TMI Blog2001 (10) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... or as the provisional liquidator. On February 1, 2001, the company court disposed of the company petition by passing an order of winding up against the respondent. The appellant after disposal of the company petition aforesaid, filed a petition with a prayer that it should be permitted to execute the recovery proceedings initiated by it, consequent upon the judgment and decree passed by the civil judge dated September 9, 1999, vide which the appellant had been found entitled to a sum of Rs. 7,42,27,312 from Punjab Wireless Systems Ltd. (hereinafter referred to as "the respondent"). In the alternative, it was the prayer of the appellant that the company court should transfer the execution proceedings to itself and to execute the same. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent failed to make any payment to the appellant, thus, the appellant was compelled to initiate execution proceedings by way of Execution Case No. 25 of 1999. In furtherance of the execution case filed by the appellant, the learned executing court on December 6, 1999, ordered the attachment of the properties of the respondent. Inasmuch as, execution proceedings in view of the provisions contained in section 446 of the Companies Act, 1956, could not proceed any further as after the Official Liquidator had been appointed as the provisional liquidator, no suit or legal proceedings pending could be proceeded with except with the leave of the court. The application for alternative reliefs as mentioned above was filed. It has been the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 25 of 1999 was passed on December 6, 1999, and since the aforesaid order had not been passed with the leave of the court, the same was void under the mandate of the provisions contained in the Companies Act, 1956. 5. On the basis of rules 11 and 11A of Order 38 of the Code of Civil Procedure, the learned company judge returned a finding that "if an order of attachment has been passed in respect of certain properties before the passing of any final judgment and decree, no further order of attachment is required to be passed for execution of the decree subsequently passed in favour of the appellant. In the instant case, an order of attachment was passed on August 17, 1999, whereas final judgment and decree was passed on September 9, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atsoever is created to the decree holder vis-a-vis the property attached. It is, therefore, natural to conclude that an order of attachment creates no interest in favour of the decree holder. Therefore, the attachment of property of the respondent-company, i.e., Punwire vide orders dated August 17, 1999, and December 6, 1999, does not have the effect of creating any charge in favour of the Corporation in respect of the attached property." Reliance was placed upon Praga Tools Ltd. v. Official Liquidator of Bengal Engg. Co. (P.) Ltd. [1984] 56 Comp. Cas. 214 (Cal.) by learned counsel representing the appellant. The contention of counsel representing the appellant based upon the judgment aforesaid was repelled by observing that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the appellant that such an argument was raised but has not been noticed by the learned company judge. No terms of the compromise, as argued before us, were even brought to the notice of the learned company judge. Insofar as, reliance upon Praga Tools Ltd. s case ( supra ) is concerned, all that was held therein by the Calcutta High Court is that if a charge is created by an order of the court, it will not require registration under section 125 of the Companies Act, 1956. A decree for repayment of money owed by B Co. to PT Co. was passed in 1976 with the consent of the parties. The order settled the decretal amount and laid down the mode by which it was to be paid. The default clause provided that PT Co. could execute the order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred nor a third party right can be created therein, in other words, no right whatsoever, is created in the decree holder vis-a-vis the property attached. It is, therefore, natural to conclude that an order of attachment creates no interest in favour of the decree holder. Therefore, the attachment of property of the respondent-company, i.e., Punwire vide orders dated August 17, 1999, and December 6, 1999, does not have the effect of creating any charge in favour of the Corporation in respect of the attached property". For arriving at the conclusion aforesaid, the learned company judge also relied upon the observations of Mulla in the Code of Civil Procedure, 13th edition at page 318 as also judgment in Buta Singh Sons. Ltd. s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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