TMI Blog1984 (2) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 9 of 1974 abated on the death of the original applicant. The application giving rise to Company Petition No. 9 of 1974 was filed on August 24, 1974, by one Banarsi Lall Bhagat who claimed to be a member of Krishak Cold Storage Ltd., incorporated under the provisions of the Indian Companies Act, 1913, and entitled to apply to the court under section 398 of the present Act by virtue of section 399. He complained that the affairs of the company were being conducted in a manner prejudicial to the interest of the members. It was also stated that a sale deed was illegally executed by opposite parties Nos. 1 and 2 in favour of opposite party No. 11. A prayer was made to set aside the transfer. In paragraph 6 of the application, the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d single judge was, therefore, not right in passing the impugned order. It is common ground that the CPC does not apply to the proceeding by virtue of its own force. Section 643 of the Act empowers the Supreme Court to make rules in relation to several matters including the procedure applicable to applications under the Act, and, accordingly, the Companies (Court) Rules, 1959 (hereinafter referred to as "the Rules"), were framed. The language in the section as also of the Rules indicates that the CPC so far as may be applicable shall be followed. The relevant portion of section 643 is in the following terms : "643. Power of Supreme Court to make rules : - (1) The Supreme Court, after consulting the High Courts, ... and ( b ) may ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all calls and other sums due on their shares ; ( b )in the case of a company not having a share capital, not less than one-fifth of the total number of its members. (2) For the purposes of sub-section (1), where any share or shares are held by two .or more persons jointly, they shall be counted only as one member. (3) Where any members of a company are entitled to make an appli-cation in virtue of sub-section (1), any one or more of them having obtain ed the consent in writing of the rest, may make the application on behalf and for the benefit of all of them. (4) The Central Government may, if in its opinion circumstances exist which make it just and equitable so to do, authorise any member or members of the company to apply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is similar to those of O. 1, rule 8, which states that where there are numerous persons having the same interest in one suit, one or more of such persons with the permission of the court, sue or be sued or may defend in such suit on behalf or for the benefit of all persons so interested. It is firmly established that a suit filed under O. 1, rule 8, does not abate on the death of the plaintiff because ( i ) the persons represented are not "legal representatives" of the deceased within the meaning of the Code, and O. 22, rules. 3 and 4, do not apply to such a case, and ( ii ) the persons represented are already parties to the suit constructively though the conduct of the suit is in the hands of a particular person to whom leave has been give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no application to the present appeal where the action was initially started by the original applicant in a representative capacity. Mr. Ghose faintly suggested that by the amendment of the original application, the court has illegally deprived the appellant of the benefit of the law of limitation as on the date of the application for transposition a fresh application would have been barred. There is no force in this argument. It is that very old case which had been initially filed by Banarsi Lall Bhagat in a representative capacity which continues and a fresh question of limitation, therefore, does not arise. In the result, I do not find any merit in the point raised on behalf of the appellant and the appeal is, therefore, dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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