vil APPEAL No 198 of 1956
Appeal from the judgment and decree dated August 24 1950 of the Allahabad High Court in Execution First Appeal No 399 of 1947
Gopi Nath Kunzru and Ganpat Rai for the appellants G section Pathak and G C Mathur for the respondent
October l 2
The Judgment of the Court was delivered by SHAH J
The Banaras Bank Ltd a public limited company having its registered office at Banaras hereinafter referred to as the Bank was ordered on March l 1 940 to be compulsorliy wound up by the High Court of Judicature at Allahabad and the Official Liquidator was appointed to conduct the proceedings in winding up
On September 12 1942 an order was made by the High Court under section 187 of the Indian Companies Act 1913 VII of 1913 for payment of unpaid calls and the appellants Jyoti Bhushan Gupta
and Gokul Chand whose names had been placed on the list of contributors were directed to pay with interest Rs 9517859 to the official Liquidator of the Bank
This order was by virtue of section 199 of the Act enforceable in the manner in which the decree of the High Court made in any suit pending therein may be enforced
On September 12 1946 the order was transferred to the District Judge Allahabad for execution
On September 23 1946 the official Liquidator applied to the District Court Allahabad for execution of the order dated September 12 1942 and prayed that certain amounts due to the appellants be attached in satisfaction of the claim
The execution proceedings were transferred by the District Judge 75 to the Civil Judge Allahabad
The appellants contended Inter alia that as the application for execution was not preferred within 3 years of the order for payment as prescribed by article 182 of the First Schedule of the Limitation Act it was barred by the law of limitation
The official Liquidator contended that the application was governed by article 183 of the Act and that in any event certain part payments having been made towards the claim by the appellants the period of limitation was extended thereby
At the hearing the alternative plea of part payment was abandoned by the Official Liquidator
The Civi1 Judge held that the application for execution was barred limitation as it was not preferred within 3 years from the order of the High Court
In appeal to the High Court of Allahabad the order passed by the Civil Judge was reversed and the proceedings were remitted to the Civil Judge with a direction to restore the execution application to its original number and to proceed with it according to law
Against that order with certificate of fitness granted by the High Court under article 133 of the Constitution this appeal is preferred
Counsel for the Company contended that the order passed by the High Court not being a final order the appeal on certificate granted by this High Court is not maintainable
We have not thought it necessary having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave even if certificate under article 133 of the Constitution could not be issued by the High Court to hear the parties on the question as to the maintainability of the appeal OD the certificate and have heard the appeal on the merits
We are of the view that the appeal must fail on the merits
76 article 182 of the Indian Limitation Act provides a period of 3 years for an application for execution of a decreer an order of any Civil Court not provided by article 183 or section 48 of the Code of Civil Procedure 1908 V of l908
By article 183 a period of l2 years for enforcing a judgment decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction is prescribed and the period commences to run from the date on which a present right to enforce the judgment decree or order accrues to some person capable of
releasing the right
The order sought to be executed was not passed by the High Court in the trial of a suit it was passed in exercise of the jurisdiction conferred upon the High Court by section 187 of the Indian Companies s Act 1913
Section 3 of the Indian Companies Act by sub s1 enacts that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate
By the proviso the Central Government may by notification in the official Gazette empower any District Court to exercise all or any of the jurisdiction conferred upon the High Court
But it is common ground that no notification conferring jurisdiction and empowering the District Court at Banaras where the registered office of the company is situate to pass orders under B 187 has been issued
The High Court was therefore the only Court competent to direct under B 187 of the Indian Companies Act payment of the amount due from the appellants
Counsel for the appellants contends that the authority exercised by the High Court in directing payment under section 187 of the Indian Companies Act 1913 is neither ordinary nor original civil
He submits that by section 187 a special power is vested in the High Court by the Indian Companies Act 1913 which is exercisable in its extraordinary jurisdiction
To appreciate this argument it is necessary to refer to the statute authorising the establish 77 ment of the High Court and the Letters Patent constituting the same
The High Court for the North Western Province of which the Allahabad High Court is the successor was constituted by the Letters Patent issued on March 17 1866 in exercise of the powers conferred by cl 16 of the Charter Act of 1861 2425 Vict C 104
By that clause Her Majesty the Queen was authorised to establish a High Court and to invest the High Court with such jurisdiction powers and authority as under the Charter Act may by cl 9 be conferred upon the High Court to be established in any of the presidencies i e calcutta Bombay and Madras
The High Courts of Calcutta Bombay and Madras which were popularly known as the Presidency High Courts were by cl 12 of their respective Letters Patent invested with ordinary original civil jurisdiction to entertain and try suits of every description subject to the restriction as to territorial limitations contained in cl 11 thereof
But by its Letters Patent the High Court for the North Western Province was not invested with jurisdiction to entertain civil suits in exercise of its ordinary original civil jurisdiction
Counsel for the appellants submits that Art183 applies only to decrees and orders passed by the High Courts established by the Royal Charter which by their constitution are authorised to entertain hear and try civil suits in exercise of their ordinary civil jurisdiction and as no such power was conferred upon the Allahabad High Court the order sought to be executed was not passed in exercise of the ordinary original civil jurisdiction
It is true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court the character whereof falls to be determined in this appeal
But by cl 16 of the Charter Act and cl 35 of the Letters Patent of the Allahabad High Court jurisdiction 78 which Was not initially conferred upon the High Court could the conferred by legislation within the competence of the Governor General in Council and the Governor in Council
By the Companies Act of 1913 the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up
This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributors
The jurisdiction is ordinary it does not depend on any extraordinary action on the part of the High Court
The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction
Again by section 187 no special jurisdiction is conferred
The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company the jurisdiction is therefore civil
Normally a creditor has to file a suit to enforce liability for payment of a debt due to him from him debtor
The Legislature has by section 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment but on that account the real character of the jurisdiction exercised by the High Court is not altered
Nor is there any substance in the contention that the authority to order payment of a debt under section 187 is merely a power of the High Court and not its jurisdiction
By section 3 read with section 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by section 3 read with 8 187 of the Companies Act
The Judicial Committee of the Privy Council was called upon In the matter of Candas Narondas Navivahu and C A Turner1 to determine the true 1 I L R 1889 13 Eom
79 nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors
The Privy Council held that article 180 of Schedule II of the Indian Limitation Act XV of 1877 which was similar to article 183 of the Indian Limitation Act l908 applies to a judgment of a Court for the relief of insolvent ebtors entered up in the High Court in accordance with section 86 of the Statute 11 and 12 Vic c 21
It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvent s estate the proceedings in execution and the judgment are the High Court section The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law not by way of special or extra ordinary action but in the exercise of its ordinary original civil jurisdiction
Lord Hobhouse delivering the judgment of the judicial committee observed But it was strongly contended at the bar that this jurisdiction though civil and original was not ordinary and Mr Rugby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes ordinary original extraordinary original appellate and those special matters which are tho subject of special and separate provisions
But their Lordships are of the opinion that the expression ordinary jurisdiction embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it and that it is opposed to extraordinary jurisdiction which the Court may assume at its discretion upon special occasions and by special orders
They are confirmed in this view by observing that in the next group of clauses which indicated the law to be applied by the Court to the various clauses of cases there is not a four fold division of jurisdiction but a three fold one into ordinary extraordinary 80 and appellate
The judgment of 1868 was entered up by the High Court not by way of special or discretionary action but in the ordinary course of the duty cast upon it by law according to which every other case of the same kind would be dealt with
It was therefore entered up in exercise of the ordineary original civil jurisdiction of the High Court
 Council for the appellants contended that by cl 18 of the letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of In re Candas Narondas does not apply
But under cl 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be deter mined by reference to the law relating to insolvent debtors
The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified
There is however no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts
When in exercise of its authority conferred by a special statute the High court in an application presented to it as a court of first instance declares liability to pay a debt the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court the jurisdiction is ordinary
In P T Munia Servai v The Hanuman Bank Ltd Tanjore 1 a Division Bench of the Madras I 1
L R 81 High Court by the Banking Companies Act 949 X of 1949 is part of its ordinary civil jurisdiction within the meaning of article 183 of the Limitation Act and an order passed in exercise of its ordinary original Civil Jurisdiction is governed by article 183 and not by article 182 of the Limitation Act
In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made
To an application for enforcement of that liability article 183 of the Limitation Act was held applicable
In our view the High Court was right ill holding that the application for execution filed by the official Liquidator was within limitation
The appeal therefore fails and is dismissed with costs
Appeal dismissed


Summary:
The Banaras Bank Ltd was ordered by the Allahabad High Court to be compulsorily wound up
The High Court passed an order under section 187 of the Indian Companies Act 1913 directing the appellants whose names had been placed on the list of contributors to pay a certain sum of money to the official Liquidator
The official Liquidator applied for execution of the order more than three years after the making thereof
The appellants contended that the execution application not having Been preferred within three years as prescribed by article 182 of the Limitation Act was barred
The official Liquidator contended that the order was made in the exercise of ordinary original civil jurisdiction by the High Court and the application was governed by article 183 which prescribed a period of limitation of twelve years
 Held that article 183 was applicable to the case and the application for execution was within time
The order was Made by the High Court in the exercise of its ordinary original civil jurisdiction as contemplated in article 183
Though the Letters Patent did not invest the High Court with any original jurisdiction it could be conferred by legislation
The Indian Companies Act 1913 invested the High Court with the jurisdiction to order payment of amounts due by debtors of companies ordered to be wound up
The jurisdiction was ordinary it did not depend on and extraordinary action on the part of the High Court
It was original as a petition for the exercise of it was entertained by the High Court as a court of first instance and not as an appellate court and since the High Court adjudicated upon the liability of the debtor to pay debts due by him to the company the jurisdiction was civil
In the matter of Candas Narondas Navivahu and C A Turner I L R and P T Munia Cervai 74 vs The Hunuman Bnak Ltd ILR  referred to