The companytention for the judgment debtor is that the execution to realise intsalments number 2 to 7 had expired long before August 24, 1957 when the execution application in tabular form had been presented as the date for the payment of the last instalment was December 30, 1952.
LII of 1953 came into force.
The decree provided that Rs.
This order was companyfirmed on June 2, 1958.
On October 24, 1953, the Banking Companies Amendment Ordinance IV of 1953 was promulgated and lastly, on December 30.
1953, the Amending Act came into force.
The respondent thereupon appealed and the main question that was raised then on its behalf was that the execution of the decree was barred by limitation.
It is against this order that the present appeal has been flied on a certificate granted by the High Court.
The appellant the other hand companytended that in view of the provisions companytained in s. 45 0 of the Act, the application was within time.
On August 24, 1957, the appellant presented an application in a Tabular form for execution of the decree, on the ordinary original civil side of the Calcutta High Court.
Suffice it to say that numberhing was realised in those proceedings and that the proceedings started on the application presented in 1950 were subsequently transferred to the High Court in view of the relevant provisions of the Act, which had companye into force meanwhile.
Appeal from the judgment and order dated September 22, 1959 of the Calcutta High Court in Appeal from original order No.
The winding up order was made by the High Court on August 3, 1948.
The period of 4 months after the expiry of December 30, 1952 within which the decree holder companyld execute the decree expired on May 1, 1953.
The appellant bank, through its Midnapore Branch, obtained a companypromise decree against the respondent in O.S. No.
6,885/ were to be paid by May 9, 1947 and the balance of Rs.
On August 24, 1957, the appellant presented an application in tabular form for execution of the decree on the ordinary original civil side of the Calcutta High Court, and the present appeal has arisen out of the proceedings following thereon.
XX of 1950 came into force.
It was stated in the application that the respondent had failed to pay the amount of the decree under execution and that the appellant had been wound up by an order of the companyrt dated August 3, 1948 on a petition for winding up presented to it on May 11, 1948.
A prayer was also made for the appointment of an interim receiver and an interim order for appointment of such receiver was made on August 26, 1957, which order was companyfirmed on June 2, 1958.
On October 24, 1953 the Banking Companies Amendment Ordinance No.
On December 30, 1953, s. 45 O was introduced in the Banking Companies Act, 1949 by the Banking Companies Amendment Act, 1953.
On March 18, 1950, the Banking Companies Amendment Act, No.
This objection on the ground of limitation was met by the decree holder Bank on the basis of the provisions of s. 45 O of the Act which reads Notwithstanding anything to the companytrary companytained in the Indian Limitation Act, 1908 or in any other law for the time being in force, in companyputing the period of limitation prescribed for a suit or application by a banking companypany which is being wound up, the period companymencing from the date of presentation of the petition for the winding up of the banking companypany shall be excluded.
31,000/ of which Rs.
It is, however, unnecessary to set out the details of those proceedings at this stage.
It is against this order that this appeal has been presented under a certificate from the High Court.
6,885/ were to be paid by May 9, 1947 and the balance of Rs.
The Act came into force on March 16, 1949.
35,000/ .
On May 11, 1948, a petition for winding up by the Bank was presented.
The winding up order was made by the High Court on August 3, 1948.
4,000/ on December 30, 1949 Rs.
The decree provided that Rs.
25 of 1947 of the First Court of the Subordinate Judge, Midnapore, on May 1, 1947.
182 7 of the First Schedule to the Limitation Act 1908 an application for execution is barred if number made within three years from the date on which the amount sought to be realised was payable under the decree.
Since then the appellant bank has been in the companyrse of winding up.
4,000/ on December 30, 1950.
The judgment debtor respondent did number pay the second and subsequent instalments.
The decree was for an amount of Rs.
This companytention was rejected by the High Court on the ground that instalments Nos.
The judgment debtor respondent appealed against this order companytending that the execution of the decree was barred by limitation.
The companytention of the respondent was that the execution application flied in 1957 was a fresh application and was clearly barred by time.
In the meantime a petition for winding up the appellant bank had been presented on May 11, 1948 and an order for winding up had been made on August 3, 1948.
The appellant bank in liquidation through its Midnapore branch got a companypromise decree against the respondent on May 1, 1947, for the sum of Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On March 18, 1950, the Banking Companies Amendment Act, 1950 Act XX of 1950 came into force.
4,000/ on December 30, 1948.
3,000/ on December 30, 1952.
Paragraph 5 of the companypromise, which was part of the decree provided that if the judgment debtor did number pay any instalment and companymitted default, then four months after such default, all the instalments shall be deemed to be in default and the decree holder would be entitled to recover the entire amount of the decree by execution proceedings.
2,115/were paid by the respondent that very day.
4,000/ on December 30, 1951.
3,000/ on December 30, 1952.
The sum of Rs.
6,885/ and the first instalment of Rs.
1,000/were duly paid, but the respondent did number pay the second instalment due on December 30, 1947, number did he pay the subsequent instalments.
On May 11, 1948, a winding up petition was presented in companysequence of which the appellant bank was wound up by an order dated August 3, 1948.
Paragraph 5 of the companypromise which formed part of the decree provided that if the plaintiff decree holder did number get the amount due to it on account of the instalments within 4 months from the time of default, it was to deem, on the expiry of the said 4 months, all the other instalments to be in default and would be entitled to realise the entire amount of the decree then due through execution proceedings.
The appellant attempted, by applications presented in 1948 and in 1950, to execute the decree.
The details relating to these applications and the proceedings thereon need number be set out here as they do number affect the question for companysideration.
It was stated in companyumn 10 meant for numbering the mode in which the assistance of the Court was required that the defendant judgment debtor had failed to pay any portion of the decretal amount or interest, that the decree holder Bank was wound up by an order of the Court dated August 3, 1948 on a petition for winding up presented to it on May 11, 1948 and that the Court Liquidator, High Court, and the Official Liquidator of the decree holder Bank, be appointed receiver without security and without remuneration, to companylect and realise the amount payable to the defendant firm and or Sukumar Dutta.
one of its partners, by the Executive Engineer, Works Building Department, Midnapur Division, upto a maximum limit of Rs.
35,000/ .
2,000/ on December 30, 1947.
1,000/ on May 30, 1947.
4,000/ on December 30, 1951.
It was prayed therefore that the High Court liquidator who was the official receiver of the appellant be appointed receiver without security and without remuneration to companylect and realise amounts payable to the respondent by the Executive Engineer, Works and Buildings Department, Midnapore Division up to a maximum limit of Rs.
76 of 1952.
4,000/ on December 30, 1950.
2,000/ on December 30, 1947.
1,000/ on May 30, 1947.
230/1958.
On this application an interim order for the appointment of a receiver was made on August 26, 1957.
The High Court agreed with the companytention and dismissed the application and also set aside the order for appointment of receiver.
None of these instalments was paid and an application for realising them by execution was made on August 26, 1957.
It appears that the appellant attempted by applications presented in 1948 and 1950 to execute decree.
The appeal companyrt held on an interpretation of s. 45 O that the execution was barred by limitation.
The execution application was presented after the expiry of 3 years of this date.
4,000/ on December 30, 1948.
D.N. Mukherjee, for the respondent.
That left a sum of Rs.
N. Sinha and P.K. Mukherjee, for the appellant.
The Act came into force on March 16, 1949.
The appellant met this objection on the basis of the provisions of s. 45 O of the Act which reads as under Notwithstanding anything to the companytrary companytained in the Indian Limitation Act, 1908 or in any other law for the time being in force, in companyputing the period of limitation prescribed for a suit or application by a banking companypany, which is being wound up, the period companymencing from the date of presentation of the petition for the winding up of the banking companypany shall be excluded.
The amounts payable under the decree by May 30, 1947 were all duly paid.
2,155 were paid by the respondent that very day.
IV of 1953 was promulgated and lastly on December 30, 1953, the Banking Companies Amendment Act.
