1. This appeal arises from an order made in execution proceedings. The judgment-creditor respondents obtained a compromise decree against the appellant Bank on 25th July 1933. On 28th August 1933, an order was obtained from this Court under Section 153, Companies Act, directing the Company to convene a meeting of its depositors for the purpose of considering a scheme of arrangement between the Company and its depositors. At this meeting, held in November 1933, it was agreed that depositors should not be entitled to demand payment for a period of seven years, and that each depositor should, for the purposes of the scheme, be deemed to be a creditor for the amount shown to his credit in the books of the Company as on 30th July 1933 irrespective of whether he had obtained a decree or not. The scheme was sanctioned by this Court on 23rd February 1934. On an application by the Bank objecting to the execution of the decree obtained by the respondents, the Court of first instance held that it could not be axecuted, on the ground that every depositor, whether armed with a decree or not, was bound by the arrangement entered into by the majority and sanctioned by this Court. The Court of appeal below reversed this decision, holding that the decree-holders ceased to be depositors when their decree was obtained. On appeal before us, it was contended on the Strength of two decisions, Barisal Loan Office v. Sasthi Charan Bhattacharjya (1935) 39 C W N 1198. and Serajgunj Loan Office v. Nil Kanta Lahiri 1935 Cal 777, that this decision was wrong, and that the decree in the present case was incapable of execution.
2. Now the earlier of the two decisions cited is authority for the proposition that a scheme of composition passed and sanctioned under Section 153, Companies Act, binds all creditors of the Company, and it was definitely found in that case that on the facts, the composition applied to all the creditors, including the judgment-creditors. In the subsequent case cited, Mitter, J., while adopting the view of the law stated above, pointed out that it was the duty of the Court sanctioning a scheme under the Act to see that one class of creditors or depositors does not feast upon the rights of another class. 'It is for this purpose,' he went on to say, 'that separate meetings must be convened by distinct classes of creditors.' Finally he held that if the Court grants sanction, the agreement of the majority of the creditors with the Company binds all those who fall within the class represented by the said majority. With this view of law, we are in entire agreement. Section 153, Companies Act, itself contemplates an agreement with any class of creditors or an agreement with all creditors but, inasmuch as different classes affected by any scheme must hold separate meetings, and the term 'Class' must be confined to those persons whose rights are not so dissimilar as to make it possible for them to consult together with a view to their common interest, it is clear that an agreement arrived at by one class of creditors will not bind another class which has not been a party to it. In the present case, the scheme applied to the depositors only. It bound all depositors with effect from 5th November 1933, the date of the meeting, but did not bind any other class of creditors.
3. If then the present appellants were depositors on that date, they could not execute their decree. They had been depositors but, on 25th July 1933, had obtained a decree in a suit to recover the amount in deposit. It has been held in In Re: Dewangunj Bank and Industry Ltd. 1935 Cal 117, that a depositor who has obtained a decree against a banking Company before any scheme has been embarked on by the latter, ceases to be a depositor and becomes a decree-holder. We see no reason to dissent from this view. In our judgment there is no conflict in the principle underlying the three decisions of this Court in the cases referred to above, and what follows from that principle is that, in the present case, where the scheme was sanctioned by one class of creditors, the depositors, a decree-holder, an entirely different class of creditors, will not be bound by it. The position is not, in our opinion, altered by the consideration that the depositors in the meeting, purported to treat decree-holders as creditors.' The legal position remains that an agreement entered into by depositors would not necessarily bind creditors, who might conceivably include a much larger body of claimants. In the result, this appeal fails and must be dismissed with costs. We assess the hearing-fee at three gold mohurs.
4. I agree.