Case: Bansidhar Shankarlal Vs. Mohd. Ibrahim &amp; Anr

1. Mohammed Ibrahim (hereinafter called "the plaintiff) instituted an action in the Court of the Subordinate Judge, Alipur for a decree in ejectment in respect of land occupied by the Laxmi Spinning and Weaving Mills Ltd. as his tenant. The suit was decreed on October 1, 1953. Before the decree was passed, the Company had executed on January 31, 1951, a deed in favour of Bansidhar mortgaging its fixed assets for securing repayment of Rs. 1, 25, 000/-. After the decree of the Trial Court, the Company executed on January 21, 1954, a second deed also in favour of Bansidhar mortgaging the fixed assets for repayment of an additional sum of Rs. 2, 00, 000/-. The decree of the Subordinate Judge in the plaintiffs suit was confined on August 4, 1954. Against that decree the Company and Bansidhar preferred Second Appeal No. 1380 of 1954 to the High Court of Calcutta. Bansidhar also filed a suit in the High Court of Calcutta on its original side to enforce the two mortgages in his favour and obtained preliminary mortgage decree in the suit on May 13, 1955. Another creditor of the Company applied for and obtained on August 22, 1955, an order directing that the company be wound up. The liquidators of the Company and Bansidhar prosecuted the Second Appeal No. 1380 of 1954. The decree of the District Court was confirmed by the High Court in its appellate jurisdiction on February 22, 1958. The plaintiff then instituted an application for enforcement of the decree in ejectment against the Company without obtaining leave of the High Court of Calcutta under Section 171 of the Indian Companies Act, 1913. On December 17, 1958, Bansidhar filed a petition contending that the application for enforcement of the decree was not maintainable without leave of the High Court which ordered that the Company be wound up. On the motion of the plaintiff the Company Judge granted leave to execute the decree in Second Appeal No. 1380 of 1954. The Subordinate Judge before whom the proceedings were pending dismissed the application filed by Bansidhar, and the order of dismissal was confirmed by the Additional District Judge and by the High Court in Second Appeal. Bansidhars petition for certificate for appeal to this Court under Article 133(1)(b) and (c) of the Constitution was also rejected. Bansidhar then preferred two petitions for special leave to his Court-one against of the order in the execution proceedings and the other against the order of the High Court refusing to certify the appeal under Article 133(a)(b) and (c) of the Constitution. This Court dismissed the petition against the order of the High Court in Second Appeal and granted special leave to appeal against the order of the High Court refusing to certify the case.2. The order passed by the High Court in Second Appeal Having affirmed the order of the District Court, unless the appeal preferred to this Court involved some substantial question of law of public or private importance the case could not be certified under Article 133(1)(b) even if the proposed appeal involved directly or indirectly some claim or question respecting property of value not less than Rs. 20, 000/-. The High Court could not also certify the case as a fit one for appeal under Article 133(1)(c) unless in the view of the Court it raised a question of some general or public importance.

Reasoning:
8. Considering the question both on principle and authority we are unable to agree with the view expressed by the Calcutta High Court in Har Narain Misras case (supra) and in Godavari Sugar and Refineries Ltd. case (supra) by the Andhra Pradesh High Court.9.Counsel for the appellant, however, urged that this Court is not concerned in this appeal with the correctness of one or the other of the two conflicting views. Counsel says the Court has only to consider the correctness of the view of the High Court refusing to granted the certificate.In our judgment, it would be a futile exercise if we come to the conclusion that the view taken by the High Court on the merits of the case is true, still to certify the case for appeal. The proposed appeal only involves the question about the maintainability of the execution proceeding commenced by the plaintiff and against the company in liquidation without leave of the High Court which has ordered the company to be wound up. WE entertain no doubt that the High Court was right in the view it has taken on the merits and the contentions raised. We do not think that we will be justified in certifying an appeal in which the only question which may be urged is the on which we have expressed out opinion against the appellant.