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Lakshminarasayya Setti Vs. Venkanna Setti and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad576
AppellantLakshminarasayya Setti
RespondentVenkanna Setti and ors.
Excerpt:
companies act - act vi of 1882, section 169--appeal from order in winding up--ex parte application for extension of time--service of notice within the extended time-- validity of extension made on ex parte application--right of respondents to raise objections at hearing of appeal. - - but the point having just been raised and argued not fully 1 refrain from expressing any opinion on the question as to whether the latter part of section 169, which prescribes a period of three weeks from the date of the order complained of for giving notice of the appeal, reduces the ordinary period of appeal given by the first part of the section to the making of the appeal, viz......from the date of the order complained of for giving notice of the appeal, reduces the ordinary period of appeal given by the first part of the section to the making of the appeal, viz., 90 days plus the time requisite for obtaining copy of the order appealed against to a period being the difference between the three weeks and the time occupied during those three weeks in serving notice of the appeal on the respondent after the appeal has been filed, subject to the proviso that if notice is not served within the three weeks the time for service may by special order of the appellate court be extended, nor do i express any opinion that the notice of appeal referred to in the latter part of the section, if it means notice to the other party of an intended appeal, should necessarily be.....
Judgment:

Davies, J.

1. The respondents were served with notice of the appeal within the extended time allowed by a Bench of this Court, but the respondents allege that the time should not have been extended without notice to them, or at any rate that they should now be permitted to urge their objections to the extension. I am of opinion that no notice was necessary in the first instance, but as the order extending the time was passed ex parte, I think the respondents are now entitled to object thereto.

2. As in my opinion, however, the appeal against the order must, under Section 169 of the Indian Company's Act, 1882, itself be filed within three weeks of the date of the order at the very latest, it makes it practically impossible to have the notice of the appeal also served within that time. It follows that the Court could not reasonably have refused the extension applied for. The preliminary objection is therefore overruled. On the merits, I consider the Judge was right in dismissing the application, for the charges therein made are too vague, and there is nothing tangible to go upon. Further, there is no distinct averment of any loss. This appeal is therefore dismissed with two sets of costs--one for the first respondent and the other for the fifth and seventh respondents.

Bhashyam Ayyangar, J.

3. I agree. But the point having just been raised and argued not fully 1 refrain from expressing any opinion on the question as to whether the latter part of Section 169, which prescribes a period of three weeks from the date of the order complained of for giving notice of the appeal, reduces the ordinary period of appeal given by the first part of the section to the making of the appeal, viz., 90 days plus the time requisite for obtaining copy of the order appealed against to a period being the difference between the three weeks and the time occupied during those three weeks in serving notice of the appeal on the respondent after the appeal has been filed, subject to the proviso that if notice is not served within the three weeks the time for service may by special order of the Appellate Court be extended, nor do I express any opinion that the notice of appeal referred to in the latter part of the section, if it means notice to the other party of an intended appeal, should necessarily be served through the Court. The solution of the former question depends upon the correct interpretation to be put upon the expression 'notice of the same,' i.e., notice of the rehearing or appeal which occurs in the latter part of the section. If it means notice to the other party of the appeal which has been made or filed the appeal of course should have been preferred in sufficient time before the expiration of the three weeks. But if its correct interpretation having regard to the former part of the section be 'notice of appeal to be made or of the appeal if any already made' then the ordinary period of limitation for making the appeal apart from the period of three weeks prescribed by the section for giving notice of the appeal whether the same has been filed or is only intended to be filed remains unaffected. I also refrain from expressing any opinion as to whether the giving notice of appeal within three weeks in the manner in which notices of appeal are ordinarily given under the Civil Procedure Code is not simply the lodging of the memorandum of appeal and not the service of the notice of hearing of the appeal on the respondent or of giving him notice of the intended appeal. Even if this were the correct interpretation of the section, as I am inclined to think that it is, there were reasonable grounds in this case for the extension of the three weeks prescribed by the latter part of the section, inasmuch as the general impressions supported by the assumptions made in judicial decisions of this High Court and of the Calcutta High Court is that the appeal itself should be made within three weeks and notice of hearing of appeal also served upon the respondent within the three weeks unless the period of three weeks be extended by an order of the Court.


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