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V. Raja Manickavelu Vs. Official Liquidator High Court of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Judge
Reported in[1966]36CompCas562(Kar); (1965)2MysLJ169
ActsCompanies Act, 1956 - Sections 483; Mysore High Court Act, 1961 - Sections 4, 9, and 10
AppellantV. Raja Manickavelu
RespondentOfficial Liquidator High Court of Mysore and ors.
Appellant AdvocateE.S. Venkataramaiah, ;S. Nanjundaswamy and ;N. Balagopalan, Advs.
Respondent AdvocateV. Krishna Murti, ;V. Tarakaram, ;Kora Chandy, ;King, ;Partridge and ;T. Rangaswamaiengar, Advs.
Excerpt:
.....has jurisdiction to hear application for stay in original side appeal - whether under section 9 single judge has jurisdiction to stay operation of order of learned company judge when appeal against said order has to be heard only by bench consisting two other judges of high court - as per section 4 appeal shall lie to high court and shall be heard by bench consisting of two other judges of high court - appeal having been preferred to high court, high court has power to stay operation of order appealed against and that power has been conferred by section 9 to be exercised by single judge who hears interlocutory applications in appeals and other proceedings - as per order 41 rule 5 court which passed decree has jurisdiction to stay its own decree until appeal is preferred - preliminary..........bench of two judges. in appropriate cases, the single judge, under section 9, may adjourn the matter for being heard and determined by a bench; but that is in the discretion of the single judge. whether in exercise of that discretionary power i should adjourn the matter for being heard by a bench heard by a bench of two judges, does not arise for consideration at this stage, when i am dealing with the question of jurisdiction. 7. for the above reasons, the preliminary objection raised by mr. chandy is overruled and the interlocutory applications will be heard on merits.
Judgment:
ORDER

Govinda Bhatt, J.

1. This is an application for stay of the operation of the order dated June 4, 1965, made in Company Application No. 85 of 1964 by the hon'ble the Company Judge, pending disposal of the above appeal. When the stay application came up for orders on July 2, 1965, Mr. Chandy, the learned counsel for respondent No. 2, raised a preliminary objection to my hearing the application, contending th at only a Bench of two judges has jurisdiction to hear an application for stay in an original side appeal. The matter was, therefore, set for hearing on the question of jurisdiction.

2. The decisions on the question of jurisdiction rests on an interpretation of the relevant provisions of the Mysore High Court Act. 1961 (Mysore Act NO. 5 of 1962), hereinafter called 'the Act'. The Act makes a provision for the exercise3 of the powers of the High Court of Mysore in relation to the administration of justice. The provisions of the Act relevant for the decision are sections 4, 9 and 10. Section 4 provides that an appeal from a judgment, decree, order or sentence passed by a single judge in the exercise of the original jurisdiction of the High Court under the Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other judges of the High Court. Section 9 provides that the powers of the High Court in relation to the matters enumerated in clauses (i) to (xi) therein shall be exercised by a single judge, provided that the judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two judges. Clause (vi) of section 9 states that the powers of the High Court in relation to any matters of any interlocutory character in appeals shall be exercised by a single judge. Section 10 enumerates the matters in relation to which the powers of the High Court shall be exercised by a Bench of two judges.

3. The order under appeal was made by a single judge of this court in the matter of the winding up of a company had that order is appealed under section 483 of the Companies Act, 1956.

4. The question presented for decision is. whether by virtue of the powers conferred by section 9 of the Act, a single judge has jurisdiction to stay the operation of the order of the learned company judge, when the appeal against the said order has to be heard only by a Bench consisting of two other judges of the High Court. Mr. Chandy, the learned counsel for respondent No. 2, contended that it is only a Bench of two judges that is competent to stay the operation of the order under appeal and not a single judge; the learned counsel argued that only a higher court, which is company appeals is the Bench of two judges, that is competent to order the stay of the order under appeal and the learned company judge sitting on the original side of th e High Court is not a court lower to the single judge hearing interlocutory matter in appeals; further, as a matter of propriety and convention, any interlocutory matter relating to stay should be heard and decided by a Bench, since the decision of a single judge can be reversed only by a Bench of two judges. Reliance was also placed on the last clause of sub-rule (1) of rule (5) of order 41 of the Code of Civil Procedure, which states ' that the appellate court may, for sufficient cause, order stay of execution of such decree.' According to Mr. Chandy, any matter of an interlocutory character in appeals coming within the scope of section 4 of the Act does not fall within the scope of section 9; the argument was that the appeal under section 4 lies to a Bench and not to the High Court. The learned counsel sought support for his argument from sub- section (2) of section 2 of the Act, which states that an appeal lies to the High Court, while, according to the learned counsel, under section 4 the appeal lies to the Bench and not to the High Court.

5. Mr. G.S. Ullal, who has filed I.A. II. for impleading, intervened and he urged that if a single judge is to make an order of stay or reject an application for stay, in a company appeal, such an order is open to further appeal under section 483, and, in such an appeal, if an order of stay were to be made by a single judge, that order is again open to appeal and thus there will be an endless number of appeals, and therefore, the Act has to be construed in a manner as to avoid such endless appeals by holding that it is only a Bench that has jurisdiction to hear interlocutory applications in company appeals.

6. I am not disposed to agree with Shri Ullal that section 483 of the Companies Act contemplated more than one appeal, and that an order made on an interlocutory application in a company appeal is open to a further appeal. Even assuming that an order made by a single judge in an interlocutory matter in a company appeal is open to further appeal, that is not a relevant consideration for the purpose of construing the provisions of the Act, when they do not admit of any ambiguity. Section 483, in my opinion, does not deal with the jurisdiction of any court. What it provides for is merely for a right of appeal and the conditions under which an appeal shall lie. The exercise of the powers of the High Court is regulated by the Act. Section 4, as already stated, provides that an appeal shall lie from a decree or order of a single judge of the High Court to the same court and such an appeal shall be heard by a Bench consisting to two other judges of the High Court. The language of section 4 makes it clear that an appeal shall to lie High Court and it shall be heard by a Bench consisting of two other judges of the High Court. An appeal having been preferred to the High Court, the High Court has the power to stay the operation of the order appealed against, and that power has been expressly conferred by section 9 to be exercised by a single judge who hears interlocutory applications in appeals and other proceedings. It is the appellate powers of the High Court that the single judge exercises, when the statute has expressly conferred the power of the appellate court on a single judge and there is nothing in the Act to lead to a contrary construction. I do not see any reason to hold that because the appeal is against the order of a single judge, another single judge exercising the powers under section 9 is precluded from exercising that power. Under Order 41, rule 5, the court which passed the decree has jurisdiction to stay its own decree until an appeal is preferred. Under Order 45, rule 13, the High Court, which issues a certificate for appeal to the Supreme Court, has jurisdiction to stay its own decree. While exercising the powers of stay under rule 5 of Order 41 of the Code of Civil Procedure, the judge does not enter into the merits of the order or decree under appeal and all that he is required to consider is the matters enumerated in clauses (a), (b) and (c) of sub-rule (3) of rule of Order 41. Since the single judge does not have to consider the decision under appeal on merits, while hearing an application for stay, the legislature has apparently considered it unnecessary that the matter should be heard by a Bench of two judges. In appropriate cases, the single judge, under section 9, may adjourn the matter for being heard and determined by a Bench; but that is in the discretion of the single judge. Whether in exercise of that discretionary power I should adjourn the matter for being heard by a Bench heard by a Bench of two judges, does not arise for consideration at this stage, when I am dealing with the question of jurisdiction.

7. For the above reasons, the preliminary objection raised by Mr. Chandy is overruled and the interlocutory applications will be heard on merits.


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