TMI Blog2001 (3) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... t and proper in the circumstances of the case". 2. By an order dated 10-8-1994, this Court directed the winding up of the company in liquidation and appointed the Official Liquidator to be the liquidator of the company. It appears that the assets of the company now in liquidation were sold by the State Financial Corpn. some time in the year 1980, obviously in exercise of the power conferred under section 29 of the State Financial Corporations Act. Thereupon, the Official Liquidator addressed a letter to the State Financial Corpn. to furnish the details of the amounts due to them and remit the amount realised by them on the sale of the assets which were not the subject matter of the hypothecation to the assets. As the State Financial Corpn. did not respond to the letter of the Official Liquidator, the Official Liquidator filed C.A. No. 184 of 1991. This Court by an order dated 27-3-1992 directed the State Financial Corpn. to furnish the necessary information to the Official Liquidator. Subsequently, the State Financial Corpn. by its letter dated 15-5-1992 informed the Official Liquidator that the assets of the company now in liquidation were sold to Rajani Enterprises, Bombay fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree holder, i.e., Thoban Devji Co. though was served with the notice of this court as per the directions of this court dated 16-8-1999 did not choose to appear and contest the matter. 7. On behalf of Khemji Poonja Ginning Pressing Factory (P.) Ltd. a counter affidavit is filed stating that pursuant to the decree obtained by them, an E.P. was filed and in the execution proceedings they filed an E.A. for issuance of cheque for Rs. 30,000 and accordingly the cheque was issued and the E.P. was terminated. The substantial objection raised is that the application filed by the Official Liquidator is barred by time. It is also submitted that the decree was obtained even prior to the filing of the C.P. No. 14 of 1982. Therefore, there was no necessity for the decree holder to seek leave of the court and consequently the present application is not maintainable. 8. From the record, it appears that both the decrees referred to earlier were dated 31-12-1979, i.e., long before the C.P. No. 14 of 1982 came to be instituted in this court though the actual payment was received by the decree holders from the court some time subsequent to the order of the winding up of the company now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t during the pendency of the winding up proceedings is void. In the case of both, the decree holders mentioned earlier, the execution proceedings were initiated in the year 1984, i.e., after the commencement of the proceedings for the winding up of the company now in liquidation, as by virtue of a declaration under section 441(2), the winding up of a company shall be deemed to commence at the time of presentation of the petition for the winding up, notwithstanding the fact the actual winding up order is passed much later. 15. In the present case though the winding up order was passed on 10-8-1984, the company petition was filed sometime in the year 1982, obviously before the E. Ps. were filed. Therefore, the company now in liquidation must be held as being wound up during that period and therefore the execution proceedings taken by the decree holders admittedly without the leave of this court are hit be section 537. 16. Then the question remains whether the present application by the Official Liquidator is barred by limitation or not ? 17. The learned counsel for the Official Liquidator, placing reliance on a judgment of the Gujarat High Court in Rajratna Naranbhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 181 and the period of limitation would be three years. Negativing this contention, the court observed as under : That article (181) has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the prepondering view undoubtedly is that the article applies only to applications under the Code. That was the construction placed upon article 181 of the Limitation Act of 1908. The decision is an authority for the proposition that application by the liquidator in course of winding-up proceedings for decision of any question that would arise in winding-up proceedings for decision of any question that would arise in winding-up would no be governed by article 181 and there would be no period of limitation for such an application." 22. Whereas, the Bombay High Court in the judgment (2) supra , dealt with a slightly different issue, that is the scope of section 458A of the Companies Act, which reads as follows : "458A. Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Act, 1885 claiming compensation against the appellant before the District Court, Tellicherry. The question arose whether such an application was barred by time under article 137 of the Limitation Act. The District Judge held that the provisions of the Limitation Act, 1963 more particularly Article 137 apply to the proceedings before him and, therefore, the application was time barred. Dealing with the issue, the Supreme Court held at paragraph 18 of the judgment as follows : "The words any other application under Article 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period." 26. In fact, while coming to the above mentione ..... 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