The provisions of this section are in terms similar to those of section 38 of the Code of Civil Procedure. Section 483 reads as follows : "Appeals from any order made, or decision given, in the matter of the winding up of a company by the court shall lie to the same court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision ot the court in cases within its ordinary jurisdiction." The question then arises as to whether in substance there is any distinction between an order creating liability made by the court in winding up proceedings granting substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss and a decree of the civil court granting similar relief. The substance of the matter is that, when an order is made it is enforceable in exactly the same manner as a decree and it is appealable in the same manner and to the same extent as a decree. Moreover, as in the case of a decree, such order of the court in winding up proceedings is binding, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judicial Committee held that the view taken by the courts below was a very narrow view and that an application under section 73 of the Code made by the company must be deemed to be an application for execution of a decree for the purpose of that section. The Judicial Committee approved the earlier decision of the Lahore High Court in Radhesham Beopar Co. v. Karam Chand [1941] 11 Comp. Cas. 229 ; AIR 1941 Lah. 273 . In substance, therefore, we do not find any difference between a decree and an enforceable -order made in winding up proceedings. We are, therefore, constrained to hold that such an order has the force of a decree. On behalf of the appellants and the respondent our attention was invited, firstly, to the decision in Reference under section 28 of Act No. VII of 1870 [1895] ILR 17 All. 238. In that case under the old Companies Act it seems an order was made by the district judge under section 214 against the directors of the bank in question for payment into court certain amount and an appeal was filed from that order. As the question of court-fee arose, the matter was referred by the district judge to the High Court. The learned judge, after having observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an order made under the Companies Act. In both the cases unless the orders are enforced, the person against whom the orders are made is not touched and qua him both the orders are lifeless. The distinction, therefore, pointed out is a distinction not of substance but of form. On the other hand, as we have pointed out, an order made against any person in winding up proceeding is as binding and is as conclusive, subject to the result of the appeal, as any ordinary decree. If a question arises between the parties the decision can be called in aid to prevent agitatie of the question which has been already decided by that order. That being so, it is difficult to appreciate any distinction of substance between the two kinds of orders. In the above case even though the other two learned judges expressed entire agreement with the judgment of Sale J., Marten J. added a rider saying : "In view of the distinction we have drawn between orders having the force of a decree within the meaning of article 11, Schedule II, Court-fees Act, and orders enforced in the same manner in which decrees may be enforced, it follows that if any order made under the Companies Act is intrinsically of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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