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Grindlays Bank Ltd. Vs. C.R.E., Wood and Co. Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal Nos. 1201 of 1979, 3717 of 1982 and 404 of 1974
Judge
Reported inAIR1984Delhi138; 1983(5)DRJ362; 1983RLR745
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 10
AppellantGrindlays Bank Ltd.
RespondentC.R.E., Wood and Co. Pvt. Ltd. and ors.
Advocates: Sanjeev Seth and; V.V. Shastri, Advs
Excerpt:
code of civil procedure - order 22 rule 10--suit for recovery of money against a company being wound up was stayed by company court on 21-7-77-permission of company court to proceed with the suit was granted on 19-3-1980. defendant no. 10 died on 7-8-77 when the suit was not pending. the plaintiff moved application for bringing legal representatives on record before 19 3-80.; the suit may be deemed to have been revived on 19-3-80 and the plaintiff made the application before that date. the application was allowed. - .....of the code of civil procedure is to be filed during the pendency of the suit and as there was no suit pending on account of lack of permission from the company court and it is not necessary to file such an application till the suit is revived as defendant no. 10 died on a date when the suit was lying stayed. the plaintiff has also filed an application for condensation of delay under section 5 of the limitation act but the counsel submits that as the suit was lying stayed and there was no necessity to file any application before revival of suit, there is no question of condensation in filing the application under order 22 rule 4 of the code of civil procedure. the defendant no. 10 died when the suit was not pending. provisions of order 22 of the code of civil procedure would be.....
Judgment:

Sultan Singh, J.

(1) The plaintiff filed this suit for recovery against defendant No. I a Limited Company and others in 1974. On 6th April, 1977 a winding up order was passed against the defendant No. I. The proceedings in the suit were stayed sine die vide order dated 21st July, 1977. On 7th August, 1977 Shri P.L. Gay defendant No. 10 died. The plaintiff made application to the Company Court for leave to proceed with the present suit and permission was granted on 19th March, 1980.

(2) The present application under Order 22 Rule 4 of the Code of Civil Procedure for bringing on record the legal representatives of deceased defendant No. 10 was made on 24th November, 1978. Mr. Seth submits that the proceedings in the suit were stayed sine die on 21st July, 1977 and thus no suit was pending before the Court till the grant of permission by the Company Court to proceed against defendant No. 1. He further submits that as the permission was granted on 19th March, 1980 the suit shall be deemed to be revived and pending with effect from that date and not earlier. His submission is that application under Order 22 Rule 4 of the Code of Civil Procedure is to be filed during the pendency of the suit and as there was no suit pending on account of lack of permission from the Company Court and it is not necessary to file such an application till the suit is revived as defendant No. 10 died on a date when the suit was lying stayed. The plaintiff has also filed an application for condensation of delay under Section 5 of the Limitation Act but the counsel submits that as the suit was lying stayed and there was no necessity to file any application before revival of suit, there is no question of condensation in filing the application under Order 22 Rule 4 of the Code of Civil Procedure. The defendant No. 10 died when the suit was not pending. Provisions of Order 22 of the Code of Civil Procedure would be applicable if the suit was pending on the date of death of a party to the suit The suit may be deemed to have been revived on 19th March, 1980 when the plaintiff was granted required permission to prosecute the suit against the defendants. The plaintiff made the application for bringing on record the legal representatives before 19th March, 1980. Thus the legal representatives may be brought on record now and the suit be tried in accordance with law. The legal representatives of the deceased defendant No. 10 namely Mrs. P-L- Gay and Smt. Vinod Ravi daughter of the deceased as retailed in the application be thereforee, brought on record. Necessary amendments by made be the Registry in the memo of parties. The I.As. stand disposed of.


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