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The Southern Indian Mills Co. Ld. Through Managing Director, Kanthi Mathinatha Pillay Vs. Burn and Co. Ld. and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.794
AppellantThe Southern Indian Mills Co. Ld. Through Managing Director, Kanthi Mathinatha Pillay
RespondentBurn and Co. Ld. and ors.
Excerpt:
companies act (vi of 1882), section 169 - framing of issues, whether an order--appeal, whether competent--civil procedure code (act v of 1908), section 104, order xliii, rule 1. - .....under the provisions of the indian companies act, 1882. a preliminary objection is taken that no appeal lies, and we think this contention must prevail. it is argued for the appellants that an appeal lies under section 169 of the act, but it is admitted that the notice required by the section has not been given within the time limited. we are asked to extend the time for such notice, and we would be disposed to do so if we were of opinion that an appeal on the merits does lie against the order of the district judge.2. we are however, of opinion that the framing of issues is not an 'order' within the meaning of section 169 of the companies act. order xiv, rule 5, civil procedure code, provides that the court shall at a certain stage of the suit 'ascertain upon what material propositions.....
Judgment:

1. This is an appeal against an order of the District Judge framing the issues to be tried in a petition praying that the appellant Company may be wound-up under the provisions of the Indian Companies Act, 1882. A preliminary objection is taken that no appeal lies, and we think this contention must prevail. It is argued for the appellants that an appeal lies under Section 169 of the Act, but it is admitted that the notice required by the section has not been given within the time limited. We are asked to extend the time for such notice, and we would be disposed to do so if we were of opinion that an appeal on the merits does lie against the order of the District Judge.

2. We are however, of opinion that the framing of issues is not an 'order' within the meaning of Section 169 of the Companies Act. Order XIV, Rule 5, Civil Procedure Code, provides that the Court shall at a certain stage of the suit 'ascertain upon what material propositions of fact or of law the parties are at variance and shall, thereupon, proceed to frame and record, the issues on which the right decision of the case appears to depend.' This is what the District Judge has done. No appeal is allowed by the Code of Civil Procedure against the order of a Court in framing issues (See Section 104 and Order XLIII, Rule 1), nor have we been referred to any case in which an appeal has been allowed against such an order made in proceedings under the Companies Act. We are of opinion that no appeal lies. We must, therefore, dismiss this appeal with costs. Two sets of costs are allowed.


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