Das, J.

1. The facts leading up to the present application are asfollows:

The East India Cotton Mills, Ltd. (hereinafter referred toas the Company) was incorporated under the Indian Companies Act on July 27,1920. The nominal capital of the company is rupees one crore divided into50,000 preference shares of Rs. 100 each and 5,00,000 ordinary shares of Rs. 10each. The paid-up capital, according to the last balance-sheet, is Rs.1,31,831-8. The registered office of the company was at No. 120, MaharshiDebendra Road, but was later on shifted to No. 7-G, Clive Row, Calcutta.

2. On November 1, 1921, Messrs. M. Alibhoy and Company wereappointed as the managing agents of the company and they acted as such untilJune, 1930, when, on account of the death of some of their partners, theyretired from the management.

3. At an extraordinary general meeting held on November 1,1930, one Manabendra Mohan Kundu Chaudhuri, who was one of the promoters of thecompany and one J.N. Ray were appointed joint managing directors of thecompany. In May, 1931, a site for the factory was purchased at Mohiari in thedistrict of Howrah and in August, 1931, a factory was erected on that site.Manabendra states that he advanced a large sum of money for the purchase of thesite and erection of the factory and for starting and continuing the work ofthe factory. He claims to be a creditor of the company in the sum of Rs.5,24,651.

4. The Petitioners allege that the company had a precariousexistence from 1930 to July, 1944, when the affairs of the company came to adeadlock, due to the inefficiency and mismanagement of Manabendra and J.N. Ray.Indeed a winding-up petition is said to have been pending against the companyat that time. Be that as it may, Manabendra is said to have approached the firmof Motilal Murarilal and Company, of which the Petitioner Murarilal is apartner, to take up the management of the company and since about July/August,1944, Manabendra and J.N. Ray ceased to function as managing directors and anew management came into office as hereafter stated.

5. On July 3, 1944, the Petitioner Murarilal and one M.N.Ray were appointed directors of the company. On July 18, 1944, H.D. Garodia andN.N. Movani also became directors.

6. On August 4, 1944, the firm of Motilal Murarilal andCompany carrying on business at No. 7-G, Clive Row, were appointed as themanaging agents of the company. The Petitioner Murarilal, one Motilal Garodia,since deceased and the said N.N. Movani are said to have been partners of thisfirm. On August 15, 1944, a managing agency agreement was entered into by andbetween the company and the said firm of Motilal Murarilal and Company and theArticles were amended accordingly.

7. The Petitioners claim that, after taking up themanagement of the company, Motilal Murarilal and Company invested about Rs.3,50,000 of their own and also raised another sum of Rs. 2,50,000 on theirguarantee from the Calcutta National Batik, Ltd., for the purposes of thecompany. The Petitioners state that besides the above sums they also paid Rs.91,000 to sundry creditors of the company and that, by reason of the financialfacilities thus extended to it, the company made marked progress and the worksof the mills and the factory went on regularly and showed record production.

8. It appears that, on July 27, 1945, the PetitionerMurarilal was arrested on a charge of bribery. On July 31, 1945, the PetitionerMurarilal was again arrested on a charge of selling fourteen bales of cloth ofthe companys mills in the black market. The Petitioner Murarilal was convictedon the bribery charge and sentenced to nine months rigorous imprisonment,which, on appeal, was upheld and confirmed by this Court in its appellatecriminal jurisdiction. On August 5, 1946, the Petitioner Murarilal was alsoconvicted on the black marketing charge under the Defence of India Rules andsentenced to a term of one years rigorous imprisonment and also to a fine ofRs. 1,000 or in default to further six months rigorous imprisonment. Hepreferred an appeal, but the conviction and sentence were eventually upheld andconfirmed by this Court in its appellate criminal jurisdiction on January 24,1947. He was at the date of the present application in the Alipore Central Jailserving his sentences.

9. On or about September 17, 1946, Motilal Garodia, anotherpartner of the firm of managing agents, died.

10. On September 27, 1946, a Board meeting is said to havebeen held. That meeting was attended by Manabendra, M.N. Ray and Anil Ghatak.By a resolution said to have been passed at that meeting, Manabendra wasauthorised to supervise the work of the mills and the office and to operate onthe banking account under Article 196. A copy of the minutes of that meeting isannexed to Manabendras affidavit.

11. On October 8, 1946, Motilal Murarilal and Company, themanaging agents, executed a power-of-attorney in favour of BaseswarlalKalanaria, delegating to him all the powers of the managing agents in terms ofArticle 189 and Kalanaria claims to have since been in possession of the millsand the office of the company and looking after its interests.

12. On November 26, 1946, another Board meeting waspurported to be held and several resolutions were purported to be passed atthat meeting, which was attended by Manabendra, M.N. Ray and Anil Ghatak. H.D. Garodiais said to have attended the meeting, but to have refused to record hisattendance by signing the minutes and to have left the meeting after a while.One of the resolutions passed at that meeting authorised Manabendra as thedirector in charge to convene an extraordinary general meeting of the companyon January 2, 1947, to consider the several matters which were formulated atthat meeting and directed to be placed on the agenda of the extraordinarygeneral meeting to be so convened. One of such matters was the removal of themanaging agents Motilal Murarilal and Company and the appointment of newmanaging agents.

13. On January 2, 1947, the day fixed for the extraordinarygeneral meeting of the company, Kalanaria (the constituted attorney of MotilalMurarilal and Company) and Petitioner Murarilal filed a suit, being Suit No. 17of 1947, in this Court against Manabendra and others for, inter alia, adeclaration that the resolution dated September 27, 1946, was bad, illegal andultra vires, an injunction restraining Manabendra and others from interferingwith the management of the company. On the same day, an application was movedbefore me for an injunction restraining Manabendra and others from holding theextraordinary general meeting fixed for that day. I declined to issue aninjunction stopping the meeting, but granted an injunction restraining theDefendants from giving effect to any resolution that might be passed at thatmeeting until the hearing of that application and from entering the mill premisesand the office of the company in the meantime. Subsequently, the order wasvaried in certain particulars as stated in Manabendras affidavit inopposition. Manabendra and others, thereafter, made an application in that suitfor an order that Motilal Murarilal and Company do remove their men from themill premises and that the Petitioner Murarilal be committed for contempt forviolation of the interim order. Both the applications came up before MajumdarJ. on February 21, 1947, but the learned Judge, observing that the status quoshould be maintained, made no order in either of the applications as prayed butdismissed both of them and vacated the interim order.

14. Manabendra thereafter, it is said, approached the policeauthorities for help to oust the managing agents men, but after visiting themill premises, on February 26, 1947, the police authorities are alleged tohave declined to interfere. On March 10, 1947, Manabendra applied ex parte andobtained from the Court of the Subdivisional Officer of Howrah an order ofattachment under Section 145 of Code of Criminal Procedure and the millpremises were attached by the police on March 14, 1947. This case was, however,subsequently dismissed and the attachment was withdrawn on May 13, 1947.

15. In the meantime, on March 25, 1947, one Shiva PrasadChakrabarti, a former managing director of the company, presented before thisCourt a petition for winding-up of the company. On the presentation of thepetition, the Court fixed the hearing of that petition on May 12, 1947 anddirected a copy of the petition together with a copy of that order to be servedon the company at its registered office and also directed advertisements to bepublished once in the "Calcutta Gazette," once in the "Statesman"and once in the "Ananda Bazar Patrika". As there was some difficultyin publishing the advertisement in the "Statesman", Edgley J.modified the directions by directing advertisement to be issued on or beforeApril 30, 1947, in the "Amrita Bazar Patrika," instead of the"Statesman."

16. The advertisements were duly published in the"Calcutta Gazette", "Amrita Bazar Patrika" and "AnandaBazar Patrika." An affidavit affirmed by one Amulya Dhan Ghosh, a clerk inthe employ of Shiva Prasads attorney, was also filed stating that on April 18,1947, he had called at No. 7-G, Clive Row and on arriving there, found anemployee of the company named Ram, but did not find anybody else and that,therefore, he served the company with the petition and a copy of the order,dated March 25, 1947, by delivering to and leaving the same with Ram at thesaid registered office.

17. Manabendra says that he saw the advertisements in thenewspapers and on May 9, 1947, through his attorney, gave notice to ShivaPrasads attorneys intimating that as a creditor of the company he would appearat the hearing in support of the application for winding-up.

18. The application for winding-up appeared in the list forhearing on May 12, 13 and 14, 1947, but was not reached. On May 15, 1947, theapplication was called on for hearing and Learned Counsel for Shiva Prasadprayed for an order for winding-up. The company did not appear to contest theapplication. Manabendra, as one of the creditors of the company, supported theapplication. After hearing counsel for the parties appearing on theapplication, Edgley J. made the winding-up order and appointed Mr. S. Banerjee,a member of the bar, as the Official Liquidator on usual security andremuneration.

19. Mr. Banerjee, on May 17, 1947, sealed the registeredoffice of the company and proceeded to take possession of the mills. OneGazanand Kalanaria, who claims to be the present mill manager under themanaging agents, insisted upon production of the Courts order authorising Mr.Banerjee to take possession and declined to give possession unless such orderwas produced. Manabendra, who was present there, is said to have told Mr.Banerjee that, as director in charge, he was giving him possession and to havepressed Mr. Banerjee to take forcible possession. Gazanand Kalanaria says thatMr. Banejree declined to take forcible possession and went away.

20. On May 19, 1947, the Petitioner Dulichand approached thepetitioning creditor Shiva Prasad and proposed that he (Dulichand) would payoff Shiva Prasads claim and costs, if Shiva Prasad would undertake not toproceed with the matter. Shiva Prasad found no reason to decline the proposaland accepted Rs. 2,000 in full settlement of his dues and granted a receipt acopy of which is set out in his affidavit. On the same day, Shiva Prasadsattorneys wrote a letter to Mr. Banerjee, the Official Liquidator, stating thatthe petitioning creditor had been paid his dues by another creditor Dulichandand would not proceed further in the matter of obtaining possession or otherwise.

21. On May 20, 1947, the present summons was taken out forsetting aside the winding-up order made on May 15, 1947, or for staying thatorder altogether and for revoking the appointment of the Official Liquidator.The matter came up for hearing before Edgley J. of July 17 1947, when thelearned Judge made an order under Section 173 of the Companies Act, staying thewinding-up order pending the decision of Suit No. 17 of 1947, filed byMurarilal and Kalanaria on January 2, 1947, upon certain terms and appointingMr. Banerjee, who had been previously appointed as liquidator as the receiverof the East India Cotton Mills.

22. The Petitioners being aggrieved by the appointment ofMr. Banerjee as receiver preferred an appeal from that order. The appeal Court,I am told, held that the application was not maintainable, as neither Mr.Banerjee nor the Official Receiver as the Official Liquidator had been made aparty and remanded the application to the Judge taking the company list. ThePetitioners have, thereafter, on December 5, 19.47, taken out a fresh summonsand served the same on the petitioning creditor, the company, Mr. Banerjee andthe Official Receiver and the matter has now come up before me as the Judge nowtaking the company list. The new summons does not appear to have been served onone Khagendra Lal Shaha, who had appeared before Edgley J. and filed anaffidavit strongly objecting to any stay.

23. So far I have summarised the facts without any comment.It is quite clear that many of those facts set out in the petition and theaffidavits have been utilised on both sides to give a colour to the respectivecases. The Petitioners have sought to make out that, seeing that the companyhad become a flourishing concern as a result of the labours and financialassistance of the managing agents, Manabendra has been trying to oust them andto get back the control and management of the company. It is their case that,with that end in view, Manabendra has fabricated some resolutions not passed atany meeting or has purported to get diverse illegal resolutions passed at Boardmeetings held without a quorum and at an extraordinary general meeting withoutnotice to all parties concerned and has also moved the police authorities andthe criminal Court to establish himself in power. Manabendra, on the otherhand, has sought to depict the Petitioner Murarilal as a despicable person whohas been misusing his position as a director and a partner of the firm ofmanaging agents and making unlawful gain at the expense of the company and whohas been convicted of bribery and black marketeering. He suggests that, byreason of the conviction of the Petitioner Murarilal and the death of MotilalGarodia, the affairs of the company were not looked after and that, in taking thesteps that he did, he was actuated by the best of motives, namely, the welfareof the company and its Shareholders. Whether Manabendra found, in themisfortune of the Petitioner Murarilal and in the death of Motilal Garodia, anopportunity providing him with a plausible excuse for getting back the controland management of the company by adopting foul or dubious tactics or whether hewas actuated solely with the desire of protecting the interests of the companyis more than I can say on the materials before me. Indeed, in view of thependency of Suit No. 17 of 1947, where all these questions will be agitated, Ido not think that I should attempt to probe into the motives of Manabendra andmake any observation bearing thereon, which may prejudice either party. I,therefore, confine myself to those matters which, I conceive, are vitally andstrictly relevant for the purposes of this application.

24. Of the two Petitioners before me, one, namely,Murarilal, claims to be a shareholder and director of the company. This claimis disputed by Manabendra, who says that Murarilal, after being appointeddirector, did not acquire the qualification-shares and his name does not appearin the register of members. Murarilal alleges that he acquired one hundredshares from Shiva Prasad shortly after his appointment as a director and thatlater on at a board meeting held on June 1, 1946, at which Manabendra waspresent, this transfer of one hundred shares to Murarilal was approved andpassed by the board, as is evidenced by the minutes signed by Manabendra, whichhave been produced before me. Notices of board meetings have been always givento him and he also attended the extraordinary general meeting of shareholdersheld on January 20, 1945. The other Petitioner Dulichand claims to be acreditor of the company in the sum of about Us. 90,000. In the balance-sheet ason December 31, 1944, annexed to Manabendras affidavit in opposition and onwhich he relies to establish his claim as a creditor, the business of MurarilalDulichand, of which Dulichand claims to be the karta, is shown as a creditorfor Its. 72,543-2. In the circumstances and for the purposes of thisapplication, I am prepared to accept and proceed on the footing that thePetitioner Murarilal is a shareholder and director and the Petitioner Dulichandis a creditor of the company.

25. Mr. Das Gupta, appearing for Manabendra, has taken apreliminary point as to the jurisdiction of this Court to entertain and thelocus standi of the Petitioners to maintain this application. The argumentraises several important and interesting points, which I now proceed todiscuss.

26. On the presentation of a petition for winding-up,directions are given under our rules for advertisements in the official gazetteand the two newspapers and if the petition is not presented by the company,directions are given for service of the petition together with the order givingthe directions on the company. That is why, on every petition presented by anyperson other than the company, a note has to be inserted stating that it isintended to serve the petition on the company. The service on the company is tobe effected in the manner prescribed by Rule 56 of our Company Rules. Quiteobviously, the advertisements are intended to serve the purpose of a generalnotice to all, who may be interested in the affairs of the company, e.g., itscreditors and its contributories and the service on the company, serves as aspecial notice to the company. After the advertisements are published, anycreditor or contributory has the right to appear and file his affidavit oncomplying with the relevant rules. Thus, under Rule 58, any person who intendsto appear on the hearing of the petition, is enjoined to leave with, or send byregistered post to the Petitioner or his attorney notice of such intentionsigned by him or by his attorney, not later than two clear days before the dayappointed for the hearing of the petition. No person, who fails to comply withthis requirement, is allowed to appear on the hearing of the petition withoutthe leave of the Judge. Under Rule 59, an affidavit intended to be used inopposition to or in support of the petition is to be filed not less than fivedays before the date fixed for hearing and notice of the filing of theaffidavit is to be given to the Petitioner or his attorney on the day it isfiled. If this requirement is not complied with the affidavit, unless the Judgeotherwise directs, cannot be used on the hearing. If the proceedings on apetition for winding-up be compared to proceedings in a suit, the*advertisements fulfil the purpose of service on all creditors andcontributories, who may desire to come in and be made a party, the notice ofintention to appear on the hearing serves that of entering appearance by theDefendant and the filing of the affidavit that of filing the written statement.It is by giving notice of intention to appear that creditor or contributorybecomes a party to the proceedings for winding-up: see the observations ofLindiey L.J. in course of the arguments in In re Securities Insurance Company(1894) 2 Ch. 410 411. By the giving of the notice, the name of the creditor orcontributory comes on the record and it is only when the name comes on therecord that he becomes a party to the proceedings: see Biswambar Biswas v.Nilambar Muhari (1920) 33 C.W.N. 997, 999.

27. In this case, on the presentation of the winding-uppetition, the Court gave directions for advertisements and for service on thecompany. Neither of the Petitioners gave any notice of intention to appear onthe hearing under Rule 58 or file any affidavit under Rule 59 or even ask forleave of the Court at the A time of the actual hearing of the petition toappear at the hearing. The Petitioners, therefore, did not make themselvesparties to the proceedings. Edgley J. made the winding-up order. Can, I, as theJudge taking the company list, set aside the order of Edgley J. and re-open theapplication Can I do so at the instance of the Petitioners, who were notparties to the proceedings or to the order Could Edgley J. himself do so

28. Section 202 of our present Companies Act is as follows:

Re-hearings of and appeals from, any order or decision madeor given in the matter of the winding-up of a company by the Court may be hadin the same manner and subject to the same conditions in and subject to whichappeals may be had from any order or decision of the same Court in cases withinits ordinary jurisdiction.

29. The section prescribes for re-hearings of and appealsfrom orders made in the matter of the winding-up of a company by the Court inthe same "manner" and "conditions" as are to be followedand observed in an appeal from an order of that Court in a case within itsordinary jurisdiction. It appears to me that the expression "manner"indicates the procedure and the expression "conditions" connotes theessential requirements for maintaining the appeal. Confining myself toproceedings on the Original. Side of the High Court, it is quite clear that anorder of the High Court in a case within its ordinary jurisdiction isappealable if it is a "judgment" within the meaning of Clause 15 ofthe Letters Patent unless such appeal is barred by any special law and theappeal from such an order has to be initiated on a memorandum of appeal filedaccording to prescribed rules and has to be brought before the Division Benchappointed for hearing such appeals. An appeal from an order made by a Judge ofthe High Court in the matter of the winding-up of a company can, therefore,according to this section, be appealable, if it is a "judgment" andsuch appeal must be initiated on a memorandum of appeal and brought before theDivision Court appointed to hear appeals from the original side. There can beno doubt that an order for winding-up is a "judgment" within Clause15 of the Letters Patent and therefore, satisfies one of the conditions ofappeal ability laid down by the section, but this application cannot possiblybe regarded as an appeal, for, omitting for the moment the capacity of thePetitioners to maintain an appeal, which question will be discussed later on,it is quite clear that this application has not been initiated or broughtbefore the appropriate Court in the manner prescribed for an appeal. Thequestion, then, is: Can of this application be supported as a re-hearing of theorder of Edgley J

30. It is suggested, on the authority of the notes underSection 202 in Sen and Sarkers Commentary on the Companies Act, that the plainmeaning of the word "re-hearing" is hearing again which implieshearing by the same tribunal which had heard it before and that this re-hearingis in the nature of a review and not an appeal. The language of the section,however, makes it difficult to adopt this line of argument. It will be noticedthat the marginal note to the section is only "appeals from orders"and that the section makes no distinction between "re-hearing" and an"appeal" either as to the "manner" or as to the"conditions" in and subject to which it is to be had. A re-hearinglike an appeal can be had under this section only in the same manner andsubject to the same conditions in which an appeal from an order made inexercise of original jurisdiction is to be had. If the manner and conditions inwhich an appeal is to be had have to be followed and observed in hearing are-hearing, such re-hearing has to be initiated in the same way, i.e., uponfiling a memorandum of appeal and brought before the same Court, i.e., theappeal Court as an appeal has to be initiated and brought. This analysis of thelanguage of the section appears to me to be logical and leads me to theconclusion that the re-hearing contemplated by the section is akin to anappeal. The question then arises: If re-hearing is akin to an appeal, why wasthat expression "re-hearing" inserted in the section at all Theanswer to this question necessarily involves an investigation into thehistorical circumstances in which this expression came to be inserted in thesection.

31. Going backwards, I find that Section 202 of our presentCompanies Act of 1913 corresponds with Section 169 of the Indian Companies Actof 1882. That Section 169 reproduced verbatim Section 141 of the IndianCompanies Act, 1866, which was in the following terms:

Re-hearings of and appeals from, any order or decision madeor given in the matter of the winding-up of a company by the Court, may be hadin the same manner and subject to the same conditions in and subject to whichappeals may be had from any order or decision of the same Court in cases withinits ordinary jurisdiction; subject to this restriction, that no such re-hearingor appeal shall be heard unless notice of the same is given within three weeksafter any order complained of has been made, in manner in which notices ofappeal are ordinarily given under the Code of Civil Procedure, unless such timeis extended by the Court of appeal.

32. It is well known that the Indian Companies Act, 1866,was mainly based on the English Companies Act, 1862 (25 and 26 Vic, e. 89).Section 141 of our 1866 Act corresponded with Section 124 of the English Act of1862, which was in the following terms:

Re-hearings of and appeals from any order or decision madeor given in the matter of the winding-up of a company by any Court havingjurisdiction under this Act may be had in the same manner and subject to thesame conditions in and subject to which appeals may be had from any order ordecision of the same Court in cases within its ordinary jurisdiction, subjectto this restriction that no such re-hearing or appeal shall be heard unless noticeof the same is given within three weeks after any order complained of has beenmade, in manner in which notices of appeal are ordinarily given, according tothe practice of the Court appealed from, unless such time is extended by theCourt of appeal: Provided that....

33. I omit the proviso which related to the Lord Warden ofthe Stannaries, with which we are not concerned. It will be noticed that, withthe exception that for the words "any Court having "jurisdictionunder this Act" occurring in the English section, we had the word"the Court" in our Section 141 and that, for the reference in theEnglish section to the practice of the Court appealed from as regards themanner of service of the notice of appeal, reference was made in our section tothe Code of Civil Procedure and that the proviso at the end of the Englishsection was omitted from our section, our Section 141 reproduced verbatim,Section 124 of the English Act of 1862. The English Section 124 used both theexpressions "re-hearings" and "appeals" and so did ourSection 141 and this was repeated in Section 169 of our 1882 Act and later onin Section 202 of our present Act of 1913. Indeed, our Section 202 is averbatim reproduction of Section 141 of the 1865 Act and Section 169 of the 1882Act, except that the last portion of the old sections beginning with the words"subject to this restriction" has been omitted from our presentsection. It will be noticed that the marginal note to the old sections, Englishand Indian, was, as the marginal note to the present sections, English andIndian, is, "appeals from orders". The last portion of the oldsections, which gave power to the Court of appeal to extend the time, put itbeyond any doubt that the rehearing contemplated by the old sections was a re-hearingbefore an appeal Court and was, therefore, really an appeal. The omission ofthat portion, however, from our present section, does not appear to me to makeany difference in this respect, for the re-hearing even under the presentsection is to be had in the same manner and subject to the same conditions asan appeal is to be had. While, therefore, the nature of a re-hearing as anappeal was made explicit by the last portion of the old sections, it wasimplicit also in the first portion and is implicit in the section as it nowstands, for a re-hearing even now is to be had in the same manner and subjectto the same conditions as an appeal is to be had from an order made by theCourt in a case within its ordinary jurisdiction. In Parvatishankar v. IshvardasJagjivandas (1894) I.L.R. 19 Bom. 208 Sargent C.J., on the authority of Exparte Besley (1851) 3 Mac. and G. 287 : 42 E.R. 271 and on Buckleys CompaniesAct, held that the term "re-hearing" in Section 169 of our CompaniesAct of 1882 meant a re-hearing in the nature of an appeal. I respectfully agreewith the learned Chief Justice. In my opinion, that expression in our presentSection 202 means the same thing.

34. The question, however, still remains: If re-hearing isin the nature of an appeal, why was the expression "re-hearing" usedin the English Act of 1862 in addition to the expression appeal". Theanswer to this question is to be found in the old practice of the ChanceryCourt in England, which was mainly the Court having jurisdiction under theEnglish Companies Act. In In re St. Nazaire Company (1879) 12 Ch. D. 88, 98.Jessel M.R. observed as follows:

Now, part of the old jurisdiction of the Lord Chancellor wasa right to re-hear his own decisions, or decisions of a preceding Lord Chancellor;and similar powers passed under the statute to the Master of the Rolls and theVice-Chancellor and they also had a right to re-hear their own decisions andthe decisions of their respective predecessors. At first, that was an unlimitedright, as I said before ; it was afterwards limited by General Order to twentyyears and finally to five years and that existed down to the time of thepassing of the Judicature Act. Now, what was that right of re-hearing Was itoriginal jurisdiction, or was it appellate jurisdiction There can, as it seemsto me, but one answer to that question: it was appellate jurisdiction. No doubtit sometimes was an appeal from a Judge to himself, but it was much morefrequently an appeal from a Judge to his successor. One of the very first casesheard before Lord Lyndhurst was a re-hearing of a case before Lord Eldon, whosedecision he reversed. In fact, the hope of every Appellant was founded on thechange of the Judge. Such a petition of re-hearing could not be describedotherwise than as an application in the nature of an appeal; indeed, everyre-hearing was an appeal, although every appeal was not a re-hearing.

35. The above observations make it clear that besides anordinary appeal from one Court to a superior Court, there was in the ChanceryCourt an appeal from one Judge to himself or to his successor, which was calledre-hearing. As a re-hearing was also a kind of appeal, both re-hearings andappeals had to be included in the English Companies Act, 1862.

36. The learned Master of the Bolls in the case last citedpointed out at pp. 98-99 that all jurisdiction and powers of the LordChancellor and of the Court of appeal in Chancery in exercise of his and itsappellate jurisdiction having, by Section 18 of the Judicature Act, 1873, beentransferred to the Court of appeal, the jurisdiction of a Judge to re-hear thedecision of himself or of his predecessor, which was derived from the appellatejurisdiction of the Lord Chancellor, was completely taken away and there couldbe no rehearing of an order by the Court who made the order. In In re The LyricSyndicate (Limited) (1900) 17 T.L.R. 162 an application was made to rescind thewinding-up order made on a creditors petition. The ground of the applicationwas that the order had been obtained by the mistake of the solicitors clerk,who, in ignorance of the fact that an arrangement had been made to satisfy thePetitioners and to have the petition withdrawn and that the arrangement hadbeen carried out, instructed Counsel to obtain the order. The petitioningcreditors acceded to the application. Cozens-Hardy J. said that he had nojurisdiction to rescind the order after it had been passed and entered andsuggested that application might be made for staying the winding-up order ifdebts had been paid. If the Chancery practice of re-hearing had prevailed therecould be no difficulty in setting aside that order as on appeal.

37. Then came the English Companies (Consolidation) Act,1908 (8 Edw. 7, c. 69). Sub-section (1) of Section 181 of that Act provided asfollows:

Subject to rules of Court, an appeal from any order ordecision made or given in the winding-up of a company by the Court under thisAct shall lie in the same manner and subject to the same conditions as anappeal from any order or decision of the Court in cases within its ordinaryjurisdiction.

38. I omit Sub-sections (2), (3) and (4) of that section,which deal with orders or judgments pronounced in Scotland. This section hasnow been replaced by Section 224 of the present English Companies Act, 1929.

39. Section 224(1) is in the terms following:

Subject to the provisions of this section and to rules ofCourt an appeal from any order or decision made or given in the winding-up of acompany by the Court in Scotland under this Act shall lie in the same mannerand subject to the same conditions as an appeal from any order or decision ofthe Court in cases within its ordinary jurisdiction.

40. It is not necessary for my present purpose to refer tothe other sub-sections of this section. The present English section does notprovide for appeal from an order made by the High Court in England, but thatmakes no difference, for such appeal is permitted under the Rules of theSupreme Court read with Rule 224 of the Company Rules. The important thing tonote, however, is that the expression "re-hearing" is not to be foundin the English Act of 1908 or 1929. As pointed out by Jessel M.R., after theJudicature Act 1873, there could be no re-hearing, in the sense of appeal, by aJudge of the High Court of his own decision or that of his predecessor such aswas permitted by the Old Chancery Practice and therefore, the expression"re-hearing" became meaningless and was omitted from the sectionwhich deals only with appeals.

41. To summarise: In England besides appeals from one Courtto a superior Court, there was, according to Old Chancery Practice, a specialkind of appeal which was called a re-hearing. An order made by the ChanceryCourt could, therefore, be appealed from in two ways, namely, by appealing tothe superior Court or by appealing to the same Judge or his successor. When theappeal was taken to a superior Court it was called an appeal and where theappeal was taken before the same Court it was called a rehearing. Both were,however, appeals. Company matters were dealt with by the Chancery Court inEngland. The English Acts relating to Companies down to Section 124 of theEnglish Companies Act, 1862, in granting the right of appeal from order made inthe winding-up of a company had to provide for both kinds of appeals I havementioned and therefore, had to use both the expressions"re-hearings" and "appeals" subject to the same conditionsas an appeal from an order made in a case within the original jurisdiction ofthe Court. After the Judicature Act, 1873, the Chancery practice of re-hearingby way of appeal by the Judge, who made the order or his successor, could nolonger prevail and every appeal had to go to the Court of appeal. The EnglishCompanies Acts of 1908 and 1929, therefore, omitted the word"rehearing" from the relevant section dealing with appeals fromorders. Section 141 of our Companies Act, 1866, adopted the relevant portion ofSection 124 of the English Act, 1862 and used the word "re-hearings"along with the word "appeals". In Section 169 and Section 224 of our1882 and 1913 Acts respectively the expression "re-hearings" was leftuntouched, although that expression meaning an appeal had become meaningless inEngland after the Judicature Act and had been omitted in the English Act of1908 and is not to be found in the present English Act of 1929. The expression"re-hearing" in our Section 202 is, therefore, an anomaly, whichevidently has escaped the attention of our legislature. Be that as it may, on aconsideration of the history of the matter as well as on a proper constructionof the section itself, the expression "re-hearing" as used thereinclearly means proceedings in the nature of an appeal. If this application, inso far as it prays for the setting aside of Edgley J.s order, is to beregarded as a "re-hearing" within the meaning of the section, I, asthe successor Judge taking the Company List which was taken by Edgley J., haveno jurisdiction to entertain it, for, according to the section, such re-hearingis to be had in the same manner and subject to the same condition in which anappeal is to be had from an order made by Edgley J. in a case within hisordinary jurisdiction and such a re-hearing will have to be initiated on amemorandum of appeal and taken to the Division Bench appointed to hear appealsfrom the Original Side.

42. Even if this application could be treated as are-hearing in the nature of an appeal within Section 202 and if I, as thesuccessor Company Court, could entertain it, there still remains the questionwhether the Petitioners or either of them are or is entitled to maintain it.The right of appeal is the creature of statute. Nobody has any inherent ornatural right of appeal. Even a party to the proceedings in which the impugnedorder is made has no right to appeal therefrom unless such right isspecifically given by statute. Section 202 gives a right of re-hearing anappeal but does not say explicitly to whom such right is given This has to beascertained on a true construction of the section. This right of re-hearing andappeal is, by the section, to be exercised in the same manner and subject tothe same conditions as a right of appeal from an order made in exercise oforiginal jurisdiction is to be exercised. Under the Code of Civil Procedure andour rules made under that Code or the Letters Patent only a party to theproceedings who is adversely affected by an order made therein or hisrepresentative in interest may appeal from that order if that order is anappealable order. As has been held in The Indian Bank, Ltd. v. Seth BansiramJeshamal Firm (1933) I.L.R. 57 Mad. 670, neither under the general principlesnor under the Code can a person, who was not a party to a suit, prefer anappeal from the decree made in that suit merely on the ground that the OfficialReceiver, who was a party to the suit, represented him in the suit. As said inthe case of Bishambhar Biswas v. Nilambar Muhari (supra), only a person, whosename appears on the record as a party, can appeal and a person cannot appeal onthe ground that his benamdar was a party to the suit. There is no provision fora stranger to the proceedings to appeal from an order made therein. Neither ofthe Petitioners gave notice of intention to appear at the hearing of thepetition, or file an affidavit or appear at the hearing and his name does notappear on the record and neither of them is a party to the petition or theorder made thereon. In such circumstances, is there any other special principleor any authority, on the strength of which, the Petitioners or either of themcan claim an appeal from or re-hearing of an order made in proceedings to whichboth of them were and are strangers

43. It will be convenient at this stage to refer to some ofthe judicial decisions on the question. In In re Silkstone Fall CollieryCompany (1875) 1 Ch. D. 38, the persons who appealed were share-holders who hadappeared on the hearing of the petition and were, therefore, parties to thepetition. In the case of Security Insurance Company (supra) the companyproposed a scheme of arrangement with its creditors and policyholders. Ameeting of creditors was held pursuant to the directions of the Court toconsider the scheme. The Appellants attended the meeting by proxy, but did notvote and did not attend at the hearing to oppose the sanction of the scheme.The scheme was sanctioned by the Court. The Appellants appealed from the ordersanctioning the scheme. The objection that the Appellants, not being parties tothe proceedings, could not appeal without leave of the Court, was upheld by theCourt of appeal. In J. Rustomji v. Official Liquidator of Peoples Bank (1919)49 Ind. Cas. 381, the Court sanctioned a scheme. The Appellant did not complywith Rule 58 of the Rules framed by the Chief Court and had not entered hisname in the book kept for the purpose and had not, in fact, attended theproceedings resulting in the order sanctioning the scheme. It was held that theAppellant, not having qualified himself to attend the proceedings and nothaving been a party to the proceedings before the trial Judge had no locusstandi to appeal. In the case of Natore Kamala Bank, Ltd. I.L.R. (1937) 1 Cal.368, 374 the company proposed a scheme and a meeting of creditors was heldunder the directions of the Court. The Petitioner, a judgment-creditor, did notattend the meeting. At the meeting, the scheme was approved by the requisitemajority of creditors. The Petitioner appeared at the hearing and was heard inopposition to it but his objections were overruled and the scheme wassanctioned. After about three years, the Petitioner applied for cancellation ofthe scheme or modification thereof by excluding the decree-holders from itsoperation. Lort-Williams J. refused the application on the ground of delayalone. In course of his judgment, however, the learned Judge said:

Persons whose interests are affected by a scheme under thissection, but who have not opposed it at a meeting, or appeared at the hearingof the petition, cannot appeal without leave; but they can with leave, as canthose and without leave, who have opposed it at the meeting, or have appearedin opposition at the hearing of the petition. See Section 202, Indian CompaniesAct; In re Securities Insurance Company (1894) 2 Ch. 410.

44. The facts in In Re Mymensingh Loan Office, Ltd. (1936)41 C.W.N. 599, 601 were similar to those in the Natore Kamala Bank (supra) caseexcept that the Petitioner had left the meeting of creditors after stating thathe, a judgment creditor, was not bound by the scheme and did not appear at thehearing when the scheme was sanctioned by the Court. The Petitioner applied forexecution of his decree but it was refused on the ground that he was bound bythe sanctioned scheme. After another unsuccessful application for execution thePetitioner applied for cancellation of the scheme or modification thereof so asto exclude the decree-holder creditors from its operation. Lort-Williams J.held that the Court had no power to modify or alter the scheme without theconsent of those who had agreed to it. In course of his judgment the learnedJudge observed:

Moreover the Petitioner had an appropriate remedy providedby law which he failed to pursue, because he could have applied to the Courtfor leave to appeal against the order sanctioning the scheme. Section 202,Indian Companies Act. In re Securities Insurance Company (supra).

45. In Governor-General in Council v. Sailendra Nath MitraI.L.R. (1942) 2 Cal. 85, 96, 97, the Insurance Company had failed to make thefull deposit required by Section 7 of the Insurance Act. The share-holderspassed a resolution for voluntary winding-up of the company and appointed aliquidator. By reason of default in making the deposit in full, theregistration of the company was cancelled. A committee of inspection was appointedunder Section 209(c) of the Companies Act. That committee submitted a scheme ofreconstruction. The Court gave directions for convening a meeting of creditorsand policyholders. The Superintendent of Insurance applied for winding-up.After certain proceedings which need not be detailed, the liquidator appliedfor sanction of the scheme. Notice of this application was served on theSuperintendent of Insurance. The Superintendent of Insurance opposed thescheme. The Court, however, sanctioned the scheme. Later on, the Court orderedthe Reserve Bank to make over to the liquidator the securities held by it asdeposit in the name of the company. The Governor-General in Council, who wasnot a party before the lower Court and the Superintendent of Insurance, on whomnotice was given and who appeared in the lower Court, filed the appeal. Twopreliminary points were raised, namely, that the order was not appealable andthat the Appellants had no right to maintain the appeal. It was held that theorder of the Court under the Insurance Act was appealable under Clause 15 ofthe Letters Patent as a judgment. As to the locus standi of theGovernor-General in Council as Appellant, Nasim Ali J., who delivered theleading judgment of the appeal Court, stated at p. 96:

The Governor-General in Council was not a party to theproceedings in the trial Court. An appeal at the instance of a person not onthe record is maintainable where his interest in the subject-matter of thedispute will be bound by the judgment or order: Daniels Chancery Practice, 7thEd., Volume 1, p. 1042; In re Securities Insurance Company (supra). An orderunder Section 9 is binding on the Governor-General in Council. The latter has astatutory right to retain the deposit under Section 7 until and unless theevents justifying an order under Section 9 take place. He has, therefore, aninterest in the deposit which entitles him to appeal against the order underSection 9.

46. As to the locus standi of the Superintendent ofInsurance, Nasim Ali J. observed:

By Section 106A of the Insurance Act when an application ismade to the Court for the making of any order under Section 9, the Court isbound, unless the Superintendent of Insurance has himself made the applicationor has been made a party thereto, to send a copy of the application togetherwith intimation of the date fixed for the hearing thereof and to give him anopportunity of being heard. Notice under Section 106A was served on him. He wasmade a party to the proceeding by service. He opposed the application and thedecision was against him. I am, therefore, of opinion that he is entitled toappeal. Crawcour v. Salter (1882) 30 W.R. 329; In re Lamb. Ex parte The Boardof Trade (1894) 2 Q.B. 805, 812, 813 and the observations of the majority ofthe Judges in Ex parte Official Receiver. In re Reed, Bowen and Company (1887)19 Q.B.D. 174.

47. The observations of Lort-Williams J. in the two casesmentioned above appear to me to be in the nature of obiter dicta and notnecessary for the purposes of those cases. His Lordships opinion was based onthe case of Security Insurance Company (supra). That case was decided onSection 124 of the English Act of 1862, which I have quoted above. It willappear that that section allowed re-hearings of and appeals from order made inthe winding-up of a company in the manner and subject to the same conditions inand subject to which an appeal could be had from any order made by the sameCourt in cases within its ordinary jurisdiction subject to the restriction asto the service of notice within a specified time and in the manner in whichnotices of appeal were ordinarily given according to the practice of thatCourt. By the reference to the "manner", the section expresslyattracted the practice of the Court, which in company matters was the ChanceryCourt. As pointed out in Securities Insurance Cos case (supra) the Chancerypractice was that a stranger who was adversely affected by an order couldappeal only with leave of the Court. That practice by Section 124 of the EnglishAct of 1862 received statutory recognition in respect of re-hearings andappeals from an order made in the winding-up and gave a statutory right ofre-hearing and appeal from such order to such a stranger subject to hisobtaining the leave of the Court. But, in our section, re-hearings of an appealfrom an order made in winding-up can be had in the same manner and subject tothe same conditions as an appeal may be had from an order made in a case withinits ordinary jurisdiction. The word "manner" in our Act attracts ourrules of procedure. As I have pointed out there was and is no general provisionin our Code of Civil Procedure of 1859, 1882 or 1908 or in the rules made underthose Codes or the Letters Patent authorising the Court to give leave to appealto any person who was a stranger to the proceedings. Therefore, a districtCourt on whom jurisdiction in company matters may have been conferred underSection 3 of our present companies Act can have, under the Code or rules andapart from any express statutory provision, no power to give leave to appeal toa person not a party to the proceedings before him. Has the High Courtexercising jurisdiction under the Companies Act any greater powder than that ofthe district Court in this behalf

48. Section 18 of the Charter of 1774 establishing theSupreme Court made it a Court of equity and authorised it to "administer"justice, in a summary manner, as nearly as it may, according to"rules and proceedings of our High Court of Chancery in Great"Britain." Section 38 of that Charter authorised the Supreme Court toframe rules of practice. Unless, therefore, there was anything repugnant in therules framed under Section 38, the provisions of Section 18 may be said to haveimported into this country not only the substantive provisions of equity butalso the rules of procedure of the English Chancery Court including there-hearing in the nature of an appeal and the practice of giving leave to astranger to appeal. The High Courts Act, 1861, conferred on the High Courts tobe established all the jurisdictions of the Supreme Court, but this was subjectto the provisions of the Letters Patent to be issued constituting a particularHigh Court. The Letters Patent of 1862 constituted this High Court. UnderClause 18 of those Letters Patent, the High Court was enjoined, in exercise ofits Ordinary Original Civil Jurisdiction, to apply such law or equity as wouldhave been applied by the Supreme Court. There was no reference to or mention ofthe rules of practice or procedure in that clause. Clause 37, which was headed"Civil Procedure", ordained that proceedings in matters testamentaryand intestate should be regulated by the rules contained in Charter 14 ofGeorge III, proceedings in matters matrimonial by the rules of the matrimonialCourt in England and proceedings in all other civil suits by the Code of CivilProcedure, Act VIII of 1859. Power was reserved to the Indian Legislature tomake rules relating to civil procedure. These Letters Patent were replaced bythe Letters Patent of 1865 which are still in force. Under Clause 19, the lawor equity to be administered by the High Court in exercise of its OrdinaryOriginal Civil Jurisdiction remains the same as under Clause 18 of the LettersPatent of 1862. Clause 37 of the Letters Patent of 1865 is headed "Civil"Procedure" and empowers the High Court to make rules and orders forthe purpose of regulating all proceedings in civil cases which may be broughtbefore the High Court, provided that, in making the rules and orders, the HighCourt shall be guided by the provisions of the Code of Civil Procedure, 1859and any modification thereof by competent legislative authority for India. OurCivil Procedure is now regulated by the Code of 1908 and various rules framedby the High Court. I am not aware of any general provision anywhere and nonehas been brought to my notice, which generally authorises the High Court togive leave to a person who was not a party to the proceedings to appeal from anorder made on those proceedings. On a perusal of the Statutes, Charter andLetters Patents which I have mentioned, whatever may have been the position ofthe Supreme Court, I am not of opinion that this High Court can now adopt andapply the rules of practice and procedure of the Chancery Courts in England asdistinct from the substantive rules and provisions of equity and allow are-hearing in the nature of an appeal or give leave to a stranger to appealfrom an order made in proceedings to which he was not a party. In this view ofthe matter, I am bound to say, in spite of the utmost respect, which I alwayshave for the opinions of Lort-Williams J., that the broad proposition impliedin his above-quoted observations, namely that a stranger to the proceeding mayappeal with the leave of the Court does not appear to me to be well founded orcorrect so far as this High Court is concerned. I am fortified in myconclusions by the fact that, where it has been the policy or intention of thelegislature to give a right of appeal to a stranger or to empower the Court togive leave to appeal to a stranger, it has done so expressly and specifically.Thus Section 75 of the Provincial Insolvency Act gives a right of appeal to--

the debtor, any creditor, the receiver or any other personaggrieved by a decision come to or an order made in the exercise of insolvencyjurisdiction

as therein specified. Indeed Sub-section (3) of that sectionallows--

any person aggrieved by any other order made by a DistrictCourt other wise than in appeal from an order made by a subordinate Court toappeal to the High Court by leave of the District Court or of the High Court.

49. This section clearly and expressly gives a right ofappeal to a stranger and equally, clearly and expressly authorises the DistrictCourt and the High Court to give leave to a stranger to appeal. Likewise,Section 8, Sub-section (2) of the Presidency-towns Insolvency Act provides thatorders in insolvency matters shall, at the instance of any person aggrieved, besubject to appeal as mentioned in Clauses (a) and (b) that follow. I refer tothe Insolvency Acts, because the provisions thereof are in pari materia withthe provisions of the Companies Act, so far as they relate to winding-up. TheCompanies Act does not give any such general right of appeal to "anyperson aggrieved" or give any power to Court to give leave to appeal to astranger. There is nothing in the Code or the rules giving any such right to astranger or giving the High Court any general power to give leave to a strangerto appeal. The right of appeal is a creature of statute and in the absence ofany express statutory provision, it does not appear to me to be logicallycorrect to hold, as was held by Lort-Williains J., that such a right exists ina stranger in respect of an order made in the winding-up of Company.

50. After, however, registering my respectful dissent fromthe views of that learned Judge I find myself faced with a more formidabledifficulty, namely, the decision of the appeal Court in Governor-General inCouncil v. Sailendra Nath Mitra (supra). With the observations of Nasim Ali J.in that case regarding the locus standi as Appellant of the Superintendent ofInsurance, who was served with notice and appeared at the hearing and thusbecame a party thereto, I respectfully and entirely agree. I shall not disguisethe fact that I find it difficult to express my concurrence with His Lordshipsobservations regarding the right of appeal of the Governor-General in Council,who was not a party to the proceedings before the lower Court. I shall notattempt to evade that decision by trying to distinguish it on facts, forexample, by pointing out that Governor-General in Council may be taken to havebeen a party to the proceedings through its agent or officer, theSuperintendent of Insurance. It will, I conceive, be more respectful of me topoint out that the reasons stated above which make me dubious as to thecorrectness of the observations of Lort-Williams J. and those of the appealCourt do not appear to have been placed before the appeal Court and then to bowto and act on them than to attempt to distinguish them on some ground oranother. If this application could, therefore, be regarded as a re-hearing oran appeal within the meaning of Section 202 of the Companies Act, I would havefelt bound, in spite of my disinclination, to hold, on the authority of thedecision of the appeal Court, to which I have referred, that the Petitionerscould maintain it if they had obtained leave of the Court. As I have held thatI have no jurisdiction to hear this application regarded as a re-hearing or asan appeal within the meaning of Section 202, the questions of granting leavenow does not arise. I might have rested my decision on this question on theground that I have no jurisdiction to entertain this application as are-hearing or appeal within that section and not gone on to discuss the furtherquestion as to the locus standi of the Petitioners, but I have expressed myviews for the consideration of the appeal Court if this case goes before themand if it does not, in the hope that some day the appeal Court or theappropriate legislature may clarify the position, which should not be left indoubt.

51. Mr. Banerjee, appearing for the Petitioners, then seeksto support this application as one in the nature of a review. I have alreadyexplained that this application is neither a re-hearing nor an appeal withinSection 202 of the Companies Act. A review is not in the nature of an appealand therefore, cannot be included in the term "re-hearing" whichmeans proceedings in the nature of an appeal. There is no other provision inthat Act, which expressly provides for a review. It is significant that Section8, Sub-section (1) of the Presidency-towns Insolvency Act clearly and expresslyauthorises the Court to--

Review, rescind or vary any order made by it under itsinsolvency jurisdiction.

52. There is no such provision in the Companies Act. Section90 of the Presidency-towns Insolvency Act provides that, in proceedings underthe Act, the Court shall have the like powers and follow the like procedure asit has and follows in the exercise of its Ordinary Original Civil Jurisdiction.There is similar provision in Section 5(1) of the Provincial Insolvency Act.There is no corresponding provision in the Companies Act expressly attractingthe rules of procedure laid down in the Code of Civil Procedure or the rules.The only way to attract the rules of procedure is to fall back upon Section 141of the Code of Civil Procedure. Even if, by this process, the provisions of theCode are attracted it has to be seen whether those provisions can support thisapplication as a review. Review is regulated by Order XLVII of that Code.Although Rule 1, Sub-rule (1) of that Order opens with the words "anyperson considering himself aggrieved", the provisions of that sub-rule, asalso those of Sub-rule (2), make it clear that it is a "party" whoalone can apply for a review and a stranger to the proceedings cannot come in.In the next place, review can be allowed only on the grounds specified inSub-rule (1). In the third place, the form of preferring appeals apply mutatismutandis to applications for review. This requirement is made further explicit,so far as the Original Side is concerned, by Rules 34-37 of Ch. 31 of the OriginalSide Rules. The Petitioners did not comply with Rules 58 and 59 of our CompanyRules and Hid not appear at the hearing and therefore, were not parties to theproceedings before Edgley J. I do not think even the Chancery Practice everauthorised the Court to give leave to a stranger to apply for review and I amnot prepared to extend the decision of the appeal Court to cover a review by astranger. In the next place, there is no allegation of discovery of new andimportant matter or evidence, which, after the exercise of due diligence, wasnot within their knowledge or could not be produced by them at the time whenthe order was made. Nor is there any mistake or error apparent on the face ofthe record, because the advertisements were duly published and there wasservice on the company, which, on the face of the affidavit of service,complies with Rule 56 of the Company Rules and Order XXIX, Rule 2 of the Code.Finally the form of this application does not satisfy the requirements of OrderXLVII, Rule 3 or Ch. 31, Rules 34-36 of our Rules.

53. Learned Counsel for the Petitioners next urges that thisapplication should be treated as an application in the nature of an applicationfor setting aside an ex parte decree. I say, in respectful agreement with SargentC.J. in the Bombay case, that the expression "re-hearing" does notcover such an application. There is no other provision in the Companies Act forrescinding an order such as there is in Section 8(1) of the Presidency-townsInsolvency Act. Section 141 of the Code of Civil Procedure may help to attractthe provisions of Order IX, Rule 13. It is said in Palmers Company Precedents,15th Ed., Part II, Ch. IX, at p. 133 that an order obtained by default may beset aside in a proper case under R.S.C. Order XXVII, Rule 15. No authority iscited for this proposition. Presumably the author had in mind the case of ReAston Hull Coal and Brick Company Limited (1882)45 L.T. 676. In that case, KayJ. expressed considerable doubt as to his jurisdiction to make the order.Further, in that case, the Applicant was the company itself and not a strangerto the proceedings. Palmer at p. 132 cites the case of Lyric Syndicate(Limited)(supra), to which I have referred earlier, apparently with approval.Learned Counsel for the Petitioners relies strongly on the case of Ex parteBarnett (1849) 1 DeG. and Sm. 744. 63 E.R. 1277 as showing that an ex partewinding-up order could be set aside on the application of contributories whohad not appeared at the hearing. The observations of Knight Bruce V.C. clearlyindicate that there was no satisfactory compliance with the provisions as toservice required under Section 10 of the winding-up Act of 1848. That case may,therefore, be supported, if at all, on the peculiar facts of that case showingsuppression of service and of material facts amounting to fraud practised onthe Court and on the Chancery Practice of re-hearing by a Judge of his owndecision or that of his predecessor. If, however, the analogy of Order IX, Rule13 is applied, it is only the party against whom the order is made ex parte whomay apply to have it set aside and he may do so on proof of certain things. AsI have explained, neither of the Petitioners was a party to the proceedingsbefore Edgley J. The advertisements were duly published in the Calcutta Gazetteand two daily papers. Neither of them took steps to become a party to theproceedings by giving the requisite notice under Rule 58 of the Company Rulesor by filing his affidavit under Rule 59 or even by appearing at the hearingwith the leave of the Court. I have not been referred to any Chancery practiceauthorising the Court to give leave to a stranger to apply for setting aside anex parte order. Nor am I prepared to extend the appeal Court decision to cover sucha case. It is said that the Petitioners were prevented from appearing at thehearing by reason of the fact that they had no knowledge of the presentation ofthe petition, for they do not read any newspaper other than Daily Viswamitraand no advertisement was published therein. It is not a case of being unable toread the English or Bengali language, but it is a case of not being in thehabit of reading newspaper in English or Bengali. If I were to set asidewinding-up orders on the mere ground that a particular creditor or a particularcontributory of the company does not read a particular newspaper it will beimpossible to get on with the company list or with the winding-up of anycompany. The parties were at loggerheads since September, 1946. There wereproceedings in Howrah Court under Section 144/145 of the Code of CriminalProcedure. One of the Petitioners, Muralilal and his constituted attorney,Kalanaria, filed a suit in this Court on January 2, 1947 and there were severalcontested applications in that suit including a contempt application. Thewinding-up petition appeared in the daily cause list on the 12th, 13th, 14thand 15th May, 1947. It is asserted by Manabendra in his affidavit in oppositionthat the Petitioners attorney, Mr. P.K. Bose and Kalanaria used to be presentin Court every day when the application appeared in the list. Kalanaria deniesthat he attended Court on any of those days and states that he has beeninformed by Mr. P.K. Bose that the latter attended Court on the business ofother clients. As regards Kalanarias presence, it is oath against oath. Asregards Mr. P.K. Bose, I do not for a moment doubt that Mr. Bose, who has afairly large volume of work in company matters, may have had some otherbusiness in that Court on those days, but I do think it is somewhat improbablethat he would have missed the item "Re East Indian Cotton Mills,Ltd." on his copy of the daily cause list for four days running. There isno affidavit from Mr. P.K. Bose. I am not suggesting that the knowledge aboutthe pendency of the winding-up petition of Mr. P.K. Bose, who is attorney ofthe Petitioners in the suit, can in law be imputed to the Petitioners in thewinding-up matter, but it certainly has a bearing on the probability of actualknowledge of the Petitioners and their constituted attorney of that fact.Murarilal was in jail, but he filed his suit while he was there. According tothe Petitioners, on the death of Motilal Garodia, there was no dissolution ofthe firm of Managing Agents and the heirs of Garodia became partners. There wasalso N.N. Movani, another partner. There was Kalanaria, the constitutedattorney. It is somewhat improbable that persons carrying on business asmanaging agents of a cotton mill do not read the daily newspapers, in whichcompany notices are usually published and that none of them had any knowledgeof the advertisements published in the "Amrita Bazar Patrika" or"Ananda Bazar Patrika" or the "Calcutta Gazette." Further,the alleged non-service of the petition on the company, as to which more willbe said hereafter, cannot, in my opinion, be founded upon by the Petitioners. Iam not satisfied that any sufficient ground has been made out, which can besaid to have prevented the Petitioners or either of them from appearing at thehearing so as to entitle them to ask for setting aside the order for winding-upon the analogy of Order IX, Rule 13.

54. Mr. Banerjee takes his stand on the plea that the Courthas inherent power to set aside an ex parte order and relies on the observationsof a Full Bench of this Court in Bibee Tulsiman v. Harihar Mahato (1904) 9C.W.N. 81 which was followed by Woodroffe J. in Sudevi Devi v. SovaramAgarwallah (1906) 10 C.W.N. 306. As emphasised by the Earl of Halsbury in Quinnv. Leathem. (1901) A.C. 495, 506, every judgment must be read as applicable tothe particular facts of that case and that a case is only an authority for whatit actually decides. In the first mentioned case, the mortgagees obtained apreliminary decree under Section 88 of the Transfer of Property Act and pendingan appeal preferred by the mortgagors, obtained an order absolute for saleunder Section 89, in execution of which a part of the mortgaged properties wassold for Rs. 9,100 and the whole decretal amount of Rs. 8,750 was withdrawn.The High Court, on appeal, modified the preliminary decree by reducing theamount to Rs. 8,234-4. This decree was made absolute on the application of themortgagees without notice to the mortgagors and the latter applied underSection 108 of the Code of Civil Procedure (now. Order IX, Rule 13). The lowerCourt held that there was no provision for setting aside an order absolute. TheFull Bench held that the Court had inherent power to do so and set aside the exparte order. It will be noticed that the Applicants in that case were themortgagors, who were Defendants in the suit and not strangers. Likewise theApplicant before Woodroffe J. in the second case was the Defendant and not astranger. Neither of those two cases can, therefore, be said to be an authorityfor the proposition that the Court has an inherent power to set aside an exparte, order at the instance of a stranger. Learned Counsel for the Petitionersreferred me to the case of Gobardhan Das Chuni Lal Dakuwala v. KanthimathinathaPillai (1921) A.I.B. (Mad.) 286, as an instance where an ex parte order was setaside on the petition of a stranger. In that case, the Official Liquidatorwrote a letter to the District Judge intimating that he had received an offerfor a certain property of the company and recommending its acceptance. After apersonal interview with the Official Liquidator, the District Judge passed anorder permitting the Official Liquidator to sell the property at the priceoffered upon some condition as to deposit of money by the intending purchaser.There was no application or any Court proceeding on which this order was made.It was made as a purely administrative order. Then the former manager of thecompany presented a petition, stating that the price offered was grossly lowand brought an offer for a very much higher sum. The District Judge thendirected notice to be given to all parties including the former intendingpurchaser and after hearing all of them passed an order on the applicationannulling the previous sale and directing sale to the second intendingpurchaser. The first purchaser appealed. As I have said, the first order forsale was an administrative order. The second order was on a petition on noticeto all persons interested and one of such persons appealed. I fail to see howthis case helps the Petitioners. I have not been referred to any case where aperson who is not a party to a proceeding has been permitted to ask the Courtin exercise of its inherent powers to set aside an ex parte order made therein.The doctrine of inherent power like that of public policy is to be applied withextreme caution and cannot be invoked in aid of a proceeding which is notfounded on sound legal principles and is not supported by any known rule ofpractice or procedure. I decline to invent novel inherent power, particularlywhen the Petitioners have, on a proper case being made out, the right to applyfor stay of the winding-up proceedings under Section 173 of the Companies Act.

55. Finally, Learned Counsel falls back on the principlethat the order, not having been perfected by being drawn up and filed ofrecord, the Court has power to re-hear the matter. There is no doubt about theprinciple. It has been recognised even since Jessel M.R. affirmed thisprinciple in the course of arguments in the case of St. Nazaire Company(supra). This principle has been applied in numerous cases in England as wellas in India. But the application for re-hearing in that English case was madenot by a stranger but by a party to the order which was sought to bedischarged. In In re Australian Direct Steam Navigation. Millers case (1876) 3Ch. D. 661; which was also before Jessel M.R. and referred to by him in thelater case the order was not drawn up and the matter was re-heard, but that wasat the instance of the parties to the proceedings. The Petitioners did notcomply with the company rules and were not parties to the proceedings. By nothaving complied with the rules, they lost the right of appearing at the hearingexcept with the leave of the Court. At the hearing, they did not ask for leaveto appear and did not appear. The position, therefore, is that persons who werestrangers to the proceedings and who could not be heard at the originalhearing, for reasons I have stated, now want the Court to hear them and setaside the order already made. Again I say that, if I were, in every case, toexercise my power of re-hearing, on the ground of the order not having been yetdrawn up, at the instance of persons who might have made themselves parties butdid not, it will be difficult to get on with the business of the Court and itwill be putting a premium on default in compliance with the rules. Further,what special merit have these Petitioners apart from the fact that they do notread particular newspapers in which the advertisements of the date of hearingof the petition were issued Here, I am pressed with what has beeneuphemistically called the background of facts, which, in plain words, may becalled matters of prejudice. It is said that, finding that the company hadattained considerable success, Manabendra began to attempt to get back controland with that end in view, called bogus meetings of directors and share-holdersand purported to pass illegal resolutions and he wrongfully took recourse topolice proceedings. As I have said, those matters will be gone into in the suitfiled by the Petitioner Murarilal and Kalanaria and I do not consider it rightto express any opinion on the charges and counter-charges made by them. It isthen said that, being baffled in those attempts, Manabendra procured ShivaPrasad to make the winding-up application, that it was not a bona fideapplication, but had been engineered by Manabendra and that by suppressing theservice of the petition on the company Manabendra has procured the winding-uporder. This leads me to look into the circumstances in which the petition cameto be filed and the winding-up order to be made.

56. The facts are as follows: In June, 1944, one Achut Anantfiled a suit in this Court (No. 786 of 1944) against the company and ShivaPrasad as managing director. There was a decree against the company for costsin favour of Shiva Prasad in December, 1945. Shiva Prasads costs were taxedand the allocatur for Rs. 1,015-8-1 was issued in July 1946. That allocaturwas, on July 31, 1946, Served on Messrs. Mullick and Palit who were thecompanys attorneys in that suit. On August 1, 1946, a letter of demand wassent by Shiva Prasads attorneys to Mullick and Palit. There is no dispute asto these facts. No notice appears to have been taken by the company to pay upwhat is now called a paltry sum, although the managing agents are said to bemillionaires. So far I see no vestige of collusion between Manabendra and ShivaPrasad. Shiva Prasad alleges that he made several verbal requests for paymentto Murarilal, which may be quite natural and probable. On December 19, 1946,Shiva Prasad, through his attorneys, sent a statutory notice by registered postaddressed to No. 120, Maharshi Debendra Road. In January, 1947, Shiva Prasadcame to learn that the registered office of the company had been shifted to No.7-G, Clive Row, and therefore, for greater safety, he caused a fresh statutorynotice to be sent to that office. The two postal acknowledgment receipts whichare in evidence purport to have been signed "for East India Cotton Mills,Ltd." It is the Petitioners case that the managing agents have all alongbeen in possession of the office and the mills. How could the managing agentsmiss the letters delivered at the registered office and actually received bysome one in the office The statutory notices were mere continuation of theprocedure for enforcing Shiva Prasads claim. It is true that disputes hadalready arisen between Manabendra and the managing agents in September, 1946,but how is Shiva Prasad interested in or connected with those disputes and whyshould Shiva Prasad try to suppress the statutory notices which were to be thefoundation of his contemplated proceedings Why should he go out of his way tosend a second statutory notice and how could the second notice addressed to aplace which was the business place of the company as well as of the firm of themanaging agents be suppressed by Shiva Prasad This is all improbable. Toproceed, Shiva Prasad presented his petition to Court on March 25, 1947, whenthe Court fixed the hearing for May 12, 1947 and gave directions foradvertisements and for service on the company. As there was some difficulty ingetting in the advertisement in the "Statesman," Edgley J. modifiedthe directions by substituting "Amrita Bazar Patrika" for the"Statesman". Advertisements were duly published in the "CalcuttaGazette", "Amrita Bazar Patrika" and "Ananda BazarPatrika" as stated in the affidavit of compliance affirmed by AmulyadhanGhosh, a clerk in the employ of Shiva Prasads attorneys. That affidavit alsoproves service of the petition on the company on April 10, 1947, at itsregistered office, where the copy of petition and the order were left with oneRam, said to be an employee of the company. If Ram was a servant of thecompany, as alleged, it was proper service on the company under 56 of ourCompany Rules as well as Order XXIX, Rule 2 of the Code. Manabendra, as acreditor, on May 9, 1947, under Rule 58, gave notice to Shiva Prasadsattorneys of his intention to appear and support the application. The matterappeared in the daily cause list on the 12th, 13th, 14th and 15th May, 1947,when the winding-up order was made and a liquidator was appointed. Neither thecompany nor any creditor or contributory appeared to oppose the application. OnMay 17, 1947, the liquidator sealed the registered office and proceeded to takepossession of the mills. On or about May 19, 1947, the Petitioner Dulichandapproached Shiva Prasad and obtained an assignment of the latters claim andcosts and an undertaking not to proceed further in the matter by paying Rs.2,000. On the same day, Shiva Prasads attorneys wrote to the liquidator thatShiva Prasads claim had been satisfied and he would not take any further stepin the matter of taking possession. Where, I ask, is there any evidence ofcollusion Why should Shiva Prasad, if he was a creature of Manabendra, assignhis debt to Dulichand and thereby give the Petitioners an excuse for applyingto Court It is said that Manabendra went to the mills, when the liquidatorwent there to take possession. Why should not he go As a creditor and as a director,he was interested to see that the companys properties were in safe hands. Hewould have been less than human if, in the circumstances that had happened, hedid not accompany the liquidator to the mills. It seems to me on the materialsbefore me from beginning to end Shiva Prasad followed a normal and naturalcourse of conduct of a bona fide creditor and that the charge of collusionagainst him has been made recklessly and without any foundation. Indeed,realising that the facts do not in any way support the charge, the Petitionersin para. 9 of the affidavit in reply to Shiva Prasads affidavit havepractically abandoned the charge by saying that Shiva Prasad might not havebeen actually set up by Manabendra, but he suppressed the service of the petitionon the company. If Shiva Prasad had not been set up by Manabendra, but was abona fide creditor, who presented the winding-up petition, if he got theadvertisements duly published, why should he suppress the service of thepetition on the company In my experience, as an advocate as well as a Judge ofthis Court, whenever an ex parte order is sought to be set aside on the groundof non-service of the summons, the affidavit of service is the first thingwhich is attacked. Apart from a bare denial of service and a grievance that thepetition was not served on the managing agents, there is not a word in thepetition that the company had no servant of the name of Ram, which name wasspecifically mentioned in the affidavit of service affirmed by Amulya DhanGhosh. Shiva Prasad and Amulya Dhan Ghosh have filed two affidavits inopposition to the present application. Amulya reiterates that he went to theregistered office and found Ram, who was a servant of the company and left thecopies with him. It is only in the affidavit in reply that the Petitioners forthe first time say that the company had no servant of that name. LearnedCounsel for the Petitioners tell me that the pay book of the company will showand Murarilal is prepared to go into the box and swear that the company had noservant called Ram and pressed me to set down the application for trial onevidence if necessary. The Petitioners have taken no step to get the companyspay book to be produced before me. On the other hand, Learned Counsel for.Manabendra has caused to be produced an affidavit by one Sri Ram Singh, anemployee of the company, affirmed on January 21, 1947 and prepared in theoffice of the Petitioners attorneys and filed in suit No. 17 of 1947 in thisCourt. Learned Counsel for the Petitioners says that the company may have manyemployees with Ram, as part of their names such as Sri Ram, Ganga Ram or HariRam, but it never had a servant called Ram simpliciter. Seeing that ShivaPrasad was a bona fide creditor Petitioner, that the charge of collusionagainst him has been recklessly made in the petition but subsequently withdrawnin the affidavit in reply, that public advertisements have been duly issued andthat the company has admittedly a servant of the name of Sri Ram Singh, I amnot prepared to hold that Shiva Prasad suppressed the summons and Amulya DhanGhosh invented an imaginary Ram and affirmed and filed two false affidavits. Itis said that if the company had really received the statutory notices and hadbeen properly served with the petition and if Kalanaria or Mr. P.K. Bose hadknowledge of the pendency of the petition, why should not have the managingagents paid up the paltry sum Why did not they pay in July, 1946, when theallocatur had been served and the demand letter was sent to the companysattorneys Messrs. Mullick and Palit Manabendras claim is said to have beensettled at and for Rs. 25,000 and the company issued a cheque for that amounton August 17, 1944. That cheque was renewed on February 15, 1945, by a freshcheque which again was renewed by a third cheque, dated December 1, 1945. Inthe meantime the company went on paying interest. The last mentioned cheque wasdishonoured on presentation. After the winding-up order had been made, thecompanys attorneys, on May 27, 1947, sent a cheque for Rs. 26,354-2-9 toManabendra which was refused. Why did not the millionaires pay up Manabendrabefore For some reason or other, they may not at that time have considered itnecessary or convenient or of advantage to themselves to contest the winding-upapplication; may be they thought they would buy up the mills cheap at the saleto be held by the liquidator. It is not for me to speculate as to their motive.The fact remains that a bona fide petition followed its normal course and forsome reason or other the company or its managing agents did not appear tocontest it. I am not prepared to say on the evidence before me that the serviceof the petition was suppressed or that the company was prevented from appearingat the hearing. Further, the Petitioners cannot make the alleged non-service ofsummons on the company a ground for now attacking the order, when the publicadvertisements meant generally for creditors and contributories were dulypublished. I have not known of a case where, at the instance of a Defendant whohas been properly served but did not appear, an ex parte decree has been setaside on the ground that the summons had not been duly served on anotherDefendant. Order IX, Rule 13, does not permit such a course. Again, if thenon-service of the petition on the company went to the root of the jurisdictionof the Court to make the order, that was a defence to the application on itsmerits which should have been urged at the hearing of the petition. I do notthink it can be advanced at this stage.

57. Mr. Hazra appearing for the company contends that thecompany is a party to this application, that it is virtually the companysapplication and that the company is entitled to have the ex parte order setaside on the ground of non-service of the petition. If, on a winding-up orderbeing made, the company may appeal from it independently of the liquidator asshown by the cases of In re Diamond Fuel Company (1879) 13 Ch. D. 400 and RiponPress and Sugar Mill Company Limited v. Gopal Chetti (1931) I.L.R. 55 Mad 180 :I.L.R. 58 IndAp 416, why Mr. Hazra argues, should it not be entitled to applyfor setting aside the order independently of the liquidator Mr. R.. Chaudhuriappearing for the liquidator, has drawn my attention to Section 172(3), whichprovides that a winding-up order is to be deemed to be a notice of discharge,to the servants of the company, to Section 208A(2), under which, on theappointment of a liquidator, the powers of directors cease and to Halsburys Lawsof England, 2nd Ed., Vol. 5, Article 917, at p. 573. Mr. Das Gupta appearingfor Manabendra, however, does not seriously dispute the companys right toapply for setting aside the order if a proper case could be made out. In thesecircumstances, I am prepared, for the purposes of this application, to assumethat the company may, independently of the liquidator, maintain such anapplication. But the fact is that the company has not made any suchapplication. The company has only filed a warrant of attorney and appearedthrough counsel to support this application. No affidavit has been filed onbehalf of the company. The warrant of attorney is dated August 14, 1947. Thatis much more than thirty days after the date of the order or the date ofknowledge of the order, for when the liquidator sealed the companys office onMay 17, 1947, the company must have had knowledge of the order. The warrant issigned as follows:

East India Cotton Mills, Ltd., Motilal Murarilal andCompany, Managing Agents.

58. Under Article 181(h), the directors have the power toinstitute or defend any legal proceedings by or against the company or itsofficers or otherwise concerning the affairs of the company. This power is,however, subject to the provisions of Articles 185 and 188. Article 185provides that the business of the company shall be carried on by the managingagents, subject to the direction and control of the directors. Article 188prescribes the powers and duties of the managing agents. The language of thisArticle makes it clear that the powers conferred on the managing agents are forthe purpose of carrying on the business of the company. The words "and toexercise all the powers, authorities and "discretions of the company andthe directors" must be construed as limited to the carrying on of thecommercial activities or business of the company and cannot be read asconferring on them power to institute proceedings in Court and certainly not toinstitute proceedings not connected with or not arising out of any actual andparticular commercial transaction of the company. In this view of the matter,the company is not properly before me at all. Finally, on the evidence beforeme, I am not, as I have said, prepared to hold that there was any suppressionof service of the petition on the company.

59. For reasons stated above this application, in so far asit asks for setting aside the order of winding-up, must be refused.

60. In this application, the Petitioners also pray for thestay of the winding-up proceedings under Section 173 of the Companies Act. Thissection comes into play after an order for winding-up has been made. Itpre-supposes a good and valid winding-up order. In an application under thissection, there can be no question of attacking the order. Any creditor orcontributory may make an application under this section. Therefore each of thePetitioners is fully qualified to maintain this application in so far as it isone under this section. The company, however, independently of the liquidator,does not appear to me to have any locus standi in such an application. Thesection requires proof to the satisfaction of the Court that all proceedings inrelation to the winding-up ought to be stayed. What has happened to justify astay of proceedings I have already dealt with and rejected the allegations ofcollusion between Shiva Prasad and Manabendra and the suppression of service ofthe petition. Has anything happened since the order was made All that hashappened is that the petitioning creditor has been satisfied, not by thecompany but by Dulichand, a creditor of the company. But is the satisfaction ofthe petitioning creditors debt by itself sufficient to stay the winding-upwhen there are other creditors It is said that Dulichand, who, in his firm ofMurarilal Dulichand, claims about Rs. 90,000 and Jewraj Ram Kissen, who claimsalso about Rs. 90,000 and is represented by Mr. M.N. Banerjee, are supportingthis application. On the other hand, there is the creditor Manabendra.Manabendra claims to be a creditor in the sum of Rs. 5,24,651. It is probablethat he agreed to accept Rs. 25,000. I do not propose to go into the questionwhether the settlement with him was on any condition or whether the conditionhas been broken. Admittedly, Rs. 25,000 is due to him. The Petitioners throughtheir counsel offered to pay Rs. 25,000 to him in full settlement whichManabendra is not prepared to accept. There is also one Khagendra Lal Shaha whoappeared before Edgley J. and filed an affidavit claiming Rs. 6,444-4-6 andobjected to any stay, but who has not been served with the present summons.Lastly, there are the banks and other creditors shown in the balance-sheet asat December 31, 1944, about whose claim nothing has been said in the petitionand the affidavits before. Further, even if all the creditors consent to astay, is the Court bound to grant a stay The principles on which the Courtproceeds on an application of this kind have been summarised in Halsburys Lawsof England, 2nd Ed., Vol. 5, Article 1209, at p. 724, in the following terms:

In the exercise of its jurisdiction to stay, the Court, sofar as possible, acts upon the principles applicable in exercising jurisdictionto rescind a receiving order or annul an adjudication in bankruptcy against anindividual. The Court refuses, therefore, to act upon the mere assent of thecreditors in the matter and considers not only whether what is proposed is forthe benefit of the creditors, but also whether the stay will be conducive ordetrimental to commercial morality and to the interests of the public at large.In particular, the Court will have regard to the following facts: Thatdirectors have not complied with their statutory duties as to givinginformation to the official receiver or furnishing a statement of the affairs;that there has been an undisclosed agreement between the promoter and thevendor to the company as to the participation by the former in fully paid upshares forming the consideration for the purchase of property by the company onits formation; that the promoter has made gifts of fully paid up shares to thedirectors, that these are other matters connected with the promotion,formation, or failure of the company or the conduct of its business or affairs,which appear to the Court to require investigation. The same principles areapparently applicable whether the company has or has not invited the public tosubscribe for its shares except, possibly, in the case of a private company,where all the shareholders have full knowledge of what has been done.

61. This summary of the law is based on the observations ofBuckley J. in the case of In re Telescriptor Syndicate, Limited (1903) 2 Ch.174, 180, wherein reference was made to the trenchant observations of Fry L.J.in the earlier case of In re Hester (1889) 22 Q.B.D. 632, 641. I, thereforeproceed to consider the facts in the light of these principles.

62. What facts have I before me:

(a) There is no allegation that all the creditors areconsenting to this application; indeed one of them at least is opposing it.

(b) There is nothing to show that a stay will be better thanwinding-up except the general observation that winding-up is always costly anddilatory.

(c) No balance-sheet appears to have been prepared or filedsince December 31, 1944.

(d) No ordinary general meeting has been held for a longtime and at any rate since 1945.

(e) There does not appear to have been any election ofdirectors since 1946.

(f) One of the partners of the firm of managing agent hasbeen twice convicted of bribery and of black-marketeering in respect offourteen bales of cloth of this company.

(g) Fighting is going on between two factions sinceSeptember, 1946.

(h) Every possible obstruction was placed in the way of ,theliquidator taking possession of the assets of the company.

(i) There has been no investigation into the affairs of thecompany and the conduct of persons in charge of its business.

62. This, in short, is the overall picture before me. Howcan it be said in these circumstances that further proceedings in winding-upshould be stayed I know nothing about this company and no information as toits present financial position. At one time I thought of directing theliquidator to convene a meeting of creditors and share-holders to ascertaintheir wishes. An extraordinary general meeting of share-holders appears to havebeen already held on the 2nd January, 1947, which is said to have unanimouslyapproved of the discharge of the managing agents. Apart from that, as on theauthorities, the opinion of the creditors or share-holders is not by itselfdecisive but is only an element to be taken into consideration and as theaffairs of this company appear to require close investigation in view of theblack-marketeering activities of one of the partners of the firm of managingagents, I do not think any useful purpose will be served by calling such ameeting. In my judgment, the Petitioners have not, on this application, placedbefore me such information or material as will enable me to say that I am atpresent satisfied that the winding-up proceedings should be stayed. In thisview of the matter the Petitioners are not entitled to a stay of the winding-upproceedings.

63. The result, therefore, is that this application must bedismissed. The Petitioners must pay the costs of the liquidator, Manabendra andthe petitioning creditor of and incidental to this application.

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In Re: East India Cotton Mills Ltd. (13.02.1948 - CALHC)