JUDGMENT Das, J. - The facts leading up to the present application are as follows: The East India Cotton Mills, Ltd. (hereinafter referred to as the Company) was incorporated under the Indian Companies Act on July 27, 1920. The nominal capital of the company is rupees one crore divided into 50,000 preference shares of Rs. 100 each and 5,00,000 ordinary shares of Rs. 10 each. The paid-up capital, according to the last balance-sheet, is Rs. 1,31,831-8. The registered office of the company was at No. 120, Maharshi Debendra Road, but was later on shifted to No. 7-G, Clive Row, Calcutta. 2. On November 1, 1921, Messrs. M. Alibhoy and Company were appointed as the managing agents of the company and they acted as such until June, 1930, when, on account of the death of some of their partners, they retired from the management. 3. At an extraordinary general meeting held on November 1, 1930, one Manabendra Mohan Kundu Chaudhuri, who was one of the promoters of the company and one J.N. Ray were appointed joint managing directors of the company. In May, 1931, a site for the factory was purchased at Mohiari in the district of Howrah and in August, 1931, a factory was erected on that site. Manabendra states that he advanced a large sum of money for the purchase of the site and erection of the factory and for starting and continuing the work of the factory. He claims to be a creditor of the company in the sum of Rs. 5,24,651. 4. The Petitioners allege that the company had a precarious existence from 1930 to July, 1944, when the affairs of the company came to a deadlock, due to the inefficiency and mismanagement of Manabendra and J.N. Ray. Indeed a winding-up petition is said to have been pending against the company at that time. Be that as it may, Manabendra is said to have approached the firm of Motilal Murarilal and Company, of which the Petitioner Murarilal is a partner, to take up the management of the company and since about July/August, 1944, Manabendra and J.N. Ray ceased to function as managing directors and a new management came into office as hereafter stated. 5. On July 3, 1944, the Petitioner Murarilal and one M.N. Ray were appointed directors of the company. On July 18, 1944, H.D. Garodia and N.N. Movani also became directors. 6. 5. On July 3, 1944, the Petitioner Murarilal and one M.N. Ray were appointed directors of the company. On July 18, 1944, H.D. Garodia and N.N. Movani also became directors. 6. On August 4, 1944, the firm of Motilal Murarilal and Company carrying on business at No. 7-G, Clive Row, were appointed as the managing agents of the company. The Petitioner Murarilal, one Motilal Garodia, since deceased and the said N.N. Movani are said to have been partners of this firm. On August 15, 1944, a managing agency agreement was entered into by and between the company and the said firm of Motilal Murarilal and Company and the Articles were amended accordingly. 7. The Petitioners claim that, after taking up the management of the company, Motilal Murarilal and Company invested about Rs. 3,50,000 of their own and also raised another sum of Rs. 2,50,000 on their guarantee from the Calcutta National Batik, Ltd., for the purposes of the company. The Petitioners state that besides the above sums they also paid Rs. 91,000 to sundry creditors of the company and that, by reason of the financial facilities thus extended to it, the company made marked progress and the works of the mills and the factory went on regularly and showed record production. 8. It appears that, on July 27, 1945, the Petitioner Murarilal was arrested on a charge of bribery. On July 31, 1945, the Petitioner Murarilal was again arrested on a charge of selling fourteen bales of cloth of the company's mills in the black market. The Petitioner Murarilal was convicted on the bribery charge and sentenced to nine months' rigorous imprisonment, which, on appeal, was upheld and confirmed by this Court in its appellate criminal jurisdiction. On August 5, 1946, the Petitioner Murarilal was also convicted on the black marketing charge under the Defence of India Rules and sentenced to a term of one year's rigorous imprisonment and also to a fine of Rs. 1,000 or in default to further six months' rigorous imprisonment. He preferred an appeal, but the conviction and sentence were eventually upheld and confirmed by this Court in its appellate criminal jurisdiction on January 24, 1947. He was at the date of the present application in the Alipore Central Jail serving his sentences. 9. On or about September 17, 1946, Motilal Garodia, another partner of the firm of managing agents, died. 10. He was at the date of the present application in the Alipore Central Jail serving his sentences. 9. On or about September 17, 1946, Motilal Garodia, another partner of the firm of managing agents, died. 10. On September 27, 1946, a Board meeting is said to have been held. That meeting was attended by Manabendra, M.N. Ray and Anil Ghatak. By a resolution said to have been passed at that meeting, Manabendra was authorised to supervise the work of the mills and the office and to operate on the banking account under Article 196. A copy of the minutes of that meeting is annexed to Manabendra's affidavit. 11. On October 8, 1946, Motilal Murarilal and Company, the managing agents, executed a power-of-attorney in favour of Baseswarlal Kalanaria, delegating to him all the powers of the managing agents in terms of Article 189 and Kalanaria claims to have since been in possession of the mills and the office of the company and looking after its interests. 12. On November 26, 1946, another Board meeting was purported to be held and several resolutions were purported to be passed at that meeting, which was attended by Manabendra, M.N. Ray and Anil Ghatak. H.D. Garodia is said to have attended the meeting, but to have refused to record his attendance by signing the minutes and to have left the meeting after a while. One of the resolutions passed at that meeting authorised Manabendra as the director in charge to convene an extraordinary general meeting of the company on January 2, 1947, to consider the several matters which were formulated at that meeting and directed to be placed on the agenda of the extraordinary general meeting to be so convened. One of such matters was the removal of the managing agents Motilal Murarilal and Company and the appointment of new managing agents. 13. On January 2, 1947, the day fixed for the extraordinary general meeting of the company, Kalanaria (the constituted attorney of Motilal Murarilal and Company) and Petitioner Murarilal filed a suit, being Suit No. 17 of 1947, in this Court against Manabendra and others for, inter alia, a declaration that the resolution dated September 27, 1946, was bad, illegal and ultra vires, an injunction restraining Manabendra and others from interfering with the management of the company. On the same day, an application was moved before me for an injunction restraining Manabendra and others from holding the extraordinary general meeting fixed for that day. I declined to issue an injunction stopping the meeting, but granted an injunction restraining the Defendants from giving effect to any resolution that might be passed at that meeting until the hearing of that application and from entering the mill premises and the office of the company in the meantime. Subsequently, the order was varied in certain particulars as stated in Manabendra's affidavit in opposition. Manabendra and others, thereafter, made an application in that suit for an order that Motilal Murarilal and Company do remove their men from the mill premises and that the Petitioner Murarilal be committed for contempt for violation of the interim order. Both the applications came up before Majumdar J. on February 21, 1947, but the learned Judge, observing that the status quo should be maintained, made no order in either of the applications as prayed but dismissed both of them and vacated the interim order. 14. Manabendra thereafter, it is said, approached the police authorities for help to oust the managing agent's men, but after visiting the mill premises, on February 26, 1947', the police authorities are alleged to have declined to interfere. On March 10, 1947, Manabendra applied ex parte and obtained from the Court of the Subdivisional Officer of Howrah an order of attachment u/s 145 of Code of Criminal Procedure and the mill premises were attached by the police on March 14, 1947. This case was, however, subsequently dismissed and the attachment was withdrawn on May 13, 1947. 15. In the meantime, on March 25, 1947, one Shiva Prasad Chakrabarti, a former managing director of the company, presented before this Court a petition for winding-up of the company. On the presentation of the petition, the Court fixed the hearing of that petition on May 12, 1947 and directed a copy of the petition together with a copy of that order to be served on the company at its registered office and also directed advertisements to be published once in the "Calcutta Gazette," once in the "Statesman" and once in the "Ananda Bazar Patrika". As there was some difficulty in publishing the advertisement in the "Statesman", Edgley J. modified the directions by directing advertisement to be issued on or before April 30, 1947, in the "Amrita Bazar Patrika,"' instead of the "Statesman." 16. The advertisements were duly published in the "Calcutta Gazette", "Amrita Bazar Patrika" and "Ananda Bazar Patrika." An affidavit affirmed by one Amulya Dhan Ghosh, a clerk in the employ of Shiva Prasad's attorney, was also filed stating that on April 18, 1947, he had called at No. 7-G, Clive Row and on arriving there, found an employee of the company named Ram, but did not find anybody else and that, therefore, he served the company with the petition and a copy of the order, dated March 25, 1947, by delivening to and leaving the same with Ram at the said registered office. 17. Manabendra says that he saw the advertisements in the newspapers and on May 9, 1947, through his attorney, gave notice to Shiva Prasad's attorneys intimating that as a creditor of the company he would appear at the hearing in support of the application for winding-up. 18. The application for winding-up appeared in the list for hearing on May 12, 13 and 14, 1947, but was not reached. On May 15, 1947, the application was called on for hearing and Learned Counsel for Shiva Prasad prayed for an order for winding-up. The company did not appear to contest the application. Manabendra, as one of the creditors of the company, supported the application. After hearing counsel for the parties appearing on the application, Edgley J. made the winding-up order and appointed Mr. S. Banerjee, a member of the bar, as the Official Liquidator on usual security and remuneration. 19. Mr. Banerjee, on May 17, 1947, sealed the registered office of the company and proceeded to take possession of the mills. One Gazanand Kalanaria, who claims to be the present mill manager under the managing agents, insisted upon production of the Court's order authorising Mr. Banerjee to take possession and declined to give possession unless such order was produced. Manabendra, who was present there, is said to have told Mr. Banerjee that, as director in charge, he was giving him possession and to have pressed Mr. Banerjee to take forcible possession. Gazanand Kalanaria says that Mr. Banejree declined to take forcible possession and went away. 20. Manabendra, who was present there, is said to have told Mr. Banerjee that, as director in charge, he was giving him possession and to have pressed Mr. Banerjee to take forcible possession. Gazanand Kalanaria says that Mr. Banejree declined to take forcible possession and went away. 20. On May 19, 1947, the Petitioner Dulichand approached the petitioning creditor Shiva Prasad and proposed that he (Dulichand) would pay off Shiva Prasad's claim and costs, if Shiva Prasad would undertake not to proceed with the matter. Shiva Prasad found no reason to decline the proposal and accepted Rs. 2,000 in full settlement of his dues and granted a receipt a copy of which is set out in his affidavit. On the same day, Shiva Prasad's attorneys wrote a letter to Mr. Banerjee, the Official Liquidator, stating that the petitioning creditor had been paid his dues by another creditor Dulichand and would not proceed further in the matter of obtaining possession or otherwise. 21. On May 20, 1947, the present summons was taken out for setting aside the winding-up order made on May 15, 1947, or for staying that order altogether and for revoking the appointment of the Official Liquidator. The matter came up for hearing before Edgley J. of July 17 1947, when the learned Judge made an order u/s 173 of the Companies Act, staying the winding-up order pending the decision of Suit No. 17 of 1947, filed by Murarilal and Kalanaria on January 2, 1947, upon certain terms and appointing Mr. Banerjee, who had been previously appointed as liquidator as the receiver of the East India Cotton Mills. 22. The Petitioners being aggrieved by the appointment of Mr. Banerjee as receiver preferred an appeal from that order. The appeal Court, I am told, held that the application was not maintainable, as neither Mr. Banerjee nor the Official Receiver as the Official Liquidator had been made a party and remanded the application to the Judge taking the company list. The Petitioners have, thereafter, on December 5, 19.47, taken out a fresh summons and served the same on the petitioning creditor, the company, Mr. Banerjee and the Official Receiver and the matter has now come up before me as the Judge now taking the company list. The Petitioners have, thereafter, on December 5, 19.47, taken out a fresh summons and served the same on the petitioning creditor, the company, Mr. Banerjee and the Official Receiver and the matter has now come up before me as the Judge now taking the company list. The new summons does not appear to have been served on one Khagendra Lal Shaha, who had appeared before Edgley J. and filed an affidavit strongly objecting to any stay. 23. So far I have summarised the facts without any comment. It is quite clear that many of those facts set out in the petition and the affidavits have been utilised on both sides to give a colour to the respective cases. The Petitioners have sought to make out that, seeing that the company had become a flourishing concern as a result of the labours and financial assistance of the managing agents, Manabendra has been trying to oust them and to get back the control and management of the company. It is their case that, with that end in view, Manabendra has fabricated some resolutions not passed at any meeting or has purported to get diverse illegal resolutions passed at Board meetings held without a quorum and at an extraordinary general meeting without notice to all parties concerned and has also moved the police authorities and the criminal Court to establish himself in power. Manabendra, on the other hand, has sought to depict the Petitioner Murarilal as a despicable person who has been misusing his position as a director and a partner of the firm of managing agents and making unlawful gain at the expense of the company and who has been convicted of bribery and black marketeering. He suggests that, by reason of the conviction of the Petitioner Murarilal and the death of Motilal Garodia, the affairs of the company were not looked after and that, in taking the steps that he did, he was actuated by the best of motives, namely, the welfare of the company and its Shareholders. He suggests that, by reason of the conviction of the Petitioner Murarilal and the death of Motilal Garodia, the affairs of the company were not looked after and that, in taking the steps that he did, he was actuated by the best of motives, namely, the welfare of the company and its Shareholders. Whether Manabendra found, in the misfortune of the Petitioner Murarilal and in the death of Motilal Garodia, an opportunity providing him with a plausible excuse for getting back the control and management of the company by adopting foul or dubious tactics or whether he was actuated solely with the desire of protecting the interests of the company is more than I can say on the materials before me. Indeed, in view of the pendency of Suit No. 17 of 1947, where all these questions will be agitated, I do not think that I should attempt to probe into the motives of Manabendra and make any observation bearing thereon, which may prejudice either party. I, therefore, confine myself to those matters which, I conceive, are vitally and strictly relevant for the purposes of this application. 24. Of the two Petitioners before me, one, namely, Murarilal, claims to be a shareholder and director of the company. This claim is disputed by Manabendra, who says that Murarilal, after being appointed director, did not acquire the qualification-shares and his name does not appear in the register of members. Murarilal alleges that he acquired one hundred shares from Shiva Prasad shortly after his appointment as a director and that later on at a board meeting held on June 1, 1946, at which Manabendra was present, this transfer of one hundred shares to Murarilal was approved and passed by the board, as is evidenced by the minutes signed by Manabendra, which have been produced before me. Notices of board meetings have been always given to him and he also attended the extraordinary general meeting of shareholders held on January 20, 1945. The other Petitioner Dulichand claims to be a creditor of the company in the sum of about Us. 90,000. In the balance-sheet as on December 31, 1944, annexed to Manabendra's affidavit in opposition and on which he relies to establish his claim as a creditor, the business of Murarilal Dulichand, of which Dulichand claims to be the karta, is shown as a creditor for Its. 72,543-2. 90,000. In the balance-sheet as on December 31, 1944, annexed to Manabendra's affidavit in opposition and on which he relies to establish his claim as a creditor, the business of Murarilal Dulichand, of which Dulichand claims to be the karta, is shown as a creditor for Its. 72,543-2. In the circumstances and for the purposes of this application, I am prepared to accept and proceed on the footing that the Petitioner Murarilal is a shareholder and director and the Petitioner Dulichand is a creditor of the company. 25. Mr. Das Gupta, appearing for Manabendra, has taken a preliminary point as to the jurisdiction of this Court to entertain and the locus standi of the Petitioners to maintain this application. The argument raises several important and interesting points, which I now proceed to discuss. 26. On the presentation of a petition for winding-up, directions are given under our rules for advertisements in the official gazette and the two newspapers and if the petition is not presented by the company, directions are given for service of the petition together with the order giving the directions on the company. That is why, on every petition presented by any person other than the company, a note has to be inserted stating that it is intended to serve the petition on the company. The service on the company is to be effected in the manner prescribed by Rule 56 of our Company Rules. Quite obviously, the advertisements are intended to serve the purpose of a general notice to all, who may be interested in the affairs of the company, e.g., its creditors and its contributories and the service on the company, serves as a special notice to the company. After the advertisements are published, any creditor or contributory has the right to appear and file his affidavit on complying with the relevant rules. Thus, under Rule 58, any person who intends to appear on the hearing of the petition, is enjoined to leave with, or send by registered post to the Petitioner or his attorney notice of such intention signed by him or by his attorney, not later than two clear days before the day appointed for the hearing of the petition. No person, who fails to comply with this requirement, is allowed to appear on the hearing of the petition without the leave of the Judge. No person, who fails to comply with this requirement, is allowed to appear on the hearing of the petition without the leave of the Judge. Under Rule 59, an affidavit intended to be used in opposition to or in support of the petition is to be filed not less than five days before the date fixed for hearing and notice of the filing of the affidavit is to be given to the Petitioner or his attorney on the day it is filed. If this requirement is not complied with the affidavit, unless the Judge otherwise directs, cannot be used on the hearing. If the proceedings on a petition for winding-up be compared to proceedings in a suit, the* advertisements fulfil the purpose of service on all creditors and contributories, who may desire to come in and be made a party, the notice of intention to appear on the hearing serves that of entering appearance by the Defendant and the filing of the affidavit that of filing the written statement. It is by giving notice of intention to appear that creditor or contributory becomes a party to the proceedings for winding-up: see the observations of Lindiey L.J. in course of the arguments in In re Securities Insurance Company (1894) 2 Ch. 410 411. By the giving of the notice, the name of the creditor or contributory comes on the record and it is only when the name comes on the record that he becomes a party to the proceedings: see Biswambar Biswas v. Nilambar Muhari (1920) 33 C.W.N. 997, 999. 27. In this case, on the presentation of the winding-up petition, the Court gave directions for advertisements and for service on the company. Neither of the Petitioners gave any notice of intention to appear on the hearing under Rule 58 or file any affidavit under Rule 59 or even ask for leave of the Court at the A time of the actual hearing of the petition to appear at the hearing. The Petitioners, therefore, did not make themselves parties to the proceedings. Edgley J. made the winding-up order. Can, I, as the Judge taking the company list, set aside the order of Edgley J. and re-open the application? Can I do so at the instance of the Petitioners, who were not parties to the proceedings or to the order? Could Edgley J. himself do so? 28. Edgley J. made the winding-up order. Can, I, as the Judge taking the company list, set aside the order of Edgley J. and re-open the application? Can I do so at the instance of the Petitioners, who were not parties to the proceedings or to the order? Could Edgley J. himself do so? 28. Section 202 of our present Companies Act is as follows: Re-hearings of and appeals from, any order or decision made or given in the matter of the winding-up of a company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction. 29. The section prescribes for re-hearings of and appeals from orders made in the matter of the winding-up of a company by the Court in the same "manner" and "conditions" as are to be followed and observed in an appeal from an order of that Court in a case within its ordinary jurisdiction. It appears to me that the expression "manner" indicates the procedure and the expression "conditions" connotes the essential requirements for maintaining the appeal. Confining myself to proceedings on the Original. Side of the High Court, it is quite clear that an order of the High Court in a case within its ordinary jurisdiction is appealable if it is a "judgment" within the meaning of Clause 15 of the Letters Patent unless such appeal is barred by any special law and the appeal from such an order has to be initiated on a memorandum of appeal filed according to prescribed rules and has to be brought before the Division Bench appointed for hearing such appeals. An appeal from an order made by a Judge of the High Court in the matter of the winding-up of a company can, therefore, according to this section, be appealable, if it is a "judgment" and such appeal must be initiated on a memorandum of appeal and brought before the Division Court appointed to hear appeals from the original side. An appeal from an order made by a Judge of the High Court in the matter of the winding-up of a company can, therefore, according to this section, be appealable, if it is a "judgment" and such appeal must be initiated on a memorandum of appeal and brought before the Division Court appointed to hear appeals from the original side. There can be no doubt that an order for winding-up is a "judgment" within Clause 15 of the Letters Patent and therefore, satisfies one of the conditions of appeal ability laid down by the section, but this application cannot possibly be regarded as an appeal, for, omitting for the moment the capacity of the Petitioners to maintain an appeal, which question will be discussed later on, it is quite clear that this application has not been initiated or brought before the appropriate Court in the manner prescribed for an appeal. The question, then, is: Can of this application be supported as a re-hearing of the order of Edgley J? 30. It is suggested, on the authority of the notes u/s 202 in Sen and Sarker's Commentary on the Companies Act, that the plain meaning of the word "re-hearing" is hearing again which implies hearing by the same tribunal which had heard it before and that this re-hearing is in the nature of a review and not an appeal. The language of the section, however, makes it difficult to adopt this line of argument. It will be noticed that the marginal note to the section is only "appeals from orders" and that the section makes no distinction between "re-hearing" and an "appeal" either as to the "manner" or as to the "conditions" in and subject to which it is to be had. A re-hearing like an appeal can be had under this section only in the same manner and subject to the same conditions in which an appeal from an order made in exercise of original jurisdiction is to be had. If the manner and conditions in which an appeal is to be had have to be followed and observed in hearing a re-hearing, such re-hearing has to be initiated in the same way, i.e., upon filing a memorandum of appeal and brought before the same Court, i.e., the appeal Court as an appeal has to be initiated and brought. If the manner and conditions in which an appeal is to be had have to be followed and observed in hearing a re-hearing, such re-hearing has to be initiated in the same way, i.e., upon filing a memorandum of appeal and brought before the same Court, i.e., the appeal Court as an appeal has to be initiated and brought. This analysis of the language of the section appears to me to be logical and leads me to the conclusion that the re-hearing contemplated by the section is akin to an appeal. The question then arises: If re-hearing is akin to an appeal, why was that expression "re-hearing" inserted in the section at all? The answer to this question necessarily involves an investigation into the historical circumstances in which this expression came to be inserted in the section. 31. Going backwards, I find that Section 202 of our present Companies Act of 1913 corresponds with Section 169 of the Indian Companies Act of 1882. That Section 169 reproduced verbatim Section 141 of the Indian Companies Act, 1866, which was in the following terms: Re-hearings of and appeals from, any order or decision made or given in the matter of the winding-up of a company by the Court, may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction; subject to this restriction, that no such re-hearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given under the Code of Civil Procedure, unless such time is extended by the Court of appeal. 32. It is well known that the Indian Companies Act, 1866, was mainly based on the English Companies Act, 1862 (25 and 26 Vic, e. 89). 32. It is well known that the Indian Companies Act, 1866, was mainly based on the English Companies Act, 1862 (25 and 26 Vic, e. 89). Section 141 of our 1866 Act corresponded with Section 124 of the English Act of 1862, which was in the following terms: Re-hearings of and appeals from any order or decision made or given in the matter of the winding-up of a company by any Court having jurisdiction under this Act may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction, subject to this restriction that no such re-hearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given, according to the practice of the Court appealed from, unless such time is extended by the Court of appeal: Provided that.... 33. I omit the proviso which related to the Lord Warden of the Stannaries, with which we are not concerned. It will be noticed that, with the exception that for the words "any Court having "jurisdiction under this Act" occurring in the English section, we had the word "the Court" in our Section 141 and that, for the reference in the English section to the practice of the Court appealed from as regards the manner of service of the notice of appeal, reference was made in our section to the CPC and that the proviso at the end of the English section was omitted from our section, our Section 141 reproduced verbatim, Section 124 of the English Act of 1862. The English Section 124 used both the expressions "re-hearings" and "appeals" and so did our Section 141 and this was repeated in Section 169 of our 1882 Act and later on in Section 202 of our present Act of 1913. Indeed, our Section 202 is a verbatim reproduction of Section 141 of the 1865 Act and Section 169 of the 1882 Act, except that the last portion of the old sections beginning with the words "subject to this restriction" has been omitted from our present section. Indeed, our Section 202 is a verbatim reproduction of Section 141 of the 1865 Act and Section 169 of the 1882 Act, except that the last portion of the old sections beginning with the words "subject to this restriction" has been omitted from our present section. It will be noticed that the marginal note to the old sections, English and Indian, was, as the marginal note to the present sections, English and Indian, is, "appeals from orders". The last portion of the old sections, which gave power to the Court of appeal to extend the time, put it beyond any doubt that the rehearing contemplated by the old sections was a re-hearing before an appeal Court and was, therefore, really an appeal. The omission of that portion, however, from our present section, does not appear to me to make any difference in this respect, for the re-hearing even under the present section is to be had in the same manner and subject to the same conditions as an appeal is to be had. While, therefore, the nature of a re-hearing as an appeal was made explicit by the last portion of the old sections, it was implicit also in the first portion and is implicit in the section as it now stands, for a re-hearing even now is to be had in the same manner and subject to the same conditions as an appeal is to be had from an order made by the Court in a case within its ordinary jurisdiction. In Parvatishankar v. Ishvardas Jagjivandas (1894) ILR 19 Bom. 208 Sargent C.J., on the authority of Ex parte Besley (1851) 3 Mac. and G. 287 : 42 E.R. 271 and on Buckley's Companies Act, held that the term "re-hearing" in Section 169 of our Companies Act of 1882 meant a re-hearing in the nature of an appeal. I respectfully agree with the learned Chief Justice. In my opinion, that expression in our present Section 202 means the same thing. 34. The question, however, still remains: If re-hearing is in the nature of an appeal, why was the expression "re-hearing" used in the English Act of 1862 in addition to the expression appeal". The answer to this question is to be found in the old practice of the Chancery Court in England, which was mainly the Court having jurisdiction under the English Companies Act. In In re St. The answer to this question is to be found in the old practice of the Chancery Court in England, which was mainly the Court having jurisdiction under the English Companies Act. In In re St. Nazaire Company (1879) 12 Ch. D. 88, 98. Jessel M.R. observed as follows: Now, part of the old jurisdiction of the Lord Chancellor was a right to re-hear his own decisions, or decisions of a preceding Lord Chancellor; and similar powers passed under the statute to the Master of the Rolls and the Vice-Chancellor and they also had a right to re-hear their own decisions and the decisions of their respective predecessors. At first, that was an unlimited right, as I said before ; it was afterwards limited by General Order to twenty years and finally to five years and that existed down to the time of the passing of the Judicature Act. Now, what was that right of re-hearing? Was it original jurisdiction, or was it appellate jurisdiction? There can, as it seems to me, but one answer to that question: it was appellate jurisdiction. No doubt it sometimes was an appeal from a Judge to himself, but it was much more frequently an appeal from a Judge to his successor. One of the very first cases heard before Lord Lyndhurst was a re-hearing of a case before Lord Eldon, whose decision he reversed. In fact, the hope of every Appellant was founded on the change of the Judge. Such a petition of re-hearing could not be described otherwise than as an application in the nature of an appeal; indeed, every re-hearing was an appeal, although every appeal was not a re-hearing. 35. The above observations make it clear that besides an ordinary appeal from one Court to a superior Court, there was in the Chancery Court an appeal from one Judge to himself or to his successor, which was called re-hearing. As a re-hearing was also a kind of appeal, both re-hearings and appeals had to be included in the English Companies Act, 1862. 36. The learned Master of the Bolls in the case last cited pointed out at pp. As a re-hearing was also a kind of appeal, both re-hearings and appeals had to be included in the English Companies Act, 1862. 36. The learned Master of the Bolls in the case last cited pointed out at pp. 98-99 that all jurisdiction and powers of the Lord Chancellor and of the Court of appeal in Chancery in exercise of his and its appellate jurisdiction having, by Section 18 of the Judicature Act, 1873, been transferred to the Court of appeal, the jurisdiction of a Judge to re-hear the decision of himself or of his predecessor, which was derived from the appellate jurisdiction of the Lord Chancellor, was completely taken away and there could be no rehearing of an order by the Court who made the order. In In re The Lyric Syndicate (Limited) (1900) 17 T.L.R. 162 an application was made to rescind the winding-up order made on a creditor's petition. The ground of the application was that the order had been obtained by the mistake of the solicitor's clerk, who, in ignorance of the fact that an arrangement had been made to satisfy the Petitioners and to have the petition withdrawn and that the arrangement had been carried out, instructed Counsel to obtain the order. The petitioning creditors acceded to the application. Cozens-Hardy J. said that he had no jurisdiction to rescind the order after it had been passed and entered and suggested that application might be made for staying the winding-up order if debts had been paid. If the Chancery practice of re-hearing had prevailed there could be no difficulty in setting aside that order as on appeal. 37. Then came the English Companies (Consolidation) Act, 1908 (8 Edw. 7, c. 69). Sub-section (1) of Section 181 of that Act provided as follows: Subject to rules of Court, an appeal from any order or decision made or given in the winding-up of a company by the Court under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction. 38. I omit Sub-sections (2), (3) and (4) of that section, which deal with orders or judgments pronounced in Scotland. This section has now been replaced by Section 224 of the present English Companies Act, 1929. 39. 38. I omit Sub-sections (2), (3) and (4) of that section, which deal with orders or judgments pronounced in Scotland. This section has now been replaced by Section 224 of the present English Companies Act, 1929. 39. Section 224(1) is in the terms following: Subject to the provisions of this section and to rules of Court an appeal from any order or decision made or given in the winding-up of a company by the Court in Scotland under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction. 40. It is not necessary for my present purpose to refer to the other sub-sections of this section. The present English section does not provide for appeal from an order made by the High Court in England, but that makes no difference, for such appeal is permitted under the Rules of the Supreme Court read with Rule 224 of the Company Rules. The important thing to note, however, is that the expression "re-hearing" is not to be found in the English Act of 1908 or 1929. As pointed out by Jessel M.R., after the Judicature Act 1873, there could be no re-hearing, in the sense of appeal, by a Judge of the High Court of his own decision or that of his predecessor such as was permitted by the Old Chancery Practice and therefore, the expression "re-hearing" became meaningless and was omitted from the section which deals only with appeals. 41. To summarise: In England besides appeals from one Court to a superior Court, there was, according to Old Chancery Practice, a special kind of appeal which was called a re-hearing. An order made by the Chancery Court could, therefore, be appealed from in two ways, namely, by appealing to the superior Court or by appealing to the same Judge or his successor. When the appeal was taken to a superior Court it was called an appeal and where the appeal was taken before the same Court it was called a rehearing. Both were, however, appeals. Company matters were dealt with by the Chancery Court in England. When the appeal was taken to a superior Court it was called an appeal and where the appeal was taken before the same Court it was called a rehearing. Both were, however, appeals. Company matters were dealt with by the Chancery Court in England. The English Acts relating to Companies down to Section 124 of the English Companies Act, 1862, in granting the right of appeal from order made in the winding-up of a company had to provide for both kinds of appeals I have mentioned and therefore, had to use both the expressions "re-hearings" and "appeals" subject to the same conditions as an appeal from an order made in a case within the original jurisdiction of the Court. After the Judicature Act, 1873, the Chancery practice of re-hearing by way of appeal by the Judge, who made the order or his successor, could no longer prevail and every appeal had to go to the Court of appeal. The English Companies Acts of 1908 and 1929, therefore, omitted the word "rehearing" from the relevant section dealing with appeals from orders. Section 141 of our Companies Act, 1866, adopted the relevant portion of Section 124 of the English Act, 1862 and used the word "re-hearings" along with the word "appeals". In Section 169 and Section 224 of our 1882 and 1913 Acts respectively the expression "re-hearings" was left untouched, although that expression meaning an appeal had become meaningless in England after the Judicature Act and had been omitted in the English Act of 1908 and is not to be found in the present English Act of 1929. The expression "re-hearing" in our Section 202 is, therefore, an anomaly, which evidently has escaped the attention of our legislature. Be that as it may, on a consideration of the history of the matter as well as on a proper construction of the section itself, the expression "re-hearing" as used therein clearly means proceedings in the nature of an appeal. The expression "re-hearing" in our Section 202 is, therefore, an anomaly, which evidently has escaped the attention of our legislature. Be that as it may, on a consideration of the history of the matter as well as on a proper construction of the section itself, the expression "re-hearing" as used therein clearly means proceedings in the nature of an appeal. If this application, in so far as it prays for the setting aside of Edgley J.'s order, is to be regarded as a "re-hearing" within the meaning of the section, I, as the successor Judge taking the Company List which was taken by Edgley J., have no jurisdiction to entertain it, for, according to the section, such re-hearing is to be had in the same manner and subject to the same condition in which an appeal is to be had from an order made by Edgley J. in a case within his ordinary jurisdiction and such a re-hearing will have to be initiated on a memorandum of appeal and taken to the Division Bench appointed to hear appeals from the Original Side. 42. Even if this application could be treated as a re-hearing in the nature of an appeal within Section 202 and if I, as the successor Company Court, could entertain it, there still remains the question whether the Petitioners or either of them are or is entitled to maintain it. The right of appeal is the creature of statute. Nobody has any inherent or natural right of appeal. Even a party to the proceedings in which the impugned order is made has no right to appeal therefrom unless such right is specifically given by statute. Section 202 gives a right of re-hearing an appeal but does not say explicitly to whom such right is given This has to be ascertained on a true construction of the section. This right of re-hearing and appeal is, by the section, to be exercised in the same manner and subject to the same conditions as a right of appeal from an order made in exercise of original jurisdiction is to be exercised. Under the CPC and our rules made under that Code or the Letters Patent only a party to the proceedings who is adversely affected by an order made therein or his representative in interest may appeal from that order if that order is an appealable order. Under the CPC and our rules made under that Code or the Letters Patent only a party to the proceedings who is adversely affected by an order made therein or his representative in interest may appeal from that order if that order is an appealable order. As has been held in The Indian Bank, Ltd. v. Seth Bansiram Jeshamal Firm (1933) ILR 57 Mad. 670, neither under the general principles nor under the Code can a person, who was not a party to a suit, prefer an appeal from the decree made in that suit merely on the ground that the Official Receiver, who was a party to the suit, represented him in the suit. As said in the case of Bishambhar Biswas v. Nilambar Muhari (supra), only a person, whose name appears on the record as a party, can appeal and a person cannot appeal on the ground that his benamdar was a party to the suit. There is no provision for a stranger to the proceedings to appeal from an order made therein. Neither of the Petitioners gave notice of intention to appear at the hearing of the petition, or file an affidavit or appear at the hearing and his name does not appear on the record and neither of them is a party to the petition or the order made thereon. In such circumstances, is there any other special principle or any authority, on the strength of which, the Petitioners or either of them can claim an appeal from or re-hearing of an order made in proceedings to which both of them were and are strangers? 43. It will be convenient at this stage to refer to some of the judicial decisions on the question. In In re Silkstone Fall Colliery Company (1875) 1 Ch. D. 38, the persons who appealed were share-holders who had appeared on the hearing of the petition and were, therefore, parties to the petition. In the case of Security Insurance Company (supra) the company proposed a scheme of arrangement with its creditors and policyholders. A meeting of creditors was held pursuant to the directions of the Court to consider the scheme. The Appellants attended the meeting by proxy, but did not vote and did not attend at the hearing to oppose the sanction of the scheme. The scheme was sanctioned by the Court. The Appellants appealed from the order sanctioning the scheme. A meeting of creditors was held pursuant to the directions of the Court to consider the scheme. The Appellants attended the meeting by proxy, but did not vote and did not attend at the hearing to oppose the sanction of the scheme. The scheme was sanctioned by the Court. The Appellants appealed from the order sanctioning the scheme. The objection that the Appellants, not being parties to the proceedings, could not appeal without leave of the Court, was upheld by the Court of appeal. In J. Rustomji v. Official Liquidator of Peoples' Bank (1919) 49 Ind. Cas. 381, the Court sanctioned a scheme. The Appellant did not comply with Rule 58 of the Rules framed by the Chief Court and had not entered his name in the book kept for the purpose and had not, in fact, attended the proceedings resulting in the order sanctioning the scheme. It was held that the Appellant, not having qualified himself to attend the proceedings and not having been a party to the proceedings before the trial Judge had no locus standi to appeal. In the case of Natore Kamala Bank, Ltd. ILR (1937) 1 Cal. 368, 374 the company proposed a scheme and a meeting of creditors was held under the directions of the Court. The Petitioner, a judgment-creditor, did not attend the meeting. At the meeting, the scheme was approved by the requisite majority of creditors. The Petitioner appeared at the hearing and was heard in opposition to it but his objections were overruled and the scheme was sanctioned. After about three years, the Petitioner applied for cancellation of the scheme or modification thereof by excluding the decree-holders from its operation. Lort-Williams J. refused the application on the ground of delay alone. In course of his judgment, however, the learned Judge said: Persons whose interests are affected by a scheme under this section, but who have not opposed it at a meeting, or appeared at the hearing of the petition, cannot appeal without leave; but they can with leave, as can those and without leave, who have opposed it at the meeting, or have appeared in opposition at the hearing of the petition. See Section 202, Indian Companies Act; In re Securities Insurance Company (1894) 2 Ch. 410. 44. See Section 202, Indian Companies Act; In re Securities Insurance Company (1894) 2 Ch. 410. 44. The facts in In Re Mymensingh Loan Office, Ltd. (1936) 41 C.W.N. 599, 601 were similar to those in the Natore Kamala Bank (supra) case except that the Petitioner had left the meeting of creditors after stating that he, a judgment creditor, was not bound by the scheme and did not appear at the hearing when the scheme was sanctioned by the Court. The Petitioner applied for execution of his decree but it was refused on the ground that he was bound by the sanctioned scheme. After another unsuccessful application for execution the Petitioner applied for cancellation of the scheme or modification thereof so as to exclude the decree-holder creditors from its operation. Lort-Williams J. held that the Court had no power to modify or alter the scheme without the consent of those who had agreed to it. In course of his judgment the learned Judge observed: Moreover the Petitioner had an appropriate remedy provided by law which he failed to pursue, because he could have applied to the Court for leave to appeal against the order sanctioning the scheme. Section 202, Indian Companies Act. In re Securities Insurance Company (supra). 45. In Governor-General in Council v. Sailendra Nath Mitra ILR (1942) 2 Cal. 85, 96, 97, the Insurance Company had failed to make the full deposit required by Section 7 of the Insurance Act. The share-holders passed a resolution for voluntary winding-up of the company and appointed a liquidator. By reason of default in making the deposit in full, the registration of the company was cancelled. A committee of inspection was appointed u/s 209(c) of the Companies Act. That committee submitted a scheme of reconstruction. The Court gave directions for convening a meeting of creditors and policyholders. The Superintendent of Insurance applied for winding-up. After certain proceedings which need not be detailed, the liquidator applied for sanction of the scheme. Notice of this application was served on the Superintendent of Insurance. The Superintendent of Insurance opposed the scheme. The Court, however, sanctioned the scheme. Later on, the Court ordered the Reserve Bank to make over to the liquidator the securities held by it as deposit in the name of the company. Notice of this application was served on the Superintendent of Insurance. The Superintendent of Insurance opposed the scheme. The Court, however, sanctioned the scheme. Later on, the Court ordered the Reserve Bank to make over to the liquidator the securities held by it as deposit in the name of the company. The Governor-General in Council, who was not a party before the lower Court and the Superintendent of Insurance, on whom notice was given and who appeared in the lower Court, filed the appeal. Two preliminary points were raised, namely, that the order was not appealable and that the Appellants had no right to maintain the appeal. It was held that the order of the Court under the Insurance Act was appealable under Clause 15 of the Letters Patent as a judgment. As to the locus standi of the Governor-General in Council as Appellant, Nasim Ali J., who delivered the leading judgment of the appeal Court, stated at p. 96: The Governor-General in Council was not a party to the proceedings in the trial Court. An appeal at the instance of a person not on the record is maintainable where his interest in the subject-matter of the dispute will be bound by the judgment or order: Daniel's Chancery Practice, 7th Ed., Volume 1, p. 1042; In re Securities Insurance Company (supra). An order u/s 9 is binding on the Governor-General in Council. The latter has a statutory right to retain the deposit u/s 7 until and unless the events justifying an order u/s 9 take place. He has, therefore, an interest in the deposit which entitles him to appeal against the order u/s 9. 46. As to the locus standi of the Superintendent of Insurance, Nasim Ali J. observed: By Section 106A of the Insurance Act when an application is made to the Court for the making of any order u/s 9, the Court is bound, unless the Superintendent of Insurance has himself made the application or has been made a party thereto, to send a copy of the application together with intimation of the date fixed for the hearing thereof and to give him an opportunity of being heard. Notice u/s 106A was served on him. He was made a party to the proceeding by service. He opposed the application and the decision was against him. I am, therefore, of opinion that he is entitled to appeal. Notice u/s 106A was served on him. He was made a party to the proceeding by service. He opposed the application and the decision was against him. I am, therefore, of opinion that he is entitled to appeal. Crawcour v. Salter (1882) 30 W.R. 329; In re Lamb. Ex parte The Board of Trade (1894) 2 Q.B. 805, 812, 813 and the observations of the majority of the Judges in Ex parte Official Receiver. In re Reed, Bowen and Company (1887) 19 Q.B.D. 174. 47. The observations of Lort-Williams J. in the two cases mentioned above appear to me to be in the nature of obiter dicta and not necessary for the purposes of those cases. His Lordship's opinion was based on the case of Security Insurance Company (supra). That case was decided on Section 124 of the English Act of 1862, which I have quoted above. It will appear that that section allowed re-hearings of and appeals from order made in the winding-up of a company in the manner and subject to the same conditions in and subject to which an appeal could be had from any order made by the same Court in cases within its ordinary jurisdiction subject to the restriction as to the service of notice within a specified time and in the manner in which notices of appeal were ordinarily given according to the practice of that Court. By the reference to the "manner", the section expressly attracted the practice of the Court, which in company matters was the Chancery Court. As pointed out in Securities Insurance Co's case (supra) the Chancery practice was that a stranger who was adversely affected by an order could appeal only with leave of the Court. That practice by Section 124 of the English Act of 1862 received statutory recognition in respect of re-hearings and appeals from an order made in the winding-up and gave a statutory right of re-hearing and appeal from such order to such a stranger subject to his obtaining the leave of the Court. But, in our section, re-hearings of an appeal from an order made in winding-up can be had in the same manner and subject to the same conditions as an appeal may be had from an order made in a case within its ordinary jurisdiction. The word "manner" in our Act attracts our rules of procedure. But, in our section, re-hearings of an appeal from an order made in winding-up can be had in the same manner and subject to the same conditions as an appeal may be had from an order made in a case within its ordinary jurisdiction. The word "manner" in our Act attracts our rules of procedure. As I have pointed out there was and is no general provision in our CPC of 1859, 1882 or 1908 or in the rules made under those Codes or the Letters Patent authorising the Court to give leave to appeal to any person who was a stranger to the proceedings. Therefore, a district Court on whom jurisdiction in company matters may have been conferred u/s 3 of our present companies Act can have, under the Code or rules and apart from any express statutory provision, no power to give leave to appeal to a person not a party to the proceedings before him. Has the High Court exercising jurisdiction under the Companies Act any greater powder than that of the district Court in this behalf? 48. Section 18 of the Charter of 1774 establishing the Supreme Court made it a Court of equity and authorised it to "administer "justice, in a summary manner, as nearly as it may, according to "rules and proceedings of our High Court of Chancery in Great "Britain." Section 38 of that Charter authorised the Supreme Court to frame rules of practice. Unless, therefore, there was anything repugnant in the rules framed u/s 38, the provisions of Section 18 may be said to have imported into this country not only the substantive provisions of equity but also the rules of procedure of the English Chancery Court including the re-hearing in the nature of an appeal and the practice of giving leave to a stranger to appeal. The High Courts Act, 1861, conferred on the High Courts to be established all the jurisdictions of the Supreme Court, but this was subject to the provisions of the Letters Patent to be issued constituting a particular High Court. The Letters Patent of 1862 constituted this High Court. Under Clause 18 of those Letters Patent, the High Court was enjoined, in exercise of its Ordinary Original Civil Jurisdiction, to apply such law or equity as would have been applied by the Supreme Court. The Letters Patent of 1862 constituted this High Court. Under Clause 18 of those Letters Patent, the High Court was enjoined, in exercise of its Ordinary Original Civil Jurisdiction, to apply such law or equity as would have been applied by the Supreme Court. There was no reference to or mention of the rules of practice or procedure in that clause. Clause 37, which was headed "Civil Procedure", ordained that proceedings in matters testamentary and intestate should be regulated by the rules contained in Charter 14 of George III, proceedings in matters matrimonial by the rules of the matrimonial Court in England and proceedings in all other civil suits by the Code of Civil Procedure, Act VIII of 1859. Power was reserved to the Indian Legislature to make rules relating to civil procedure. These Letters Patent were replaced by the Letters Patent of 1865 which are still in force. Under Clause 19, the law or equity to be administered by the High Court in exercise of its Ordinary Original Civil Jurisdiction remains the same as under Clause 18 of the Letters Patent of 1862. Clause 37 of the Letters Patent of 1865 is headed "Civil "Procedure" and empowers the High Court to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the High Court, provided that, in making the rules and orders, the High Court shall be guided by the provisions of the Code of Civil Procedure, 1859 and any modification thereof by competent legislative authority for India. Our Civil Procedure is now regulated by the Code of 1908 and various rules framed by the High Court. I am not aware of any general provision anywhere and none has been brought to my notice, which generally authorises the High Court to give leave to a person who was not a party to the proceedings to appeal from an order made on those proceedings. I am not aware of any general provision anywhere and none has been brought to my notice, which generally authorises the High Court to give leave to a person who was not a party to the proceedings to appeal from an order made on those proceedings. On a perusal of the Statutes, Charter and Letters Patents which I have mentioned, whatever may have been the position of the Supreme Court, I am not of opinion that this High Court can now adopt and apply the rules of practice and procedure of the Chancery Courts in England as distinct from the substantive rules and provisions of equity and allow a re-hearing in the nature of an appeal or give leave to a stranger to appeal from an order made in proceedings to which he was not a party. In this view of the matter, I am bound to say, in spite of the utmost respect, which I always have for the opinions of Lort-Williams J., that the broad proposition implied in his above-quoted observations, namely that a stranger to the proceeding may appeal with the leave of the Court does not appear to me to be well founded or correct so far as this High Court is concerned. I am fortified in my conclusions by the fact that, where it has been the policy or intention of the legislature to give a right of appeal to a stranger or to empower the Court to give leave to appeal to a stranger, it has done so expressly and specifically. Thus Section 75 of the Provincial Insolvency Act gives a right of appeal to-- the debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction as therein specified. Indeed Sub-section (3) of that section allows-- any person aggrieved by any other order made by a District Court other wise than in appeal from an order made by a subordinate Court to appeal to the High Court by leave of the District Court or of the High Court. 49. This section clearly and expressly gives a right of appeal to a stranger and equally, clearly and expressly authorises the District Court and the High Court to give leave to a stranger to appeal. 49. This section clearly and expressly gives a right of appeal to a stranger and equally, clearly and expressly authorises the District Court and the High Court to give leave to a stranger to appeal. Likewise, Section 8, Sub-section (2) of the Presidency-towns Insolvency Act provides that orders in insolvency matters shall, at the instance of any person aggrieved, be subject to appeal as mentioned in Clauses (a) and (b) that follow. I refer to the Insolvency Acts, because the provisions thereof are in pari materia with the provisions of the Companies Act, so far as they relate to winding-up. The Companies Act does not give any such general right of appeal to "any person aggrieved" or give any power to Court to give leave to appeal to a stranger. There is nothing in the Code or the rules giving any such right to a stranger or giving the High Court any general power to give leave to a stranger to appeal. The right of appeal is a creature of statute and in the absence of any express statutory provision, it does not appear to me to be logically correct to hold, as was held by Lort-Williains J., that such a right exists in a stranger in respect of an order made in the winding-up of Company. 50. After, however, registering my respectful dissent from the views of that learned Judge I find myself faced with a more formidable difficulty, namely, the decision of the appeal Court in Governor-General in Council v. Sailendra Nath Mitra (supra). With the observations of Nasim Ali J. in that case regarding the locus standi as Appellant of the Superintendent of Insurance, who was served with notice and appeared at the hearing and thus became a party thereto, I respectfully and entirely agree. I shall not disguise the fact that I find it difficult to express my concurrence with His Lordship's observations regarding the right of appeal of the Governor-General in Council, who was not a party to the proceedings before the lower Court. I shall not attempt to evade that decision by trying to distinguish it on facts, for example, by pointing out that Governor-General in Council may be taken to have been a party to the proceedings through its agent or officer, the Superintendent of Insurance. I shall not attempt to evade that decision by trying to distinguish it on facts, for example, by pointing out that Governor-General in Council may be taken to have been a party to the proceedings through its agent or officer, the Superintendent of Insurance. It will, I conceive, be more respectful of me to point out that the reasons stated above which make me dubious as to the correctness of the observations of Lort-Williams J. and those of the appeal Court do not appear to have been placed before the appeal Court and then to bow to and act on them than to attempt to distinguish them on some ground or another. If this application could, therefore, be regarded as a re-hearing or an appeal within the meaning of Section 202 of the Companies Act, I would have felt bound, in spite of my disinclination, to hold, on the authority of the decision of the appeal Court, to which I have referred, that the Petitioners could maintain it if they had obtained leave of the Court. As I have held that I have no jurisdiction to hear this application regarded as a re-hearing or as an appeal within the meaning of Section 202, the questions of granting leave now does not arise. I might have rested my decision on this question on the ground that I have no jurisdiction to entertain this application as a re-hearing or appeal within that section and not gone on to discuss the further question as to the locus standi of the Petitioners, but I have expressed my views for the consideration of the appeal Court if this case goes before them and if it does not, in the hope that some day the appeal Court or the appropriate legislature may clarify the position, which should not be left in doubt. 51. Mr. Banerjee, appearing for the Petitioners, then seeks to support this application as one in the nature of a review. I have already explained that this application is neither a re-hearing nor an appeal within Section 202 of the Companies Act. A review is not in the nature of an appeal and therefore, cannot be included in the term "re-hearing" which means proceedings in the nature of an appeal. There is no other provision in that Act, which expressly provides for a review. A review is not in the nature of an appeal and therefore, cannot be included in the term "re-hearing" which means proceedings in the nature of an appeal. There is no other provision in that Act, which expressly provides for a review. It is significant that Section 8, Sub-section (1) of the Presidency-towns Insolvency Act clearly and expressly authorises the Court to-- Review, rescind or vary any order made by it under its insolvency jurisdiction. 52. There is no such provision in the Companies Act. Section 90 of the Presidency-towns Insolvency Act provides that, in proceedings under the Act, the Court shall have the like powers and follow the like procedure as it has and follows in the exercise of its Ordinary Original Civil Jurisdiction. There is similar provision in Section 5(1) of the Provincial Insolvency Act. There is no corresponding provision in the Companies Act expressly attracting the rules of procedure laid down in the CPC or the rules. The only way to attract the rules of procedure is to fall back upon Section 141 of the Code of Civil Procedure. Even if, by this process, the provisions of the Code are attracted it has to be seen whether those provisions can support this application as a review. Review is regulated by Order XLVII of that Code. Although Rule 1, Sub-rule (1) of that Order opens with the words "any person considering himself aggrieved", the provisions of that sub-rule, as also those of Sub-rule (2), make it clear that it is a "party" who alone can apply for a review and a stranger to the proceedings cannot come in. In the next place, review can be allowed only on the grounds specified in Sub-rule (1). In the third place, the form of preferring appeals apply mutatis mutandis to applications for review. This requirement is made further explicit, so far as the Original Side is concerned, by Rules 34-37 of Ch. 31 of the Original Side Rules. In the next place, review can be allowed only on the grounds specified in Sub-rule (1). In the third place, the form of preferring appeals apply mutatis mutandis to applications for review. This requirement is made further explicit, so far as the Original Side is concerned, by Rules 34-37 of Ch. 31 of the Original Side Rules. The Petitioners did not comply with Rules 58 and 59 of our Company Rules and Hid not appear at the hearing and therefore, were not parties to the proceedings before Edgley J. I do not think even the Chancery Practice ever authorised the Court to give leave to a stranger to apply for review and I am not prepared to extend the decision of the appeal Court to cover a review by a stranger. In the next place, there is no allegation of discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the order was made. Nor is there any mistake or error apparent on the face of the record, because the advertisements were duly published and there was service on the company, which, on the face of the affidavit of service, complies with Rule 56 of the Company Rules and Order XXIX, Rule 2 of the Code. Finally the form of this application does not satisfy the requirements of Order XLVII, Rule 3 or Ch. 31, Rules 34-36 of our Rules. 53. Learned Counsel for the Petitioners next urges that this application should be treated as an application in the nature of an application for setting aside an ex parte decree. I say, in respectful agreement with Sargent C.J. in the Bombay case, that the expression "re-hearing" does not cover such an application. There is no other provision in the Companies Act for rescinding an order such as there is in Section 8(1) of the Presidency-towns Insolvency Act. Section 141 of the CPC may help to attract the provisions of Order IX, Rule 13. It is said in Palmer's Company Precedents, 15th Ed., Part II, Ch. IX, at p. 133 that an order obtained by default may be set aside in a proper case under R.S.C. Order XXVII, Rule 15. No authority is cited for this proposition. Section 141 of the CPC may help to attract the provisions of Order IX, Rule 13. It is said in Palmer's Company Precedents, 15th Ed., Part II, Ch. IX, at p. 133 that an order obtained by default may be set aside in a proper case under R.S.C. Order XXVII, Rule 15. No authority is cited for this proposition. Presumably the author had in mind the case of Re Aston Hull Coal and Brick Company Limited (1882)45 L.T. 676. In that case, Kay J. expressed considerable doubt as to his jurisdiction to make the order. Further, in that case, the Applicant was the company itself and not a stranger to the proceedings. Palmer at p. 132 cites the case of Lyric Syndicate (Limited)(supra), to which I have referred earlier, apparently with approval. Learned Counsel for the Petitioners relies strongly on the case of Ex parte Barnett (1849) 1 DeG. and Sm. 744. 63 E.R. 1277 as showing that an ex parte winding-up order could be set aside on the application of contributories who had not appeared at the hearing. The observations of Knight Bruce V.C. clearly indicate that there was no satisfactory compliance with the provisions as to service required u/s 10 of the winding-up Act of 1848. That case may, therefore, be supported, if at all, on the peculiar facts of that case showing suppression of service and of material facts amounting to fraud practised on the Court and on the Chancery Practice of re-hearing by a Judge of his own decision or that of his predecessor. If, however, the analogy of Order IX, Rule 13 is applied, it is only the party against whom the order is made ex parte who may apply to have it set aside and he may do so on proof of certain things. As I have explained, neither of the Petitioners was a party to the proceedings before Edgley J. The advertisements were duly published in the Calcutta Gazette and two daily papers. Neither of them took steps to become a party to the proceedings by giving the requisite notice under Rule 58 of the Company Rules or by filing his affidavit under Rule 59 or even by appearing at the hearing with the leave of the Court. Neither of them took steps to become a party to the proceedings by giving the requisite notice under Rule 58 of the Company Rules or by filing his affidavit under Rule 59 or even by appearing at the hearing with the leave of the Court. I have not been referred to any Chancery practice authorising the Court to give leave to a stranger to apply for setting aside an ex parte order. Nor am I prepared to extend the appeal Court decision to cover such a case. It is said that the Petitioners were prevented from apearing at the hearing by reason of the fact that they had no knowledge of the presentation of the petition, for they do not read any newspaper other than Daily Viswamitra and no advertisement was published therein. It is not a case of being unable to read the English or Bengali language, but it is a case of not being in the habit of reading newspaper in English or Bengali. If I were to set aside winding-up orders on the mere ground that a particular creditor or a particular contributory of the company does not read a particular newspaper it will be impossible to get on with the company list or with the winding-up of any company. The parties were at loggerheads since September, 1946. There were proceedings in Howrah Court u/s 144/145 of the Code of Criminal Procedure. One of the Petitioners, Muralilal and his constituted attorney, Kalanaria, filed a suit in this Court on January 2, 1947 and there were several contested applications in that suit including a contempt application. The winding-up petition appeared in the daily cause list on the 12th, 13th, 14th and 15th May, 1947. It is asserted by Manabendra in his affidavit in opposition that the Petitioner's attorney, Mr. P.K. Bose and Kalanaria used to be present in Court every day when the application appeared in the list. Kalanaria denies that he attended Court on any of those days and states that he has been informed by Mr. P.K. Bose that the latter attended Court on the business of other clients. As regards Kalanaria's presence, it is oath against oath. As regards Mr. P.K. Bose, I do not for a moment doubt that Mr. Kalanaria denies that he attended Court on any of those days and states that he has been informed by Mr. P.K. Bose that the latter attended Court on the business of other clients. As regards Kalanaria's presence, it is oath against oath. As regards Mr. P.K. Bose, I do not for a moment doubt that Mr. Bose, who has a fairly large volume of work in company matters, may have had some other business in that Court on those days, but I do think it is somewhat improbable that he would have missed the item "Re East Indian Cotton Mills, Ltd." on his copy of the daily cause list for four days running. There is no affidavit from Mr. P.K. Bose. I am not suggesting that the knowledge about the pendency of the winding-up petition of Mr. P.K. Bose, who is attorney of the Petitioners in the suit, can in law be imputed to the Petitioners in the winding-up matter, but it certainly has a bearing on the probability of actual knowledge of the Petitioners and their constituted attorney of that fact. Murarilal was in jail, but he filed his suit while he was there. According to the Petitioners, on the death of Motilal Garodia, there was no dissolution of the firm of Managing Agents and the heirs of Garodia became partners. There was also N.N. Movani, another partner. There was Kalanaria, the constituted attorney. It is somewhat improbable that persons carrying on business as managing agents of a cotton mill do not read the daily newspapers, in which company notices are usually published and that none of them had any knowledge of the advertisements published in the "Amrita Bazar Patrika" or "Ananda Bazar Patrika" or the "Calcutta Gazette." Further, the alleged non-service of the petition on the company, as to which more will be said hereafter, cannot, in my opinion, be founded upon by the Petitioners. I am not satisfied that any sufficient ground has been made out, which can be said to have prevented the Petitioners or either of them from appearing at the hearing so as to entitle them to ask for setting aside the order for winding-up on the analogy of Order IX, Rule 13. 54. Mr. I am not satisfied that any sufficient ground has been made out, which can be said to have prevented the Petitioners or either of them from appearing at the hearing so as to entitle them to ask for setting aside the order for winding-up on the analogy of Order IX, Rule 13. 54. Mr. Banerjee takes his stand on the plea that the Court has inherent power to set aside an ex parte order and relies on the observations of a Full Bench of this Court in Bibee Tulsiman v. Harihar Mahato (1904) 9 C.W.N. 81 which was followed by Woodroffe J. in Sudevi Devi v. Sovaram Agarwallah (1906) 10 C.W.N. 306. As emphasised by the Earl of Halsbury in Quinn v. Leathem. (1901) A.C. 495, 506, every judgment must be read as applicable to the particular facts of that case and that a case is only an authority for what it actually decides. In the first mentioned case, the mortgagees obtained a preliminary decree u/s 88 of the Transfer of Property Act and pending an appeal preferred by the mortgagors, obtained an order absolute for sale u/s 89, in execution of which a part of the mortgaged properties was sold for Rs. 9,100 and the whole decretal amount of Rs. 8,750 was withdrawn. The High Court, on appeal, modified the preliminary decree by reducing the amount to Rs. 8,234-4. This decree was made absolute on the application of the mortgagees without notice to the mortgagors and the latter applied u/s 108 of the CPC (now. Order IX, Rule 13). The lower Court held that there was no provision for setting aside an order absolute. The Full Bench held that the Court had inherent power to do so and set aside the ex parte order. It will be noticed that the Applicants in that case were the mortgagors, who were Defendants in the suit and not strangers. Likewise the Applicant before Woodroffe J. in the second case was the Defendant and not a stranger. Neither of those two cases can, therefore, be said to be an authority for the proposition that the Court has an inherent power to set aside an ex parte, order at the instance of a stranger. Likewise the Applicant before Woodroffe J. in the second case was the Defendant and not a stranger. Neither of those two cases can, therefore, be said to be an authority for the proposition that the Court has an inherent power to set aside an ex parte, order at the instance of a stranger. Learned Counsel for the Petitioners referred me to the case of Gobardhan Das Chuni Lal Dakuwala v. Kanthimathinatha Pillai (1921) A.I.B. (Mad.) 286, as an instance where an ex parte order was set aside on the petition of a stranger. In that case, the Official Liquidator wrote a letter to the District Judge intimating that he had received an offer for a certain property of the company and recommending its acceptance. After a personal interview with the Official Liquidator, the District Judge passed an order permitting the Official Liquidator to sell the property at the price offered upon some condition as to deposit of money by the intending purchaser. There was no application or any Court proceeding on which this order was made. It was made as a purely administrative order. Then the former manager of the company presented a petition, stating that the price offered was grossly low and brought an offer for a very much higher sum. The District Judge then directed notice to be given to all parties including the former intending purchaser and after hearing all of them passed an order on the application annulling the previous sale and directing sale to the second intending purchaser. The first purchaser appealed. As I have said, the first order for sale was an administrative order. The second order was on a petition on notice to all persons interested and one of such persons appealed. I fail to see how this case helps the Petitioners. I have not been referred to any case where a person who is not a party to a proceeding has been permitted to ask the Court in exercise of its inherent powers to set aside an ex parte order made therein. The doctrine of inherent power like that of public policy is to be applied with extreme caution and cannot be invoked in aid of a proceeding which is not founded on sound legal principles and is not supported by any known rule of practice or procedure. The doctrine of inherent power like that of public policy is to be applied with extreme caution and cannot be invoked in aid of a proceeding which is not founded on sound legal principles and is not supported by any known rule of practice or procedure. I decline to invent novel inherent power, particularly when the Petitioners have, on a proper case being made out, the right to apply for stay of the winding-up proceedings u/s 173 of the Companies Act. 55. Finally, Learned Counsel falls back on the principle that the order, not having been perfected by being drawn up and filed of record, the Court has power to re-hear the matter. There is no doubt about the principle. It has been recognised even since Jessel M.R. affirmed this principle in the course of arguments in the case of St. Nazaire Company (supra). This principle has been applied in numerous cases in England as well as in India. But the application for re-hearing in that English case was made not by a stranger but by a party to the order which was sought to be discharged. In In re Australian Direct Steam Navigation. Miller's case (1876) 3 Ch. D. 661; which was also before Jessel M.R. and referred to by him in the later case the order was not drawn up and the matter was re-heard, but that was at the instance of the parties to the proceedings. The Petitioners did not comply with the company rules and were not parties to the proceedings. By not having complied with the rules, they lost the right of appearing at the hearing except with the leave of the Court. At the hearing, they did not ask for leave to appear and did not appear. The position, therefore, is that persons who were strangers to the proceedings and who could not be heard at the original hearing, for reasons I have stated, now want the Court to hear them and set aside the order already made. At the hearing, they did not ask for leave to appear and did not appear. The position, therefore, is that persons who were strangers to the proceedings and who could not be heard at the original hearing, for reasons I have stated, now want the Court to hear them and set aside the order already made. Again I say that, if I were, in every case, to exercise my power of re-hearing, on the ground of the order not having been yet drawn up, at the instance of persons who might have made themselves parties but did not, it will be difficult to get on with the business of the Court and it will be putting a premium on default in compliance with the rules. Further, what special merit have these Petitioners apart from the fact that they do not read particular newspapers in which the advertisements of the date of hearing of the petition were issued? Here, I am pressed with what has been euphemistically called the background of facts, which, in plain words, may be called matters of prejudice. It is said that, finding that the company had attained considerable success, Manabendra began to attempt to get back control and with that end in view, called bogus meetings of directors and share-holders and purported to pass illegal resolutions and he wrongfully took recourse to police proceedings. As I have said, those matters will be gone into in the suit filed by the Petitioner Murarilal and Kalanaria and I do not consider it right to express any opinion on the charges and counter-charges made by them. It is then said that, being baffled in those attempts, Manabendra procured Shiva Prasad to make the winding-up application, that it was not a bona fide application, but had been engineered by Manabendra and that by suppressing the service of the petition on the company Manabendra has procured the winding-up order. This leads me to look into the circumstances in which the petition came to be filed and the winding-up order to be made. 56. The facts are as follows: In June, 1944, one Achut Anant filed a suit in this Court (No. 786 of 1944) against the company and Shiva Prasad as managing director. There was a decree against the company for costs in favour of Shiva Prasad in December, 1945. Shiva Prasad's costs were taxed and the allocatur for Rs. 56. The facts are as follows: In June, 1944, one Achut Anant filed a suit in this Court (No. 786 of 1944) against the company and Shiva Prasad as managing director. There was a decree against the company for costs in favour of Shiva Prasad in December, 1945. Shiva Prasad's costs were taxed and the allocatur for Rs. 1,015-8-1 was issued in July 1946. That allocatur was, on July 31, 1946, Served on Messrs. Mullick and Palit who were the company's attorneys in that suit. On.August 1, 1946, a letter of demand was sent by Shiva Prasad's attorneys to Mullick and Palit. There is no dispute as to these facts. No notice appears to have been taken by the company to pay up what is now called a paltry sum, although the managing agents are said to be millionaires. So far I see no vestige of collusion between Manabendra and Shiva Prasad. Shiva Prasad alleges that he made several verbal requests for payment to Murarilal, which may be quite natural and probable. On December 19, 1946, Shiva Prasad, through his attorneys, sent a statutory notice by registered post addressed to No. 120, Maharshi Debendra Road. In January, 1947, Shiva Prasad came to learn that the registered office of the company had been shifted to No. 7-G, Clive Row, and therefore, for greater safety, he caused a fresh statutory notice to be sent to that office. The two postal acknowledgment receipts which are in evidence purport to have been signed "for East India Cotton Mills, Ltd." It is the Petitioner's case that the managing agents have all along been in possession of the office and the mills. How could the managing agents miss the letters delivered at the registered office and actually received by some one in the office? The statutory notices were mere continuation of the procedure for enforcing Shiva Prasad's claim. It is true that disputes had already arisen between Manabendra and the managing agents in September, 1946, but how is Shiva Prasad interested in or connected with those disputes and why should Shiva Prasad try to suppress the statutory notices which were to be the foundation of his contemplated proceedings? It is true that disputes had already arisen between Manabendra and the managing agents in September, 1946, but how is Shiva Prasad interested in or connected with those disputes and why should Shiva Prasad try to suppress the statutory notices which were to be the foundation of his contemplated proceedings? Why should he go out of his way to send a second statutory notice and how could the second notice addressed to a place which was the business place of the company as well as of the firm of the managing agents be suppressed by Shiva Prasad? This is all improbable. To proceed, Shiva Prasad presented his petition to Court on March 25, 1947, when the Court fixed the hearing for May 12, 1947 and gave directions for advertisements and for service on the company. As there was some difficulty in getting in the advertisement in the "Statesman," Edgley J. modified the directions by substituting "Amrita Bazar Patrika" for the "Statesman". Advertisements were duly published in the "Calcutta Gazette", "Amrita Bazar Patrika" and "Ananda Bazar Patrika" as stated in the affidavit of compliance affirmed by Amulyadhan Ghosh, a clerk in the employ of Shiva Prasad's attorneys. That affidavit also proves service of the petition on the company on April 10, 1947', at its registered office, where the copy of petition and the order were left with one Ram, said to be an employee of the company. If Ram was a servant of the company,as alleged, it was proper service on the company under 56 of our Company Rules as well as Order XXIX, Rule 2 of the Code. Manabendra, as a creditor, on May 9, 1947, under Rule 58, gave notice to Shiva Prasad's attorneys of his intention to appear and support the application. The matter appeared in the daily cause list on the 12th, 13th, 14th and 15th May, 1947, when the winding-up order was made and a liquidator was appointed. Neither the company nor any creditor or contributory appeared to oppose the application. On May 17, 1947, the liquidator sealed the registered office and proceeded to take possession of the mills. On or about May 19, 1947, the Petitioner Dulichand approached Shiva Prasad and obtained an assignment of the latter's claim and costs and an undertaking not to proceed further in the matter by paying Rs. 2,000. On May 17, 1947, the liquidator sealed the registered office and proceeded to take possession of the mills. On or about May 19, 1947, the Petitioner Dulichand approached Shiva Prasad and obtained an assignment of the latter's claim and costs and an undertaking not to proceed further in the matter by paying Rs. 2,000. On the same day, Shiva Prasad's attorneys wrote to the liquidator that Shiva Prasad's claim had been satisfied and he would not take any further step in the matter of taking possession. Where, I ask, is there any evidence of collusion? Why should Shiva Prasad, if he was a creature of Manabendra, assign his debt to Dulichand and thereby give the Petitioners an excuse for applying to Court? It is said that Manabendra went to the mills, when the liquidator went there to take possession. Why should not he go? As a creditor and as a director, he was interested to see that the company's properties were in safe hands. He would have been less than human if, in the circumstances that had happened, he did not accompany the liquidator to the mills. It seems to me on the materials before me from beginning to end Shiva Prasad followed a normal and natural course of conduct of a bona fide creditor and that the charge of collusion against him has been made recklessly and without any foundation. Indeed, realising that the facts do not in any way support the charge, the Petitioners in para. 9 of the affidavit in reply to Shiva Prasad's affidavit have practically abandoned the charge by saying that Shiva Prasad might not have been actually set up by Manabendra, but he suppressed the service of the petition on the company. If Shiva Prasad had not been set up by Manabendra, but was a bona fide creditor, who presented the winding-up petition, if he got the advertisements duly published, why should he suppress the service of the petition on the company? In my experience, as an advocate as well as a Judge of this Court, whenever an ex parte order is sought to be set aside on the ground of non-service of the summons, the affidavit of service is the first thing which is attacked. In my experience, as an advocate as well as a Judge of this Court, whenever an ex parte order is sought to be set aside on the ground of non-service of the summons, the affidavit of service is the first thing which is attacked. Apart from a bare denial of service and a grievance that the petition was not served on the managing agents, there is not a word in the petition that the company had no servant of the name of Ram, which name was specifically mentioned in the affidavit of service affirmed by Amulya Dhan Ghosh. Shiva Prasad and Amulya Dhan Ghosh have filed two affidavits in opposition to the present application. Amulya reiterates that he went to the registered office and found Ram, who was a servant of the company and left the copies with him. It is only in the affidavit in reply that the Petitioners for the first time say that the company had no servant of that name. Learned Counsel for the Petitioners tell me that the pay book of the company will show and Murarilal is prepared to go into the box and swear that the company had no servant called Ram and pressed me to set down the application for trial on evidence if necessary. The Petitioners have taken no step to get the company's pay book to be produced before me. On the other hand, Learned Counsel for. Manabendra has caused to be produced an affidavit by one Sri Ram Singh, an employee of the company, affirmed on January 21, 1947 and prepared in the office of the Petitioners' attorneys and filed in suit No. 17 of 1947 in this Court. Learned Counsel for the Petitioners says that the company may have many employees with Ram, as part of their names such as Sri Ram, Ganga Ram or Hari Ram, but it never had a servant called Ram simpliciter. Seeing that Shiva Prasad was a bona fide creditor Petitioner, that the charge of collusion against him has been recklessly made in the petition but subsequently withdrawn in the affidavit in reply, that public advertisements have been duly issued and that the company has admittedly a servant of the name of Sri Ram Singh, I am not prepared to hold that Shiva Prasad suppressed the summons and Amulya Dhan Ghosh invented an imaginary Ram and affirmed and filed two false affidavits. It is said that if the company had really received the statutory notices and had been properly served with the petition and if Kalanaria or Mr. P.K. Bose had knowledge of the pendency of the petition, why should not have the managing agents paid up the paltry sum? Why did not they pay in July, 1946, when the allocatur had been served and the demand letter was sent to the company's attorneys Messrs. Mullick and Palit? Manabendra's claim is said to have been settled at and for Rs. 25,000 and the company issued a cheque for that amount on August 17, 1944. That cheque was renewed on February 15, 1945, by a fresh cheque which again was renewed by a third cheque, dated December 1, 1945. In the meantime the company went on paying interest. The last mentioned cheque was dishonoured on presentation. After the winding-up order had been made, the company's attorneys, on May 27, 1947, sent a cheque for Rs. 26,354-2-9 to Manabendra which was refused. Why did not the millionaires pay up Manabendra before? For some reason or other, they may not at that time have considered it necessary or convenient or of advantage to themselves to contest the winding-up application; may be they thought they would buy up the mills cheap at the sale to be held by the liquidator. It is not for me to speculate as to their motive. The fact remains that a bona fide petition followed its normal course and for some reason or other the company or its managing agents did not appear to contest it. I am not prepared to say on the evidence before me that the service of the petition was suppressed or that the company was prevented from appearing at the hearing. Further, the Petitioners cannot make the alleged non-service of summons on the company a ground for now attacking the order, when the public advertisements meant generally for creditors and contributories were duly published. I have not known of a case where, at the instance of a Defendant who has been properly served but did not appear, an ex parte decree has been set aside on the ground that the summons had not been duly served on another Defendant. Order IX, Rule 13, does not permit such a course. I have not known of a case where, at the instance of a Defendant who has been properly served but did not appear, an ex parte decree has been set aside on the ground that the summons had not been duly served on another Defendant. Order IX, Rule 13, does not permit such a course. Again, if the non-service of the petition on the company went to the root of the jurisdiction of the Court to make the order, that was a defence to the application on its merits which should have been urged at the hearing of the petition. I do not think it can be advanced at this stage. 57. Mr. Hazra appearing for the company contends that the company is a party to this application, that it is virtually the company's application and that the company is entitled to have the ex parte order set aside on the ground of non-service of the petition. If, on a winding-up order being made, the company may appeal from it independently of the liquidator as shown by the cases of In re Diamond Fuel Company (1879) 13 Ch. D. 400 and Ripon Press and Sugar Mill Company Limited v. Gopal Chetti (1931) ILR 55 Mad 180 : ILR 58 IndAp 416, why Mr. Hazra argues, should it not be entitled to apply for setting aside the order independently of the liquidator? Mr. R.. Chaudhuri appearing for the liquidator, has drawn my attention to Section 172(3), which provides that a winding-up order is to be deemed to be a notice of discharge, to the servants of the company, to Section 208A(2), under which, on the appointment of a liquidator, the powers of directors cease and to Halsbury's Laws of England, 2nd Ed., Vol. 5, Article 917, at p. 573. Mr. Das Gupta appearing for Manabendra, however, does not seriously dispute the company's right to apply for setting aside the order if a proper case could be made out. In these circumstances, I am prepared, for the purposes of this application, to assume that the company may, independently of the liquidator, maintain such an application. But the fact is that the company has not made any such application. The company has only filed a warrant of attorney and appeared through counsel to support this application. No affidavit has been filed on behalf of the company. But the fact is that the company has not made any such application. The company has only filed a warrant of attorney and appeared through counsel to support this application. No affidavit has been filed on behalf of the company. The warrant of attorney is dated August 14, 1947. That is much more than thirty days after the date of the order or the date of knowledge of the order, for when the liquidator sealed the company's office on May 17, 1947, the company must have had knowledge of the order. The warrant is signed as follows: East India Cotton Mills, Ltd., Motilal Murarilal and Company, Managing Agents. 58. Under Article 181(h), the directors have the power to institute or defend any legal proceedings by or against the company or its officers or otherwise concerning the affairs of the company. This power is, however, subject to the provisions of Articles 185 and 188. Article 185 provides that the business of the company shall be carried on by the managing agents, subject to the direction and control of the directors. Article 188 prescribes the powers and duties of the managing agents. The language of this Article makes it clear that the powers conferred on the managing agents are for the purpose of carrying on the business of the company. The words "and to exercise all the powers, authorities and "discretions of the company and the directors" must be construed as limited to the carrying on of the commercial activities or business of the company and cannot be read as conferring on them power to institute proceedings in Court and certainly not to institute proceedings not connected with or not arising out of any actual and particular commercial transaction of the company. In this view of the matter, the company is not properly before me at all. Finally, on the evidence before me, I am not, as I have said, prepared to hold that there was any suppression of service of the petition on the company. 59. For reasons stated above this application, in so far as it asks for setting aside the order of winding-up, must be refused. 60. In this application, the Petitioners also pray for the stay of the winding-up proceedings u/s 173 of the Companies Act. This section comes into play after an order for winding-up has been made. It pre-supposes a good and valid winding-up order. 60. In this application, the Petitioners also pray for the stay of the winding-up proceedings u/s 173 of the Companies Act. This section comes into play after an order for winding-up has been made. It pre-supposes a good and valid winding-up order. In an application under this section, there can be no question of attacking the order. Any creditor or contributory may make an application under this section. Therefore each of the Petitioners is fully qualified to maintain this application in so far as it is one under this section. The company, however, independently of the liquidator, does not appear to me to have any locus standi in such an application. The section requires proof to the satisfaction of the Court that all proceedings in relation to the winding-up ought to be stayed. What has happened to justify a stay of proceedings? I have already dealt with and rejected the allegations of collusion between Shiva Prasad and Manabendra and the suppression of service of the petition. Has anything happened since the order was made? All that has happened is that the petitioning creditor has been satisfied, not by the company but by Dulichand, a creditor of the company. But is the satisfaction of the petitioning creditor's debt by itself sufficient to stay the winding-up when there are other creditors? It is said that Dulichand, who, in his firm of Murarilal Dulichand, claims about Rs. 90,000 and Jewraj Ram Kissen, who claims also about Rs. 90,000 and is represented by Mr. M.N. Banerjee, are supporting this application. On the other hand, there is the creditor Manabendra. Manabendra claims to be a creditor in the sum of Rs. 5,24,651. It is probable that he agreed to accept Rs. 25,000. I do not propose to go into the question whether the settlement with him was on any condition or whether the condition has been broken. Admittedly, Rs. 25,000 is due to him. The Petitioners through their counsel offered to pay Rs. 25,000 to him in full settlement which Manabendra is not prepared to accept. There is also one Khagendra Lal Shaha who appeared before Edgley J. and filed an affidavit claiming Rs. 6,444-4-6 and objected to any stay, but who has not been served with the present summons. The Petitioners through their counsel offered to pay Rs. 25,000 to him in full settlement which Manabendra is not prepared to accept. There is also one Khagendra Lal Shaha who appeared before Edgley J. and filed an affidavit claiming Rs. 6,444-4-6 and objected to any stay, but who has not been served with the present summons. Lastly, there are the banks and other creditors shown in the balance-sheet as at December 31, 1944, about whose claim nothing has been said in the petition and the affidavits before. Further, even if all the creditors consent to a stay, is the Court bound to grant a stay? The principles on which the Court proceeds on an application of this kind have been summarised in Halsbury's Laws of England, 2nd Ed., Vol. 5, Article 1209, at p. 724, in the following terms: In the exercise of its jurisdiction to stay, the Court, so far as possible, acts upon the principles applicable in exercising jurisdiction to rescind a receiving order or annul an adjudication in bankruptcy against an individual. The Court refuses, therefore, to act upon the mere assent of the creditors in the matter and considers not only whether what is proposed is for the benefit of the creditors, but also whether the stay will be conducive or detrimental to commercial morality and to the interests of the public at large. In particular, the Court will have regard to the following facts: That directors have not complied with their statutory duties as to giving information to the official receiver or furnishing a statement of the affairs ; that there has been an undisclosed agreement between the promoter and the vendor to the the company as to the participation by the former in fully paid up shares forming the consideration for the purchase of property by the company on its formation; that the promoter has made gifts of fully paid up shares to the directors, that these are other matters connected with the promotion, formation, or failure of the company or the conduct of its business or affairs, which appear to the Court to require investigation. The same principles are apparently applicable whether the company has or has not invited the public to subscribe for its shares except, possibly, in the case of a private company, where all the shareholders have full knowledge of what has been done. 61. The same principles are apparently applicable whether the company has or has not invited the public to subscribe for its shares except, possibly, in the case of a private company, where all the shareholders have full knowledge of what has been done. 61. This summary of the law is based on the observations of Buckley J. in the case of In re Telescriptor Syndicate, Limited (1903) 2 Ch. 174, 180, wherein reference was made to the trenchant observations of Fry L.J. in the earlier case of In re Hester (1889) 22 Q.B.D. 632, 641. I, therefore proceed to consider the facts in the light of these principles. 62. What facts have I before me?: (a) There is no allegation that all the creditors are consenting to this application; indeed one of them at least is opposing it. (b) There is nothing to show that a stay will be better than winding-up except the general observation that winding-up is always costly and dilatory. (c) No balance-sheet appears to have been prepared or filed since December 31, 1944. (d) No ordinary general meeting has been held for a long time and at any rate since 1945. (e) There does not appear to have been any election of directors since 1946. (f) One of the partners of the firm of managing agent has been twice convicted of bribery and of black-marketeering in respect of fourteen bales of cloth of this company. (g) Fighting is going on between two factions since September, 1946. (h) Every possible obstruction was placed in the way of ,the liquidator taking possession of the assets of the company. (i) There has been no investigation into the affairs of the company and the conduct of persons in charge of its business. 62. This, in short, is the overall picture before me. How can it be said in these circumstances that further proceedings in winding-up should be stayed? I know nothing about this company and no information as to its present financial position. At one time I thought of directing the liquidator to convene a meeting of creditors and share-holders to ascertain their wishes. An extraordinary general meeting of share-holders appears to have been already held on the 2nd January, 1947, which is said to have unanimously approved of the discharge of the managing agents. At one time I thought of directing the liquidator to convene a meeting of creditors and share-holders to ascertain their wishes. An extraordinary general meeting of share-holders appears to have been already held on the 2nd January, 1947, which is said to have unanimously approved of the discharge of the managing agents. Apart from that, as on the authorities, the opinion of the creditors or share-holders is not by itself decisive but is only an element to be taken into consideration and as the affairs of this company appear to require close investigation in view of the black-marketeering activities of one of the partners of the firm of managing agents, I do not think any useful purpose will be served by calling such a meeting. In my judgment, the Petitioners have not, on this application, placed before me such information or material as will enable me to say that I am at present satisfied that the winding-up proceedings should be stayed. In this view of the matter the Petitioners are not entitled to a stay of the winding-up proceedings. 63. The result, therefore, is that this application must be dismissed. The Petitioners must pay the costs of the liquidator, Manabendra and the petitioning creditor of and incidental to this application.