TMI Blog1991 (10) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... 986, whereby leave was granted to the United Commercial Bank, a decree-holder, to continue with the execution proceedings pending in the Court of the Subordinate Judge I Class, Pathankot, and declining the request of the bank for transfer of the execution file to this court. The bank filed a petition under section 446(3) of the Companies Act. A decree was passed in favour of the bank on July 31, 1974, by the Senior Sub-Judge, Jalandhar. The judgment-debtor, the company, was represented but no written statement was filed in spite of three opportunities having been obtained subject to payment of costs. An execution application was filed in the court at Jalandhar which was subsequently transferred to the Court of the Sub-Judge I Class, Pathank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain pleas were raised which are not considered necessary to repeat for disposal of this appeal. Shri Munishwar Puri, advocate for the appellants, has argued that no specific prayer was made in the petition filed by the bank for grant of leave to proceed with the execution of the ex parte decree which was pending in the court at Pathankot and the learned single judge thus erred in granting this relief. Reliance has been placed on the decision of the Privy Council in Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1), wherein it was observed that, where a claim was never made in the defence presented, no amount of evidence could be looked into upon a plea which was never put forward. The ratio of the decision aforesaid cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d today between the parties (since reported as Hindustan Forests Co. P. Ltd. v. United Commercial Bank [1994] 79 Comp Cas 498 (P H)) that an ex parte decree could not be declared as void by the liquidator and the bank's name could not be deleted from the list of creditors. The bank is held to be a secured creditor on the basis of ex parte decree. Learned counsel for the appellant has further argued that, by attaching the property of the judgment-debtor, the bank has ceased to be a secured creditor and the execution cannot proceed on that score also. In support of these contentions, reliance has been placed on two decisions of the Bombay High Court : Goverdhandas Vallabhdas v. Official Liquidator, Electro-Metal Refining Co. Ltd., A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 SC 604. The secured creditor can choose to recover the amount by selling the property mortgaged or goods hypothecated and remain outside the winding up proceedings. In case such a creditor wants to recover the decretal amount by taking the assistance of the court by filing an execution and attaching other properties of the company, he would cease to be a secured creditor and would rank with other creditors of the company. In view of what has been stated above, the directions of the single judge in the impugned order for disposal of the objections to the execution on the merits by the executing court are appropriate. This appeal is dismissed. There will be no order as to costs. The parties are directed to appear in the executing court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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