The plaintiff came to know of the Government Notification and the subsequent developments and issued a numberice to the Secretary, Department of Steel and Mines demanding payment of the decretal dues.
Clause 7 thereof made provision for saving of legal proceedings.
But the suit, prosecution, appeal or other legal proceeding may be companytinued, prosecuted and enforced or against the resulting companypany in the same manner and to the same extent as it would or may be companytinued, prosecuted and enforced by or against the dissolved companypany, if this order had number been made.
On that date, orders were number pronounced and the pronouncement of orders was adjourned to 02.09.1991.
This appeal was heard by two learned Judges of this Court.
117 of 1998, is challenged in this appeal by the Government of Orissa.
Anyway, the two learned Judges thus differed.
Meanwhile, on 24.09.1991, the Government of Orissa promulgated ordinance No.8 of 1991 in exercise of powers companyferred under Article 213 1 of the Constitution of India and issued a Notification dated 24.09.1991 whereby the Charge Chrome Division originally known as OMC Alloys Limited of the Corporation stood transferred and vested in the Government of Orissa.
In addition to providing for the amalgamation of the two companypanies 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.
It is seen that the defendant, who was represented by companynsel and who had filed a written statement in the suit, did number bring to the numberice of the Court that the defendant had got amalgamated with the Corporation, that it stood dissolved and that it was necessary to implead the Corporation before proceeding further with the suit.
By definition, the resulting Company is the Corporation.
Thus, the question arose in execution whether the decree obtained by the plaintiff against the defendant was capable of being enforced against the Corporation and the State of Orissa.
The defendant did number accede to the demand of the plaintiff for satisfying the decree.
On 29.08.1990, the suit was dismissed for default.
The application for restoration was heard and posted for orders to 17.8.1991.
The defendant filed a written statement on 14.10.1987.
It provided for the amalgamation of the defendant with the Orissa Mining Corporation Limited hereinafter referred to as the Corporation, a Government of Orissa companypany incorporated under the Companies Act.
Thus the revisions were dismissed.
It reads Saving of legal proceeding.
Clause 12 reads Dissolution of the M s OMC Alloys Limited Subject to the other provisions of this order, as from the appointed day, M s OMC Alloys Limited shall be dissolved and numberperson shall make, assert or take any claims demand or proceedings against the dissolved companypany or against a director or an officer thereof in his capacity as such director or officer, except in so far as may be necessary for enforcing the provisions of this order.
The Government of Orissa also filed an objection objecting to the executability of the decree as against it.
If on the appointed day, any suit, prosecution, appeal or other legal proceedings or whatever nature by or against the dissolved companypany be pending, the same shall number abate or be discontinued, or be any way prejudicially affected by reason of the transfer to the resulting companypany of the undertaking of dissolved companypany or of anything companytained in his order.
On 03.08.1991, the defendant filed a memo substantially submitting that it was number opposing the restoration of the suit.
On 30.08.1991, the Ministry of Law, Justice and Company Affairs, Government of India, issued a Notification S.O. 562 E in exercise of the powers companyferred 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.
The decree having number 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.
That is how, this appeal has companye up before a bench of three Judges.
On 20.09.1990, the plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit.
Both took the stand that number being parties to the decree, they were number bound by it.
On 27.09.1991, the Government of Orissa sold what had vested in it, to Tata Iron and Steel Company TISCO .
The plaintiff also did number take any steps to implead the Corporation as a defendant in the suit either due to ignorance or due to want of care.
In other words, the plaintiff, the decree holder, sought to execute the decree number only against the defendant judgment debtor, but also against the statutory transferees.
Thus, by virtue of the above Order issued under Section 396 of the Companies Act, the rights and obligations of the defendant were taken over by the Corporation with a liberty given to claimants like the plaintiff to companytinue the prosecution of their suits against the Corporation.
The High Court of Orissa after companysidering the relevant aspects and relying on the decision of this Court in State of Orissa vs. Klockner Co. 1996 8 SCC 377, held that the Executing Court was right, since the Corporation and the State Government were only successors in interest of the defendant judgment debtor and it was number open to them to challenge the decree as a nullity or as one unenforceable against them.
The Executing Court held that the decree was executable as against the Corporation and the State of Orissa since they were successors in interest of the judgment debtor and hence bound by the decree.
Their objection was thus overruled.
On 02.09.1991, with only the defendant on the party array, the application for restoration of the suit was allowed, the suit was restored and adjourned to 31.10.1991.
It is seen that the defendant did number take further part or interest in the litigation and this resulted in Money Suit No.491 of 1986 being decreed ex parte on 12.11.1991.
In view of this, their Lordships referred the appeal to a larger bench for decision by order dated 30.04.2004.
The Corporation and the Government of Orissa challenged the order of the Executing Court before the High Court of Orissa in Revisions under Section 115 of the Code of Civil Procedure.
The dismissal of its revision, Civil Revision No.
The Corporation filed an objection objecting to the executability of the decree as against it.
K. BALASUBRAMANYAN, J. M s Ashok Transport Agency, Respondent No.1 herein hereinafter referred to as the plaintiff, filed a suit against M s O.M.C. Alloys Limited, a Government Company, hereinafter referred to as the defendant, for recovery of a sum of Rs.3,90,210/ with interest thereon.
The suit was filed on 1.81986.
One learned Judge came to the companyclusion that the decree companyld number be enforced against the appellant and the appellant was entitled in execution to successfully raise the objection of number executability of the decree as against it.
