Natesan, J.- This appeal is directed against the Order of our learned brother, Sadasivam, J., pronouncing the opinion of the Court on certain preliminary objections to the maintainability of an application under sections 45-A and 45-B of the Banking Companies Act, which the liquidators, the respondents in the appeal, had filed. The proceedings arise on the liquidation of the Hanuman Bank, Limited, Tanjore, which is being wound up on a creditor’s petition dated 26th July, 1947. Liquidation proceedings were initiated under the Indian Companies Act, 1913, and the applicability to the matter of the Banking Companies Act, 1949, which came into force on 16th March, 1949, is not questioned before us. Before setting out the questions for consideration in this appeal, which are of general and considerable importance, and not free from difficulty, it is necessary and we shall refer, to the facts leading up to the present appeal. The Hanuman Bank Limited (in liquidation) was incorporated as a public limited company under the Indian Companies Act, 1913. The subscribed and paid-up capital is stated to be Rs. 5,75,000 and Rs. 4,31,000 respectively. It is needless to refer to the circumstances leading to the creditors’ petition for winding up, which was presented on 26th July, 1947. A provisional liquidator was appointed on 19th August, 1947, and the final order, directing the bank to be wound up, was passed on 5th November, 1947. By an order dated 12th January, 1948, the present respondents, Messrs. Brahmayya and Company, were appointed the Official Liquidators. The father of the present appellants, one Dewan Bahadur Swaminatha Iyer, a retired Chief Engineer of the Madras Government, was a director of the Bank, and, according to the Liquidators, intimately connected with the management of the bank, till its crash. While, under Article 52 of the Articles of Association of the bank, the general supervision and control of the business of the Bank were vested in the Directors, under Article 54, the actual management of the business was vested in the Managing Committee as provided under Article 59. Article 60 provided that the Managing Committee shall have all the powers of the directors, and all acts of management done by them in conformity with the rules and regulations of the bank shall have the like force and effect, as if done by the directors themselves. Article 60 provided that the Managing Committee shall have all the powers of the directors, and all acts of management done by them in conformity with the rules and regulations of the bank shall have the like force and effect, as if done by the directors themselves. Article 64 provided that, subject to the control of the Managing Committee, the business of the bank should be conducted and carried on by the Managing Director, in accordance with the rules and regulations of the bank. It is stated on behalf of the Official Liquidators that on 17th August, 1937, the aforesaid Swaminatha Iyer became a member of the Managing Committee, and on 22nd March, 1938, he was elected as the President of the Board of Directors. According to the Liquidators, the Managing Committee, under the dominating influence of Swaminatha Iyer, allowed the affairs of the bank to be carried on by the Managing Director in a reckless manner, according to his whims and fancies, in total disregard of his powers and duties. It is also stated that Swaminatha Iyer was fully conversant with the affairs of the bank, and the conduct of the business of the bank by the Managing Director in disregard of the rules and regulations, be it in the matter of making loans and advances, or in making investments. The Liquidators charge Swaminatha Iyer with permitting the funds of the bank to be misapplied by improper loans and advances, and discounting of cheques and bills. There is another count that the funds of the bank were unauthorisedly utilised for the purchase of coffee estates by K. V. Krishnamurthi Iyer, the Managing Director of the Bank, for the Coorg Coffee Plantations Limited, which he promoted, and of which Swaminatha Iyer was the President. It is stated by the Liquidator that K. V. Krishnamurthi Iyer was enriching himself vastly at the expense of the bank, utilising the funds of the bank for purchasing lands in his own name, by adopting improper devices. These misapplications by K. V. Krishnamurthi Iyer are stated to total about Rs. 2,05,000.. A further charge by the Liquidators is that dividends have been declared by the bank out of the capital, and the loss caused to the bank on this account totalled Rs. 90,700. The loss sustained by the bank by reason of improper loans and advances was estimated at about Rs. 11,12,947. 2,05,000.. A further charge by the Liquidators is that dividends have been declared by the bank out of the capital, and the loss caused to the bank on this account totalled Rs. 90,700. The loss sustained by the bank by reason of improper loans and advances was estimated at about Rs. 11,12,947. In all, under three counts, the loss to the bank was totalled at Rs. 14,08,647. The liquidators initiated proceedings under section 235 of the Indian Companies; Act, 1913, by way of misfeasance summons, in Application No. 2826 of 1960, against the directors and officers of the Bank, charging the respondents therein with acts of misfeasance, misapplication of funds, breach of trust, etc. The enquiry in the application was protracted, and when arguments on the application were coming to an end, and no orders had been passed, Swaminatha Iyer above referred to died on 16th August, 1959. On his death, following the decision of this Court in Peerdan Juharmal Bank, In re1, it was held that the application under section 235 of the Companies Act could not be continued against the legal representatives of Swaminatha Iyer in those very proceedings. In Peerdan Juharmal Bank, In re1, the question directly arose for consideration, whether proceedings initiated under section 235 of the Indian Companies Act against a director of a bank ordered to be wound up could be continued after his death, and whether the liability, if any, of such director could be enforced against his legal representative in those proceedings. After examining the decisions in India and the decision in England, on the corresponding 165th provision of the English statute, this Court held that the right to continue the proceedings under section 235 ended with the death of the director. It was observed that the language of section 235 decided the issue, and that it was a limited right. As observed by Beaumont, C. J., in Manilal Brijlal v. Vandrawandas2 . It was observed that the language of section 235 decided the issue, and that it was a limited right. As observed by Beaumont, C. J., in Manilal Brijlal v. Vandrawandas2 . “Section 235 is concerned only with an enquiry into the conduct of the officers of the company in relation to the company’s property, and in my opinion, it was never intended to involve the Court on an application under that section in an enquiry relating to the estate of a deceased person.” The Application No. 2826 of 1950 was proceeded with against the other respondents to the application, and this Court held that the members of the Managing Committee were liable to pay compensation to the bank for the losses sustained by it, by the misappropriation and improper loans and advances, and discounting of cheques and bills, and illegal declaration of dividends out of the capital. The members of the Managing Committee, who were alive and parties to the application, were made liable for varying sums. It is in these circumstances that the Liquidators, acting under the provisions of sections 45-A and 45-B of the Banking Companies Act X of 1949, filed Company Application No. 217 of 1963 against the present appellants, who are the sons and legal representatives of the aforesaid Swaminatha Iyer, claiming relief against his estate for the losses caused by the acts of misfeasance and breach of trust of the deceased Swaminatha Iyer. Incidentally, in the same-application, they also prayed for a declaration that the release deed dated 27th July, 1945, executed by the said Swaminatha Iyer in favour of his sons, was void against the bank in liquidation and other creditors of Swaminatha Iyer. It is averred, with reference to this release deed, that it was a sham and nominal transaction, not acted upon, and brought about to defeat and delay the creditors. Various defences have been taken to this application, on the merits and in law, and some of the objections in law are preliminary and go to the root of the matter. Apart from challenging the factual basis on which the claim is made, and questioning the liability of Swaminatha. Iyer himself in law, the appellants, who are the legal representatives of Swaminatha Iyer, contend, inter alia, that in a case of the present kind, the cause of action does not survive the death of the director against his estate. Apart from challenging the factual basis on which the claim is made, and questioning the liability of Swaminatha. Iyer himself in law, the appellants, who are the legal representatives of Swaminatha Iyer, contend, inter alia, that in a case of the present kind, the cause of action does not survive the death of the director against his estate. It is further contended that the claim preferred in 1963, assuming that it is otherwise, tenable, is hopelessly barred by limitation. There is also a plea that the dismissal of Application No. 2826 of 1950 would bar the present proceedings. The propriety of challenging the release deed executed by Swaminatha Iyer; which would properly come under section 53 of the Transfer of Property Act, by an application under section 45-B of the Banking Companies Act, was also questioned. So far as the validity of the deed of release executed by Swaminatha Iyer is concerned, it is agreed before us by the Counsel for the Official Liquidators and the Counsel for the appellants, that this question may be left over for consideration, if and when the bank in liquidation makes out its claim against the estate of Swaminatha Iyer, and it becomes necessary to proceed against the estate. In fact, though the learned Company Judge has discussed the matter at length, the learned Judge ultimately observed only that the question whether the release deed executed by Swaminatha Iyer is void could be considered in the enquiry under section 45-B of the Banking Companies Act, in case the applicants obtained a decree for compensation. The entire question, whether it is open to the Liquidators to agitate the validity of the deed in proceedings under section 45-B, and whether on the merits it is void, will all be left over for consideration at the appropriate time, in the event of the liquidators getting the liability of the estate fixed up, to any extent. Prayer No. 1 of Application No. 217 of 1963, is, therefore, not dealt with and is relegated for consideration later at the appropriate time. The two main contentions, on which the application was sought to be defeated in limine, namely (i) the extinction of the cause of action with the death of Swaminatha Iyer, and (ii) the bar of limitation, the learned Judge found against the appellants. The two main contentions, on which the application was sought to be defeated in limine, namely (i) the extinction of the cause of action with the death of Swaminatha Iyer, and (ii) the bar of limitation, the learned Judge found against the appellants. The learned Judge has held that, on the facts as made out at the preliminary stage, the Liquidators had a prima facie case to proceed against the estate of Dewan Bahadur Swaminatha Iyer in the hands of the respondents, to recover the amounts, in respect of which Swaminatha Iyer had committed breach of trust by being a party to the misapplication of the funds. The learned Judge referred to the averments in the application and certain documents, which have been placed on record, that showed that Swaminatha Iyer as a member of the Managing Committee had large powers of management and control vested in him over the moneys of the bank. Of course, the learned Judge was perfectly conscious of the absence of any case by the Liquidators that Swaminatha Iyer had enriched himself by the acts of misfeasance and breach of trust, on which the claim was based. On the question of limitation, while observing that the question was not free from difficulty, the learned Judge held that it could not be said that the entire claim of the applicants was barred by limitation. The learned Judge was of the view that at least that portion of the claim, which arose within the seven years prior to 30th December, 1953, would be in time, and saved by section 45-O of the Banking Companies Act. The learned Judge negatived the contention of the appellants that the claim against them as legal representatives of Swaminatha Iyer was barred by limitation, holding that the cause of action against the legal representatives arose only after the death. It was held that clause (i) of section 45-O of the Banking Companies Act would save it and that the claim was within time. Now, in this appeal before us, though the memorandum of grounds raised a number of contentions, the arguments were confined to two principal contentions, namely, (i) the extinction of the cause of action with the death of Swaminatha Iyer, and(ii) the bar of limitation, the entire claim being out of time. When the appeal was opened, Mr. Now, in this appeal before us, though the memorandum of grounds raised a number of contentions, the arguments were confined to two principal contentions, namely, (i) the extinction of the cause of action with the death of Swaminatha Iyer, and(ii) the bar of limitation, the entire claim being out of time. When the appeal was opened, Mr. S. Swaminathan, learned Counsel appearing for the respondent-Official Liquidators, raised a preliminary objection to the maintainability of the appeal. In the memorandum of grounds of appeal, as preferred, the provision of law under which the appeal was preferred , was indicated as clause 15 of the Letters Patent. However, when the appeal was taken up after due notice to the respondents, an application in C. M. P. No. 8004 of 1965 was taken out by the appellants for amending the memorandum of grounds, so as to indicate reliance on section 202 of the Indian Companies Act, 1913, and section 45-N of the Banking Companies Act, 1949, for the maintainability of the appeal. Learned Counsel appearing for the Liquidators contended that the order in question could not be considered to be a judgment under clause 15 of the Letters Patent entitling an appeal therefrom. It was contended that it could not even be considered an “ order or decision” as contemplated under section 202 of the Companies Act, or section 45-N of the Banking Companies Act. It was submitted that the provisions of Part III-A have been specially enacted for the speedy disposal of winding up proceedings, and that a strict and narrow construction must be given to the provision for appeals thereunder. It was contended that the remedy by way of appeal under section 45-N of the Banking Companie Act was more restricted than the remedy available under section 202 of the Companies Act and that, for an appeal to be competent under section 45-N, it must amount to a decree. The learned Counsel further argued that, even assuming that realiance could be placed on section 202 of the Companies Act, even the ‘order or decision’ should amount to a judgment under clause 15 of the Letters Patent, as the second part of section 202 of the Companies Act put a limitation on the first part of that section providing for appeals. Mr. Mr. V. K. Thiruvengadachari, learned Counsel appearing for the appellants, argued that the matter appealed against would amount to a judgment under clause 15 of the Letters Patent, and that the appeal could be maintained, even under the Letters Patent. It was further pointed out that the words ‘order or decision’ in section 202 of the Companies Act, could not be equated to a judgment’ under clause 15 of the Letters Patent, and that the latter part of section 202 related to only the procedure or the manner of preferring appeals, and not the character of the order sought to be appealed against. So far as section 45-N of the Banking Companies Act is concerned, learned Counsel submitted that a wide and exclusive jurisdiction has been given to the High Court under the Banking Companies Act, and that there is no reason for limiting the scope of the provision for appeal under section 45-N. Learned Counsel pointed out that an appeal is provided for from ‘any order or decision’ and that’ decision ‘meant only a pronouncement or determination on a controversy. In our view, there is nothing to limit the scope for appeal under section 45-N of the Banking Companies Act to a decree or final order, as contended by the learned Counsel for the Liquidators. The fact that Part III-A is headed as ‘Special provision for speedy disposal of winding up proceedings’ cannot control the plain language of the section and take away a valuable right of appeal, which the words convey. The object, it is seen, is achieved in many ways, without encroaching on the provisions as to appeal. The headings in an Act of Parliament may be resorted to only to resolve any ambiguity in the words, but the effect of the plain words of a section, if there is nothing incongruous in their application according to their ordinary meaning with the rest of the provisions of the Act, cannot be curtailed by reference only to the heading. To a certain extent, the right of appeal is curtailed by the requirement as to value in the section itself. To a certain extent, the right of appeal is curtailed by the requirement as to value in the section itself. Then the jurisdiction under section 45-B is exclusive and all embracive, and the exclusive jurisdiction to entertain and decide any claim made by or against a banking company that is being wound up is given to the High Court Section 45-F makes documents of the company evidence and prima facie evidence against the directors and there are other provisions which facilitate the speeding up of the liquidation proceedings. Now, the High Court is given jurisdiction to decide any question of priorities, or any other question whatsoever, whether of law or of fact, which may relate to or arise in the course of the winding up of a banking company, whether such claim or question has arisen or arises, or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953. There are other provisions in Part III-A, like the settlement of the list of debtors, special provision to make calls on contributories, provision for public examination of directors and auditors, special provision for orders on such examination restraining persons from being directors, auditors or partners without the leave of the High Court in certain circumstances, etc., which can have serious consequences, and could therefore be properly made the subject of appeal. It is in this background the language of section 45-N has to be interpreted. Section 45-N runs thus: “An appeal shall lie from any order or decision of the High Court in a civil proceeding underthis Act when the amount or value of the subject-matter of the claim exceeds five thousand rupees.” The limitation on the right that is apparent is that the order or decision must be in a civil proceeding under the Banking Companies Act, and that the amount or value of the subject-matter of the claim should exceed five thousand rupees. In this case, there is no question that the subject-matter of the claim exceeds five thousand rupees. Obviously the matter arises in a civil proceeding. In this case, there is no question that the subject-matter of the claim exceeds five thousand rupees. Obviously the matter arises in a civil proceeding. The dictionary meaning of the word ‘decision ‘that may be appropriately adopted is a ‘Judgment or conclusion reached or given’ (Webster’s), and it is treated as being synonymous with conclusion, disposal, resolution, determination and opinion. There can be no doubt in this case that there has been a ‘decision ‘on a matter in controversy between the parties. The Parliament, which must know the distinction between order and decision, specifically made decisions also appealable; and the preceding word ‘any’has also to be given its due force in the context. The right of appeal conferred is a substantial and valuable right and the Court should be slow to limit and cut down, the prima facie operation of the words if it could be avoided. The only limitation that could be placed on the words in the context is that the order or decision should not be merely procedural in character, and that is the limitation that has been placed on these words as they occurred in section 202 of the Indian Companies Act, 1913 (section 453 of Act I of 1956). Section 202 of Act VII of 1913 ran thus: “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.” One argument on this provision for appeal had been that any order or decision to be appealable must, in view of the latter provisions in the section, satisfy the requirements of clause 15 of the Letters Patent. But this limitation to be placed on section 202 of the Companies Act, by equating the 'order or decision' to the ‘judgment’ as understood under the Letters Patent, has not been accepted by the Supreme Court. But this limitation to be placed on section 202 of the Companies Act, by equating the 'order or decision' to the ‘judgment’ as understood under the Letters Patent, has not been accepted by the Supreme Court. In Shankarlal v. Shankarlal1, agreeing with the view expressed by the Bombay High Court in Bacharaj Factories Ltd. v. Hirji Mills Ltd.,2and Western India Theatres Ltd. v. Ishwarbhai Somabhai Patel3, Rajagopala Ayyangar, J., speaking for the Court, observes:- “We thus agree with Chagla, C. J., that the second part of the section (section 202 of the Companies Act) refers to ‘the manner’ and the conditions subject to which appeals may be had’ merely regulates the procedure to be followed in the presentation of............the appeal and of hearing them, the period of limitation within which the appeal is to be presented and the forum to which appeal would lie, and does not restrict or impair the substantive right of appeal which has been conferred by the opening words of that section. We also agree with the learned Judges of the Bombay High Court that the words ‘order or decision’ occurring in the first part of section 202, though wide, would exclude merely procedural orders or those which do not affect the rights or liabilities of parties.” In Western India Theatres Ltd. v. Ishwarbhai Somabhai Patel3while, on the face of the petition for winding up the company, no case for winding-up was made out, instead of dismissing the petition, the Company Judge passed an order directing the petition to be advertised. Chagla, C.J., sitting with Desai, J., observed that, looking to the wide language used in section 202, the order was appealable. The learned Chief Justice remarked, in the course of the judgment, that the company was aggrieved because the learned Judge did not dismiss the petition, but proceeded to give directions under rule 751 of the High Court of Bombay Original Side Rules, directing the petition to be advertised. The learned Chief Justice remarked, in the course of the judgment, that the company was aggrieved because the learned Judge did not dismiss the petition, but proceeded to give directions under rule 751 of the High Court of Bombay Original Side Rules, directing the petition to be advertised. In Bacharaj Factories Ltd. v. Hirji Mills Ltd.,2Chagla, C.J., sitting with Dixit, J., while upholding the appealability of an order passed by a single Judge on the Original Side of the Bombay High Court, refusing to wind up a company, but adjourning the petition for hearing it on the merits to a future date, observed: “But section 202 is general in its nature and it provides for appeals against any order or decision made or given in the matter of the winding-up of a company. Therefore, the first fact which strikes-one is that the Legislature attached particular importance to the winding-up of a company and made-orders, made in the course of the winding up, subject to appeal. Another important fact that must be borne in mind in construing section 202 is that it is not only any order in the matter of the winding-up which is made appealable, but every decision in the matter of the winding-up, and the importance of its being made appealable can be realised from the fact that under section 199 the Act provides that all orders made by a Court may be enforced in the same manner in which decrees of such Court made in any suit pending therein may be enforced. Therefore, the Legislature knew the distinction between an order and a decision, and whereas section 199 talks of how an order should be enforced, section 202 does not limit the right of appeal merely against an order, but also confers that right of appeal against a decision. In our opinion the right conferred is not only a substantial right but a very valuable right and the Court must be anxious not in any way to cut down or impair that right. It is true that under section 202 a right of appeal is not provided against any procedural order or decision which in no way affects the rights or liabilities of parties. It is true that under section 202 a right of appeal is not provided against any procedural order or decision which in no way affects the rights or liabilities of parties. The order or decision given by the Court in its winding-up must be such as would in anyway deprive or affect the right of a party, would make the party aggrieved by that order, and which would make him desire to come to a higher Court for getting the order passed by the trial Court rectified.” In both the above Bombay cases, the attempt to cut down the right of appeal, by construing the second part of section 202, which dealt with merely procedural implications of the appeal, and requiring that the order should be a judgment within the meaning of clause 15 of the Letters Patent failed. As noticed above, the decision of Chagla, C.J., in the above case has been accepted by the Supreme Court. Whether section 202 of the Companies Act is available to the appellants or not, we see no reason to limit the wide language of ‘any order or decision’ as above interpreted and made appealable under section 45-6 of the Banking Companies Act. The order in question sought to be appealed against certainly determines the rights of parties; it is not merely procedural. If either of the contentions of the appellants herein, now pressed before us, is accepted, the application itself would have to be rejected. So far as the Company Judge in this case is concerned, he has given his final determination on the question of limitation and the survival of the cause of action. Learned Counsel for the Liquidators referred to the decision of the Calcutta High Court in Nath Bank Ltd. v. Kshetra Nath Dalai1. To the extent the case decided that the order of a single Judge was appealable under section 202 of the Companies Act, only if the order was appealable under clause 15 of the Letters Patent of the Calcutta High Court, it must be held to be no longer good law, after the decision of the Supreme Court in Shankarlal v. Shankarlal2. In Nath Bank Limited v. Kshetra Nath Dalai1, the applicability of section 45-N of the Banking Companies Act was not in question, as the proceedings which were in appeal there, were proceedings under section 235 of the Indian Companies Act, and not proceedings under the Banking Companies Act; and all that was laid down in that decision was that the right of appeal conferred by section 45-N was limited to orders in original civil proceedings contemplated by the Banking Companies Act, and did not extend to orders passed in civil proceedings under the Indian Companies Act. Mr. V.K. Thiruvenkatachari, learned Counsel for the appellants, contended that the order appealed against in the present case would also be a judgment under clause 15 of the Letters Patent. The definition of a judgment under the Letters Patent, as enunciated in Thuljaram v. Alagappa3, was relied upon, and it was submitted that the definition of judgment in Thuljaram’s case3, has been adhered to by this Court ever since. There has been a conflict between the various High Courts as to the meaning of ‘judgment’ under clause 15 of the Letters Patent, and this conflict is noticed by the Supreme Court in Asrumati Debt v. Kumar Rupendra Deb Raikot and others4, Shankarlal v. Shankarlal2 and State of Uttar Pradesh v. Vijay Anand5. In Asrumati Debi’s case4, the Supreme Court was concerned with an order for the transfer of a suit under clause 13 of the Letters Patent of the Calcutta High Court, and it was held that such an order was not a judgment within the meaning of clause 15 of the Letters Patent, and therefore no appeal was competent therefrom," as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or dispose of the suit on any ground." In Central Brokers v. Ramanarayana Poddar & Company1, Govinda Menon, J., observes that his Lordship Mukherjea, J., was inclined to agree with the definition of the word judgment given by Sir Richard Couch, C.J., in Justices of the Peace for Calcutta v. The Oriental Gas Company2and by Sir Arnold White, C.J., in Tuljaram v. Alagappa3. But Sir Richard Couch defines ‘judgment’ under the Letters Patent thus: "We think that’ judgment’ in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. But Sir Richard Couch defines ‘judgment’ under the Letters Patent thus: "We think that’ judgment’ in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, of interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined." That is, a judgment under clause 15 of the Letters Patent may be either preliminary or interlocutory, the only requirement being that it must affect the merits of the question between the parties by determining some right or liability. Thus viewed, it is indisputable that the order in question now under appeal would be a judgment, and even if the word ‘decision’ in section 45-N of the Banking Companies Act is equated to a judgment, the order would be appealable. But, in Tulrajram’s case3Sir Arnold White, C.J., observed thus:- "The test seems to me to be not what is the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudicetion on an application, which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent." The learned Chief Justice, while discussing the observations of Sir Richard Couch, C.J., in Justices of the Peace for Calcutta v. The Oriental Gas Company2, was not prepared to say that, in order that a decision could be a judgment, it must be one, which affects the merits by determining some right or liability; but, according to the learned Chief Justice, whatever its form it must terminate the suit or proceeding. However, in Tuljaram’s case3, Krishnaswami Aiyar, J., observed:- "But I do not think we shall be justified in confining the term ‘judgment’ to final disposals of suits, appeals, or original petitions, or proceedings in execution. Preliminary or interlocutory judgments, which ascertain rights and direct further enquiries, which determine liabilities, though further directions are given for ascertaining the measure of those liabilities, must be deemed to fall within clause 15." Now, White, C.J., in the same case, referring to Vaghoji v. Camaji4, where it was held that an appeal lay from an order dismissing the Judge’s Summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file, observed: "Here the adjudication asked for, if made, would have disposed of the suit". After referring to this observation of White, C.J., the Supreme Court, in Asrumati Debi v. Kumar Rupendra Deb Raikot and others5observed thus:- "Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge’s summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out (Vaghoji v. Camaji1, that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the Court making the order is concerned. This brings the order within the category of a ‘judgment’ as laid down in the Calcutta cases." Mr. V.K. Thiruvenkatachari, learned Counsel for the appellants, relied on the above observations of the Supreme Court, and contended that, on the principle of the above observations, it must be held that the order now appealed against is also a judgment. The decision one way or the other goes to the root of the matter, and the decision given by the learned Company Judge has become final and decisive so far as the Court making the order is concerned. The decision one way or the other goes to the root of the matter, and the decision given by the learned Company Judge has become final and decisive so far as the Court making the order is concerned. Here again, in the Madras Full Bench case Central Brokers v. Ramanarayana Poddar & Co.2, Govinda Menon, J., would observe that the Supreme Court also held that an order refusing to rescind leave to be granted under clause 12 of the Letters Patent was not a judgment under clause 15 of the Letters Patent. The Full Bench has held that the two tests laid down by the Supreme Court to find out whether an adjudication in a particular proceeding is a judgment or not are: (i) Whether it terminates the suit or proceeding; and (ii) whether it affects the merits of the controversy between the parties in the suit itself. This two-fold requirement of a judgment under the Letters Patent is re-stated again in another Full Bench case of this Court in Southern Roadways v. Veeraswami Nadar3, where it is observed at page 29 that the decision in Asrumati Debi v. Kumar Rupendra Deb Raikot and others4, substantially proceeds on the basis that an order by the Court which relates to a suit, but which has the effect of keeping that suit alive cannot be regarded as a final judgment. Again, in Cork Industries v. Govindarajulu Mudaliar5this Court has held that though an order would be a ‘judgment’ against which an appeal is maintainable under clause 15 of the Letters Patent, the same cannot follow in regard to an order granting leave. In this state of the law, as the present appeal could, in our opinion, be sustained under section 45-N of the Banking Companies Act, it is needless to examine the tenability of the appeal under the Letters Patent or the further question whether an appeal outside section 45-N is open in civil proceedings under the Banking Companies Act. The present appeal fulfils the requirements of section 45-N of the Banking Companies Act, both as to valuation, the subject-matter of the claim being over five thousand rupees, and as to character, the order in question being an order or decision in a civil proceeding, and not merely procedural. The preliminary objection, as to the maintainability of the appeal, is, therefore, overruled. The preliminary objection, as to the maintainability of the appeal, is, therefore, overruled. We shall first take up the contention that the cause of action does not survive against the heirs and representatives of Swaminatha Iyer under the maxim actio personalis moritur cum persona. Mr. V. K. Thiruvenkatachari, learned Counsel for the appellants, contends that this rule of personal action abating with the death of the delinquent is a well established rule, and the rigour of the rule, which has been relieved to a certain extent by the Legal Representatives’ Suits Act, XII of 1855, cannot help the liquidators in the present case. Under that Act suits for wrongs, which do not survive the death of the wrong-doer, against his executors, administrators, heirs or representatives, could be maintained against the said executors, administrators, heirs or representatives, if the wrong, which has given rise to the cause of action, had been committed within one year before the death. Learned Counsel points out that this is not a mere rule of limitation, and that if the cause of action was not within one year prior to the death, no action can be laid on the cause of action-the cause of action did not survive. The period of limitation for suits under this Act is two years from the time the wrong complained of was done- The arguments on this part of the case may be briefly summed up thus. The liability of the director is not ex contractu, but one in tort. The cause of action is, in fact, based on negligence, and not on any contract, express or implied; nor is the action founded on the type of obligations commonly referred to as ‘quasi contract’ and the subject of provision by sections 68 to 72 of the Indian Contract Act in Chapter V under the heading “ Of certain relations resembling those created by contract.” ‘It not being the case of the Liquidators that Swaminatha Iyer had gained for himself any pecuniary advantage, it is argued that forms of action for recovery based on the theory of unjust enrichment have no application. Strong reliance is placed on the scope of the maxim actio personalis moritur cum persona stated by Bowen, L.J., in Phillips v. Homfray1, thus: “The only cases in which, apart from the question of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased, who has done the act, appear to us to be those in which the property or the proceeds or the value of property belonging to another have been appropriated by the deceased person and added to his own estate or moneys.” Elaborating the arguments, learned Counsel covered a wide field, referring to the development of the law relating to liability in torts, the distinction between actions on contract and actions on tort, between implied contract and what is commonly referred to as quasi contract, and actions based on the obligations in the nature of trusts, provided for under Chapter IX of the Indian Trusts Act, referring particularly to section 88 of the Indian Trusts Act. The arguments principally centered round establishing that the liability sought to be fascened on the representatives of the deceased in this case was, in fact, a liability in tort, and, therefore, did not survive against the heirs. Our attention was drawn to section 235 of the Indian Companies Act, 1913, corresponding to section 543 of the present Companies Act, where on examination of the conduct of a delinquent director he could be compelled to repay or restore the money or property or any part thereof with interest, or to contribute such sum to the assets of the company by way of compensation in respect of misapplication, retainer, misfeasance, or breach of trust as the Court thinks just. It was pointed out that, while the section was not exhaustive and fully descriptive of the suits under the general law, which could be pursued against the delinquent director, it gave an indication of the nature of the liability which a director can incur. Learned Counsel drew our attention to the meaning of misfeasance, malfeasance and non-feasance found in the Dictionary of English Law by Jewitt. Learned Counsel drew our attention to the meaning of misfeasance, malfeasance and non-feasance found in the Dictionary of English Law by Jewitt. While malfeasance is shown as the doing of an unlawful act, for example, trespass and misfeasance is defined as improper performance of a lawful act, as where a person is guilty of negligence in performing a contract, non-feasance is referred to as the neglect or failure of a person to do some act which he ought to do. The term is generally used to denote not a breach of contract, but rather a failure to perform a duty towards the public, whereby some individual sustains special damage peculiar to himself, as where a Highway authority permits a road to become worn into a dangerous hole. It is contended that the three counts, on which the application is founded, are none of them the result of any breach of any express or implied contract. It is contended that, in essence, the action is laid on the basis of gross or culpable negligence, and is purely one in tort. No property or benefits have been acquired by the wrongdoer, and therefore no action for the value of the property survived against the wrong-doer. The action is not one for restoration of money or property. Mr. S. Swaminathan on behalf of the Official Liquidators takes the stand that the liability in this case is not one founded on tort, but one founded either on breach of contract or breach of trust. It is submitted that misapplication of the funds of the bank, the improper outlay of the funds and unlawful advances contrary to rules and regulations, could come either as breaches of contract, implied, if not express, or, at any rate, as breach of trust, or under quasi contract, and that in such cases the estate of the wrong-doer would be liable. Learned Counsel argues that the maximactio personal is moritur cum persona is limited to personal wrongs arising out of tort, and does not relate to the liability arising out of breach of trust, express, implied or constructive. It is submitted that the relationship between the director and the bank, apart from being contractual, was also fiduciary, and that any actionable negligence in respect of fiduciary obligations would be outside tort. It is submitted that the relationship between the director and the bank, apart from being contractual, was also fiduciary, and that any actionable negligence in respect of fiduciary obligations would be outside tort. Learned Counsel points out that the liability in this case was sought to be made out not on negligence simpliciter of Swaminatha Iyer. As set out already, in the report filed by the Liquidators in support of the application, averments are found that the Managing Committee of which Swaminatha Iyer was a member, had full control of the business of the bank carried on by the Managing Director, and that Swaminatha Iyer had a preponderating voice in the management of the bank. Certain documents have been exhibited in the case by the Liquidators in support of their contention that Swaminatha Iyer had effective control over the bank, and that the misapplication of the funds of the bank by the Managing Director was with the full knowledge of Swaminatha Iyer. No doubt, these are averments that will have to be made out when the merits of the application are gone into, and the liability is sought to be fastened on the estate of Swaminatha Iyer. But it is clear from the case of the Liquidators that the action is founded on the basis that the deceased director had effective voice not only in the business, but had also control over the funds of the bank, and that he was actively associated with the transactions of the bank, and its investments. Learned Counsel for the Liquidators submits that Swaminatha Iyer was, in the circumstances, apart from any contract, bound by fiduciary character to protect the interest of the bank as recognised under section 88 of the Trusts Act, and under section 95 of the Trusts Act he must, so far as may be, perform the same duties, and subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the properties of the bank for whose benefit he held it. It is submitted that virtually he had full control of the finances of the bank and his obligations and liabilities were those of a trustee. The maxim actio personalis moritur cum persona, according to the learned Counsel does not apply to the applications arising out of breach of duties of persons in the position of a trustee. Mr. It is submitted that virtually he had full control of the finances of the bank and his obligations and liabilities were those of a trustee. The maxim actio personalis moritur cum persona, according to the learned Counsel does not apply to the applications arising out of breach of duties of persons in the position of a trustee. Mr. V. K. Thiruvenkatachari, learned Counsel for the appellants, submitted that the passing of the Legal Representatives’ Suits Act XII of 1855, was itself a recognition of the applicability of the maxim in India. It is argued that as to what causes of action could survive against the representatives, one must look to the law in England in 1855. Reference was made to Nagabhushanam v. Venkatadri Appa Rao1and Marwardi Mothiram v. Samnaji2, pointing out the applicability of the maxim in India. The former was an action for recovery of damages for illegal distraint by a deceased person, and it was held that the action abated. Therein the decision of Bowen, L.J., in Phillips v. Homfray3, was relied upon. The other case was a suit for damages for malicious prosecution. It should be noticed that Act XII of 1855 does not permit the continuance of an action, which has been commenced against the wrong-doer himself in his lifetime. In Rustomji Dorabji v. Nurse4, where it became necessary to refer to a Full Bench the question, whether in a suit for malicious prosecution, if the defendant died more than a year after the prosecution in question, and before judgment, the right to sue survived within the meaning of Order 22, rule 1 of the Civil Procedure Code, so as to prevent abatement of the suit. In the order of reference, Wallis, C.J. adverting to the maxim actio personalis moritur cum persona, observed thus: “That rule, which is of post classical origin and is referred to in Pollock on Torts as barbarous, is far from embodying the principles of justice, equity and good conscience in so far as it deprives an injured party of redress if the alleged wrong-doer happens to die, as in the present case, before a decree has been obtained against him. It has not been applied to contracts, and has been limited by statute as regards torts affecting property.” The Full Bench held that the Legal Representatives’ Suits Act made no provision for the continuation of suits already begun by the wronged against the wrong-doer in the event of the death of either party. It may here be reiterated that the dismissal of the application preferred in these winding-up proceedings against Swaminatha Iyer under section 235 of the Companies Act on his death as abated, was not in pursuance of the nature or character of the liability which was sought to be agitated in the application, but by reason of the very nature of the proceedings under section 235 of the Act, which, as a summary procedure provided only for the examination into the conduct of the promoter, director, manager, liquidator, etc., and compel him to repay or restore the money etc., or contribute such sum to the assets of the company by way of compensation etc. The very nature of the proceedings limited the proceeding to the director or individual involved and sought to be made-liable. It did not exclude the other remedies the company had. Act XII of 1855, which provided for the institution of suits, was entitled an Act to enable executors, administrators or representatives to sue and be sued for certain wrongs. The Preamble ran thus: