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TMI Blog1980 (11) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd., put the said decree into execution on October 10, 1969. During the pendency of the said execution case, the company court by an order dated September 17, 1970, sanctioned a scheme of amalgamation of Binani Properties (P.) Ltd., the decree-holder, with Binani Investment Co. (P.) Ltd., and ordered for the transfer of the entire assets and properties of the Binani Properties (P.) Ltd. to Binani Investment Co. (P.) Ltd. under section 394 of the Companies Act, 1956. It was further ordered that the latter company, that is, the transferee-company, would be entitled to continue all pending proceedings initiated by or in the name of Binani Properties (P.) Ltd; It was discovered by the Binani Investment Co, (P.) Ltd., with which the original decree-holder, Binani Properties (P.) Ltd., was amalgamated, that through mistake the disputed property, being the said premises No. 81, Netaji Subhas Road, Calcutta, was omitted to be included in the schedule of the order dated September 17,1970, sanctioning the scheme of amalgamation. An application for rectification was moved and by an order dated April 10, 1973, the order of amalgamation was rectified by including the disputed property in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent, Metal Distributors Ltd., not having followed and complied with the provisions of O. 21, rule 16 of the CPC, the respondent is not entitled to execute the decree for possession. In elaborating the point, the learned counsel submits that the right to execute a decree is a statutory right, and only the decree-holder can execute the decree, even after the transfer of the same and until and unless the name of the transferee is brought on the record as the decree-holder in accordance with the provisions of O. 21, rule 16. It is contended that the said provision also applies to a pending execution, and if there be a transfer of the decree, the transferee may continue the execution, provided his name is brought on the record by substitution in place of the name of the transferor in the tabular statement. It is submitted that in the application under O. 21, rule 16, besides other prayers, there must be a prayer for substitution of the name of the transferee in place of the name of the decree-holder in the tabular statement. It is pointed out that as there has been no order for substitution of the respondent's name in the tabular statement, a mere permission to continue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court regarding the continuation of a pending appeal by the assignee of the property by virtue of section 146. In overruling the said contention, the Supreme Court observed : "The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant must be held to be maintainable under section 146". (p. 397) In a recent decision of the Supreme Court in Zila Singh v. Hazari [1979] 3 SCC 265; AIR 1979 SC 1066, the same view has been reiterated. The above principle as laid down by the Supreme Court is also applicable for the continuation of a pending execution proceeding by the person claiming under the original decree-holder under section 146. Counsel for the appellants has, however, placed strong reliance on a Full Bench decision of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai, AIR 1932 Mad 73 [FB]. It that case, it has been laid down that by reason of section 146 and O. 21, rule 16 of the CPC, the legal representative of a decree-holder who dies during the pendency of an execution petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for execution and not an application for substitution. We may refer to the observation of Sen J., in a Bench decision of this court in Annada Prasad Mitra's case, AIR 1942 Cal 390. In that case also the question was as to the continuation of an execution proceeding under section 146 read with 0. 21, rule 16 of the Code of Civil Procedure. It has been observed by Sen J. that the right to continue or carry on proceedings presupposes a right to be substituted and an application to carry on the proceedings includes in itself an application for substitution. So, even if there be no prayer for substitution in the application, such a prayer will be implied. On the same principle, it may be said that when the court by its order allows the application and permits the transferee of the property to continue the proceeding, the court has also allowed the prayer for substitution which is implied in the application. In this connection, we may notice the contention of Mr. S.B. Mukherjee for the respondent that as the transfer of the disputed property has taken place in terms of orders under section 394 of the Companies Act, 1956, and, the respondent, Metal Distributors Ltd., having .b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties ", it was only a tentative order and did not amount to the recognition of the right of the' respondent to continue the execution proceedings. In support of this contention,- learned counsel for the appellants has placed strong reliance on the decision of the Supreme Court in Superintendent ( Tech.-I) Central Excise v. Pratap Rai, AIR 1978 SC 1244. In that case, the Appellate Collector of Customs vacated the order of adjudication of the Asst. Collector "without prejudice" on the ground of violation of the rules of natural justice. The question was whether by the said order a fresh adjudication proceeding was barred. It was held by the Supreme Court that as the Appellate Collector had vacated the order of the Asst. Collector on a technical infirmity and not on merits, he had advisedly used the words "without prejudice" in his order, and that if the Appellate Collector had intended to set aside the order completely and irrevocably, then he should have passed a consequential order for refund of the amount of penalty and for the release of the property confiscated. Further, it was observed that the implication of the term "without prejudice" means that the cause or the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., by an order dated July 20, 1973. The tenant-judgment-debtor, being aggrieved by the said order dated July 20, 1973, has preferred one of these appeals, being the Appeal No. 335(A) of 1976. It is contended on behalf of the appellants that after the order of amalgamation was made on September 17, 1970, and after the certified copy of the said order was filed with the Registrar for registration, Binani Properties (P.) Ltd. stood dissolved as per the said order; the disputed property not having been included in the order of amalgamation, there was no transfer of the same to the Binani Investment Co. Ltd., and, consequently, the same vested in the State of West Bengal on the principle of bona vacantia or by escheat. The order dated July 20, 1973, allowing the application for rectification has been challenged on behalf of the appellants as illegal and without jurisdiction. It is contended by the learned counsel for the appellants that as there was no clerical or arithmetical mistake or error, the order of amalgamation ought not to have been amended by the inclusion of the disputed property in the schedule to the order. It is submitted that, in any event, in view of section 559 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the leasehold property of the transferor-company) PART III (Insert a short description of all stocks, shares, debentures and other choses-in-action of the transferor-company)". The order that has been made under section 394(2) of the Companies Act is in terms of Form No. 42. As has been stated already, the disputed property, being 81, Netaji Subhas Road, Calcutta, has not been included in any of the parts of the schedule to the order. The question, therefore, is whether the disputed property has also passed to the transferee-company, namely, Binani Investment Co. (P.) Ltd. It is contended by Mr. Mukherjee, learned counsel appearing on behalf of the respondent, that in spite of the fact that the disputed property has not been mentioned in the schedule to the order, still it has passed to the transferee-company. He has placed reliance on the expression "and all other property" in para. 1 of the order made in terms of Form No. 42. It is submitted by him that by virtue of the said expression the disputed property, which has not been mentioned in the schedule, shall be deemed to have been transferred to the transferee-company. The scheme of amalgamation provides for the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the transferor-company will keep the property outside the scope of the order of transfer under section 394(2). So, on a proper construction of the order in the context of the facts and circumstances of the case, we hold that even though the disputed property was not mentioned in the schedule to the order under section 394(2), it was covered by the said order and, consequently, it stood transferred to the transferee-company. There was, therefore, no necessity for rectification of the order. The learned counsel for the appellants has placed much reliance on the decisions of the Supreme Court in Peirce Leslie'and Co. Ltd. v. Miss Violet Ouchterlony Wapshare [1969] 39 Comp. Cas. 808 ; AIR 1969 SC 843 and in Narendra Bahadur Tandon v. Shankar Lai [1982] 52 Comp. Cas. 62 ; AIR 1980 SC 575. In these decisions, it has been held by the Supreme Court that after a Corporation is dissolved, the property of the Corporation passed to the government by escheat or as bona vacantia. These two decisions, in our opinion, have no application to the facts and circumstances of the case, as we have already held that the disputed property had passed to the transferee-company by virtue of the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arithmetical error in the order that was required to be amended or rectified and the court should not have entertained such an application for rectification. It may be that an order, whether it is by way of amendment or not, takes effect from the date it is passed. The contentions as made above on behalf of the appellants do not appeal to us. When by an amendment of the order no change is effected, but the amendment only clarifies the order, such clarification or rectification will undoubtedly take effect from the date the order was passed as if it was already there in the order. In the instant case, the order having directed the transfer of all other properties, the rectification of the order that was made was by way of clarification of the order by the inclusion of the disputed property in the schedule. In the circumstances, we hold that the order of rectification is virtually an order of clarification of the order passed under section 394(2) of the Companies Act. Such an order of rectification by way of clarification not having made any change in the order will take effect from the date the order was originally made. In the view which we take, we are unable to accept the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Except the said provision there is no provision in the CPC providing that the execution petition shall be supported by an affidavit of competency. In our opinion, in view of O. 29, rule 1, it will be sufficient if an execution petition is verified by the secretary or any director or other principal officer of the company. Even assuming that an affidavit of competency is necessary, more than one such affidavit have been filed in the instant case in support of the execution petition. On October 10, 1969, Baldeodas Pugalia, one of the directors of the Binani Properties (P.) Ltd., the original decree-holder, verified the execution petition. On the same day, he also filed an affidavit in support of the execution petition. In para, 1 of the affidavit, it has been stated by him categorically that he is authorised and competent to sign and affirm the tabular statement and also the affidavit on behalf of the plaintiff-decree-holder. There can be no doubt that the said affidavit is an affidavit of competency. It is not necessary to refer to other affidavits of competency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not consistent with the judgment, but where there is no such vagueness or inconsistency and the decree is clear, the executing court, in our opinion, will have no jurisdiction to embark upon a construction of the decree. Moreover, there is no question of the decree being a nullity under any principle of law simply because it was passed on the ground of reasonable requirement for building and rebuilding and thereafter the property in dispute was transferred. Under the West Bengal Premises Tenancy Act, 1956, when the decree is passed on the ground of building and rebuilding, the decree-holder has to comply with the provisions of the said Act regarding building and rebuilding, etc. But it cannot be said that as the property has been transferred, the decree has become a nullity. Much reliance has been placed by the appellants on a decision of the Delhi High Court in Shama Banu v. Jagdish Parshad, AIR 1975 Delhi 164. In that case, during the pendency of the appeal against an order for eviction on the ground of bona fide requirement for building and rebuilding under section 14(1)(g) of the Delhi Rent Control Act, 1958, the landlord sold his interest in the property and the new landlord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the transferee to execute the decree or to embark upon an adjudication whether the transferee has reasonable requirement of the premises. If such a question is allowed to be raised or' such an adjudication is allowed to be made by the executing court, there will be no end to litigation and the decree will lose the sanctity that is attached to it. There will also be a great departure from the doctrine that the executing court cannot go behind the decree. In the circumstances, apart from the fact, the decision of the Delhi High Court in Shama Banu's case AIR 1975 Delhi 164, has no application to the facts of the present case. There is, therefore, no substance in the contention that after the transfer of the property in question, the decree for eviction had become a nullity. The further contention of the appellants-is that so far as defendant No. 5, namely, P. Mullick & Co., is concerned, the decree passed against it was only on the ground of reasonable requirement of the landlord for the purpose of building and rebuilding inasmuch as the said P. Mullick & Co., is admittedly a sub-tenant in respect of the disputed property and it gave notice under section 16 of the West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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