S. K. Kapur ( 1 ) THIS appeal is directed against the judgment of the District Judge, Delhi, dated 23rd February, 1956. The appellants Kundan Lal and firm Jessa Ram Hira Nand filed a petition for winding up of Hanuman Chamber of Commerce Limited (hereafter REFERRED TO to as the company) on 18-7-1954 under section 162 of the Indian Companies Act, 1913. The appellants claimed to be the creditors of the company and the winding up was sought on four grounds :- (1) The company was unable to pay its debts; (2) It had suspended bussiness for more than a years ; (3) The name of the company had been struck off the register by the Registrar of Companies on 23rd July, 1952, and the company had been dissolved under section 247 of the Indian Companies Act, 1913 ; and (4) It was just and equitable to wind up the company. ( 2 ) THE company having been dissolved the petition was resisted by one Sat Narain Goenka. He took a preliminary objection that since the company had been dissolved in 195 2 no order could be passed for the winding up of the company. The learned District Judge framed to issues which were as under :- (1 ). Is the petition maintainable in view of the dissolution of the Hanuman Chamber of Commerce limited by the Registrar, Joint Stock Companies, Delhi, under Section 247 of the Indian Companies Act on 23-7-1952 ? (2) Is it competent to Sat Narain Goenka to make the above objection ?he decided issue No. (2) in favour of the respondent but following a decision of the High Courts reported in Parduman Singh v. Pioneer Jewellery Company held that before a petition for winding up could be entertained proper steps had to be taken under sub-section (6) of section 247 for setting aside the order of dissolution and that not having been done in this case the winding up petition was not maintainable. Mr. Sawhney, the learned counsel for the appellants, has submitted that the impugned order was passed on 23rd February, 1956, the Companies Act, 1956, received the assent of the President on 18th January, 1956, and came into force from 1st April, 1956. He submits that whatever be the position under the 1913 Act it is clear that such an order can be made under the 195. He submits that whatever be the position under the 1913 Act it is clear that such an order can be made under the 195. 6 Act without first getting the dissolution of the company set aside under sub-section (6) of section 247. He has invited my attention to proviso (b) to sub-section (5) of section 560 which provides that notwithstanding the fact that a company has been struck off the register by the Registrar and dissolved powers of the Court to wind up the company will not be affected. He says that an appeal is a continuation of the original proceedings and taking account of the change in law it should be held that the jurisdiction of the Court to. wind up the company in such circumstances is unaffected. He has further invited my attention to section 645 of the Companies Act, 1956, and says that the order of the Registrar striking off the company passed in July 1952 should be deemed to have been passed under the new Act. Laly, Mr. Sawhney. submits that even under the 1913 Act the position was the same and proviso (b) to sub-section (5) of section 560 merely clarifies the position that obtained under the 1913 Act. ( 3 ) IN reply to the first submission of Mr. Sawhney, Mr. Misra, the learned counsel for the respondents, says that reference to sections 647 and 658 shows that the winding up petition had to be disposed of on the assumption that the new Act had not been passed. According to Mr. Misra, the same result would follow by application of section 6 of the General Clauses Act. ( 4 ) I am in agreement with the submisson of Mr. Sawhney to the effect that in view of proviso (b) to sub-section (5) of section 560 a winding up order can be passed against a company without first getting the dissolution order set aside. There can be no doubt nor has it disputed by the respondent that the present appeal is a continuation of the original proceedings. It has also not been disputed that change of law can be taken into consideration. The contention of the respondent merely is that by applying the said proviso (b) to sub-section (5) of section 560 I will nullifying the effect of the express provisions contained in sections 647 and 658. It has also not been disputed that change of law can be taken into consideration. The contention of the respondent merely is that by applying the said proviso (b) to sub-section (5) of section 560 I will nullifying the effect of the express provisions contained in sections 647 and 658. So far as section 647 is concerned, the same is not, in my opinion, applicable. The said provision postulates a winding up order having been passed before the commencement of the 1956 Act and deals with the actual winding up of the affairs of the company. No doubt, the winding up of a company by Court commences from the date of the petition but it is only when an order for the winding up is made that it relates back to the date of pentition. The reference to clauses (i) and (ii) also lead to the suggestion that the view taken by me is in conformity with the intention of the legislature. . Mr. Misra says that the proviso to section 647 is destructive of the argument, that applicability of section 647 is confined only to the winding up of. . . . . . . . . the affairs of a company which has already been ordered to be wound up or where in case of voluntary winding up a resolution for the purpose has already been passed. I find no such justification from the language of the proviso. As a matter of fact, reference to-the four sections mentioned in the proviso would further support rather than destroy the arguments of Mr. Sawhney, Sections 463, 515 and 524 undoubtedly relate to the actual winding up of the affairs of the company and not passing of the winding up order or the resolution therefor. Some doubt may, however, arise as to why section 502 was made applicable by the said section deals with the appointment of liquidator. But a little closer scrutiny of the said section would show that it deals not only with the nomination of a liquidator by the creditors but also a stage posterior thereto. Reference may be made in this iconnection to proviso to sub-section (of section 502. It is significant that the provisons of section 502 are applicable "as far as may be". In cases of voluntary winding up it commences from the date of passing of the resolution. Reference may be made in this iconnection to proviso to sub-section (of section 502. It is significant that the provisons of section 502 are applicable "as far as may be". In cases of voluntary winding up it commences from the date of passing of the resolution. That is patent from the mere reading of section 441. It follows that insofar as the voluntary winding up is concerned, section 647 would come into play only where the resolution had been passed before the commencement of the 1956 Act and, therefore, section 647 at least so far as voluntary winding up is concerned, deals with a stage after the commencement of the win ding up. To my mind it appears that even in case of winding upthrough Court the section applies only where an order for winding up has been passed before the coming into force of 1956 Act and does not mean that theCourt has to abide by the provisions of 1913 Act in considering whether or not to pass a winding up order. Of course, where rights are. concerned the Court may have to look to 1913 Act- because of the provisions of General Clauses Act and section 658. The matter can belooked at from another point of view. As I have said earlier in case of winding up by Court it is only when a winding up order is passed that it dates back to the date of petition. When section 647 says "where the winding up of a company has commenced before the commencement of this Act" it must mean that both the order and petition for winding up are of a date prior to the commencement of the 1956 Act, My conelusion, therefore, is that the section will apply only to the winding up of the affairs, of the company. So far as section 6 of the General Clauses Act is concerned, no doubt the repeal cannot affect,, unless a different intention appears, any investigation, legal proceedings or remedy in respect of any right, privilege, obligation, liability/penalty, forfeiture or punishment, but in a case like the present no right of any party is being affected or taken away. It is only procedural impediment, if. at all it existed, under the 1913 Act to first get the dissolution order discharged, that is removed by proviso (b) to section 560 (5 ). It is not the ease of Mr. It is only procedural impediment, if. at all it existed, under the 1913 Act to first get the dissolution order discharged, that is removed by proviso (b) to section 560 (5 ). It is not the ease of Mr. Misra that no company, which has been struck off the register and dissolved, can at all be wound up. All that he contends is that it cannot be wound uptill the dissolution order has been got vacated. . . That being the position, I am inclined to the view that in an appeal it is open to apply the change in law and direct winding up of a company. ( 5 ) COMING now to the position that obtained under the 1913 Act, I am of the opinion, that possibly such an order could be made even under that Act without first getting the dissolution. In Re C mbridge Coffee Room Ass ciation, Ltd. Wynn Parry,. J. said-- "in all the circumstances it appears desirable that the petition in. such cases should follow the form of this amended petition which asks that the name of the company be restored to the register and then that the company be wound up. "at the same time it is clear from the judgment that in number of cases compulsory winding up order had been made without the name of the company having been restored to the register. Parry, J, expressed the view that he did not intend to cast doubt on past cases where such a order had been made. It is suggested that Wynn-Parry, J. only thought that procedure to be more corvenient, but in India even the question of advisability of such a course does not arise because in the Indian Act there are no provisions corresponding to section 354 expressly declaring the property of a dissolved company tobe bona vacantiala. That, to may mind, does not make any difference. Although such a provision does not exist in the Companies Act, 1956, but the principle of bona vacantia would be as much applicable in India as in England. Since I have held in favour of the appellants on the first point it is not necessary to carry the matter further. May be that the effect of a winding up order itself is to vese the custody of the company s property in Court and divest the State of the same. Since I have held in favour of the appellants on the first point it is not necessary to carry the matter further. May be that the effect of a winding up order itself is to vese the custody of the company s property in Court and divest the State of the same. I must also refer to the Judgment of the Lahore High Court reported in Parduman Singh v. Pioneer Jewellery Company, Limited. on which a strong reliance has been placed by the learned counsel for the respondent. There it was held that a person to whom the liquidator. had. transferred a payment order made by the Court under section 150 against a contributpry, was entitle to invoke the summary jurisdiction of the Court for the prupose of recovering the money due from the latter, and the circumstance that the company has been finally dissolved did not prevent the assignee from seeking relief from the liquidation Court. It was observed by Shadi Lal,c. , J.- "it is true that section 159 requires the Court to pass on order of dissolution when the affairs of the company have been completely wound up, and there is authority for the view that unless and untill the order of dissolution has been set aside, it prevents any proceedings. being taken against the promoters, directors or officers of the company inrespect of any misfeasance or breach of trust, or a creditor proving a debt against the company, vide, Halsbury s Law of England, Volume V. page 567. "i do not see how that case is relevant for determining the issue now be foreme. Here there is no diupute that company can be wound up. The dispute is within a narrow campass, namely, whether it can be wound up without first getting the dissolution vacated ? In this view. , the appeal must succeed and is allowed. There will, therefore, be no order as to costs. The matter will now be taken up by the appropriate Court for disposal on merits.