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TMI Blog2012 (6) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... prayers by way of amendment to C. A. No. 616 of 2006, namely, to add three (3) prayers. The registry on such application being filed has raised the following objection : "Non-filing of memo of service in C. A. No. 397 of 2011." 2. Thereafter the official liquidator has filed a memo of service in C. A. No. 397 of 2011 stating that the judge's summons in C. A. No. 397 of 2011 sent to respondents Nos. 2, 3, 7 and 8 are duly served and notice issued to respondents Nos. 4 and 5 is returned with a postal share as "party deceased". In respect of polices issued to respondents Nos. 1, 6 and 9 neither acknowledgment nor undelivered postal cover has been received by the official liquidator. Admittedly respondents Nos. 4 and 5 have expired and this court by order dated November 12, 2008 and July 27, 2007, respectively has already held that application C. A. No. 616 of 2006 filed against respondents Nos. 4 and 5 has stood abated and matter has been posted for further orders before this court for furnishing acknowledgments for having served judge's summons on other respondents. It is noticed that respondents Nos. 1, 6 and 9 are already represented in C. A. No. 616 of 2006 by learned counsel M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, enable or require all or any of the powers and duties conferred and imposed on the court by this Act, in respect of the following matters, that it to say :- (a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories ; (b) the settling of lists of contributories and the rectifying of the register of members where required, and collecting and applying the assets ; (c) the payment, delivery, conveyance surrender or transfer of money, property, books or papers to the liquidator ; (d) the making of calls ; and (e) the fixing of a time within which debts and claims shall be proved ; to be exercised or performed by the official liquidator or any other liquidator as an officer of the court, and subject to the control of the court : Provided that the liquidator shall not, without the special leave of the court, rectify the register of members or make any call. (3) Until rules are made by the Supreme Court as aforesaid, all rules made by any High Court on the matters referred to in this section and in force at the commencement of this Act, shall continue to be in force in so far as they are not inconsistent with the provisions of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Procedure and not in substitution thereof. Under section 122 of the Code of Civil Procedure, the High Courts are empowered to make rules regulating their own procedure and the procedure of the civil courts, subject to their superintendence and may by such rules annul or add to all or any of the rules in the First Schedule. The legislative competence of the High Court to make such rules has been upheld by the hon'ble apex court in the case of : (1) Virendra Kumar Saklecha v. Jagjiwan [1972] 1 SCC 826 and (2) Aboobacker Babu Haji v. Edakkode Pathummakutty Umma [2004] 11 SCC 183. 9. By virtue of the power vested under section 122 of the Code of Civil Procedure the High Court of Karnataka has formulated the following rules : (1) The High Court of Karnataka Rules, 1959 ; and (2) The Karnataka Civil Rules of Practice, 1967. 10. Chapter X of the High Court of Karnataka Rules, 1959, relates to "interlocutory matters". Rule 1(1) provides as to how an application filed during the pendency of an appeal reference petition or other matter presented is to be categorised and numbered. The same reads as under : "Chapter-X Interlocutory matters 1. (1) All applications made during the pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order by way of aid pending final adjudication of the matter arising in the suit. Appeal, or proceeding or for readmission of appeal dismissed for default." 13. Likewise under proviso to sub-rule (1) of rule 19 such interlocutory application if filed in a pending proceedings would not be posted before court unless such application is served either on the party appearing or on the pleader/counsel representing such party, unless an acknowledgment for having served the application is filed into court along with application. Rule 19 reads as under : "19. (1) Every interlocutory application shall, after presentation, be numbered and posted before the court for orders : Provided that, when any party likely to be affected by it has already entered appearance by pleader, no such application shall be so posted, unless such pleader has been served with notice of the application by delivering to him a copy of the application together with a copy of the supporting affidavit or memorandum of facts, and the written acknowledgment over the signature of each such pleader or his registered clerk is taken either by an endorsement on the application or otherwise and is filed into court along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbined reading of all these provisions, namely, section 643(1) and (2) of the Companies Act, section 122 of the CPC, rules 11(b) and 19(2) of the Companies (Court) Rules, 1959, Chapter X and Chapter III of the High Court of Karnataka Rules, 1959 and Karnataka Civil Rules of Practice, 1967, respectively, would go to show that all these provisions speak of service of notice of an application/interlocutory application ("IA" for short) is required to be served on such person against whom an order is sought for. However, if the parties against whom an order is sought for in such application/IA have already appeared and they are represented by advocate, the question of either issuing notice to the said person/s by prepaid registered post or service of notice on such person/s, through any other mode is not required, since service of such application or IA can be made on the learned advocate representing such party and it would serve the purpose. However, in a situation where in a pending proceedings, the parties are served and were unrepresented and any application or IA is made seeking additional prayer or further orders against those persons, then notice has to go to those persons neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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