TMI Blog2002 (4) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... 91, the Ministry of Law, Justice and Company Affairs, Government of India, issued a Notification S.O. 562 (E) in exercise of the powers conferred under sub-Sections (1) and (2) of Section 396 of the Companies Act, 1956, called the OMC Alloys Limited and the Orissa Mining Corporation Limited (Amalgamation) Order, 1991. It provided for the amalgamation of the defendant with the Orissa Mining Corporation Limited [hereinafter referred to as the Corporation ], a Government of Orissa company incorporated under the Companies Act. In addition to providing for the amalgamation of the two companies and for transfer of all rights and properties of the defendant and the vesting of the same in the Corporation in accordance with law, by clause 12, it provided for the dissolution of the Company. Clause 12 reads: 12. Dissolution of the M/s OMC Alloys Limited \026 Subject to the other provisions of this order, as from the appointed day, M/s OMC Alloys Limited shall be dissolved and no person shall make, assert or take any claims demand or proceedings against the dissolved company or against a director or an officer thereof in his capacity as such director or officer, except in so far as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulted in Money Suit No.491 of 1986 being decreed ex parte on 12.11.1991. The defendant did not accede to the demand of the plaintiff for satisfying the decree. The plaintiff came to know of the Government Notification and the subsequent developments and issued a notice to the Secretary, Department of Steel and Mines demanding payment of the decretal dues. The decree having not been satisfied, the plaintiff filed an Execution Petition on 24.10.1994 impleading the defendant as judgment debtor No.1, the Corporation as judgment debtor No.2 and the State Government of Orissa as judgment debtor No.3. In other words, the plaintiff, the decree holder, sought to execute the decree not only against the defendant-judgment debtor, but also against the statutory transferees. The Corporation filed an objection objecting to the executability of the decree as against it. The Government of Orissa also filed an objection objecting to the executability of the decree as against it. Both took the stand that not being parties to the decree, they were not bound by it. Thus, the question arose in execution whether the decree obtained by the plaintiff against the defendant was capable of being enforced aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is for that assignee or transferee to come on record if it so chooses and to defend the suit. It is equally open to the assignee to trust its assignor to defend the suit properly, but with the consequence that any decree against the assignor will be binding on it and would be enforceable against it. Equally, in terms of Section 146 of the Code of Civil Procedure, a proceeding could be taken against any person claming under the defendant or the judgment debtor. Similarly, a person claiming under the defendant or the judgment debtor could seek to challenge the decree or order that may be passed against the defendant, by way of appeal or otherwise, in the appropriate manner. But, it would not be open to it to challenge the decree as void or unenforceable in execution in the absence of any specific provision in that regard in the statute or order bringing about such a transfer or assignment. Going by these general principles, it is possible to argue that it was for the Corporation, and subsequently for the State of Orissa, to get themselves impleaded in the suit and to prosecute a defence, not inconsistent with the defence already set up by the defendant in its written statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for default and the same had not been restored though the application for restoration of the suit was pending. The suit was got restored after the amalgamation took place and the consequences as set out therein followed. On the terms of the Amalgamation Order, the plaintiff did have the right to proceed with the application for restoration and the suit as against the Corporation by taking appropriate steps in that behalf. We must also notice that it was the plain duty of the defendant and its counsel, to bring to the notice of the Court the fact of promulgation of the Amalgamation Order so as to enable the Court to pass appropriate orders regarding the continuance of the proceeding before it. All the same, that can only be a reason for the plaintiff not having taken the requisite steps at the relevant time. In the face of the Amalgamation Order, we are of the view that it was necessary for the plaintiff to have brought on record the Corporation and the State Government before proceeding with its suit and the search for a decree in its favour. The terms of the Amalgamation Order has not been properly appreciated by the Executing Court and the High Court when they allowed the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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