S.N. Andley, J.
(1) This is an application under Rule 101 of the Companies (Court) Rules 1959 which has been filed by Messrs Bimal Brothers Private Limited an alleged creditor of Messrs Oriental Refrigeration & Engineering Company Private Limited. The preliminary objection which has been raised by the latter company is that the application is not maintainable as it was filed after the dismissal of C.P. No. 51 of 1969.
(2) C.P. No. 51 of 1969 was filed by Messrs Bhai Brothers Financiers Private Limited for the winding up of the said Oriental Refrigeration and Engineering Company Private Limited. This petition was admitted on August 25, 1969. The notices were published in the Official Gazette and the two newspapers as ordered by the Court on November 25, 1969. This petition had come up before the Court on December 8, 1969 on which date the counsel for the petitioning-creditor did not appear and the petition was. thereforee, adjourned to December 22, 1969. On December 22. 1969 counsel for the petitioning-creditor and for the Oriental Refrigeration and Engineering Company Private Limited appeared. It was stated that the petitioning-creditor had been paid and the matter the petitioner-creditor that he wanted to withdraw the petition. had been compromised. It was further stated by the counsel for Upon this statement the petitioning-creditor was permitted to withdraw the petition which was dismissed as withdrawn. Thereafter on January 6, 1970 the present application was filed under Rule 101 of the said Rules. It is stated in this application that on November 29, 1969 the applicant had sent a notice to the counsel for the said Messrs Bhai Brothers Financiers Private Limited, petitioning-creditor in C.P. No. 51 of 1969, expressing their intention to join the said winding up petition, a copy of which was demanded. The copy, it is alleged, was not supplied and the present applicant filed the application under Rule 101 of the said Rules on January 6, 1970 as stated above.
(3) Rule 101 of the said Rules provides for substitution of creditor or contributory for original petitioner and is in these terms :
'WHEREa petitioner,- (1) is not entitled to present a petition, or, (2) fails to advertise his petition within the time prescribed by these Rules or by order of Court or such extended time as the Court may 'allow, or, (3) Consents to withdraw the petition, or to allow it to be dismissed, or the hearing to be adjourned, or fails to appear in support of his petition when it is called on in Court on the day originally fixed for the hearing thereof, or any day to which the hearing has been 'adjourned, or, (4) if appearing, does not apply for an order in terms of the prayer of his petition, or where in the opinion of the Court there is Other sufficient cause for an order being made under this rule, the Court may, upon such terms as it may think just, substitute as petitioner any creditor or contributory who in the opinion of the Court, would have a right to present a petition, and who is desirous of prosecuting the petition.'
(4) The controversy is with regard to the construction of sub-rule (3) of this Rule. As I read it, this sub-rule can be invoked where the petitioning-creditor consents to withdraw the petition or consents to allow it to be dismissed or consents to the hearing date to be adjourned or fails to appear in support of his petition when it is called on in Court on the date of hearing. Mr. Gaja Nand learned counsel for the applicant contends that the word 'consents' is to be read only with that part of the sub-rule which relates to the withdrawl of the petition and not to the other parts. Upon the construction of this sub-rule I do not find it possible to agree. The word 'consents' applies as much to the withdrawl of the petition as to the subsequent clause regarding its dismissal or an adjournment of the hearing. So read the sub-rule would clearly mean that the application for substitution must be made before the petition is actually dismissed by the Court either upon the petitioning-creditor consenting to withdraw it or consenting to allow it to be dismissed or consenting to its hearing being adjourned. Once the petition is dismissed under this sub-rule, there is no lis before the Court. For the application of Rule 101 the existence of the lis before the Court is, in my opinion, necessary.
(5) In the present case it is not disputed that the application under Rule 101 of the said Rules was made after the petition had been dismissed. That being so, the present application appears to me to be incompetent and is dismissed as such. There will be no order as to the costs.