Judgment :- PALANISWAMY J. This application taken out by the plaintiffs in C.S.No. 230 of 1956 on the file of this court raises an important question of law under section 446 of the companies Act, 1956, . The applicants are the sons of one Kolamdayappa Gounder, who is the second defendant in the suit. The first defendant, Muthuswami, Gounder, is the father of Kolandayappa Gounder. The said two defendants started a business called "Sri Murugan Oil Industries Private Ltd, Karpur, and incurred loss. Some creditors of the company took out C.P.No. 23 of 1958 alleging that the company was insolvent and should be wound up. Overruling the objections on behalf of the company preferred O.S.A. No. 62 of 1959. The appellate court dismissed the appeal confirming the order of winding up. The applicants, court dismissed to the winding up order, instituted O.S.No. 228 of 1964 on the file of the Subordinate's judge, Tiruchirapalli, impleading their father and grandfather and some alienses of their family properties and creditors as defendants along with the official liquidator, and prayed for partition of their joint family properties. They questioned several acts of their father and grandfather contending that those acts were not binding on them. As per the order of this court 6tat suit was withdrawn to the is court and numbered as C.S.No. 230 of 1965. One of the objections raised on behalf of the official liquidator is that the suit is incompetent inasmuch as the leave of this court had not been obtained before the institution, as required under section 446 of the companies Act. To get over that objection the applicants have taken out this application praying for grant of leave with retrospective effect to enable them to prosecute the suit. Objections are raised on behalf of the official liquidator to the effect the the commencement of the suit itself was barred under section 446 and that leave cannot be granted with retrospective effect to cure that fatal and fundamental defect that existed at the very inception of the commencement of the proceeding. Objections are raised on behalf of the official liquidator to the effect the the commencement of the suit itself was barred under section 446 and that leave cannot be granted with retrospective effect to cure that fatal and fundamental defect that existed at the very inception of the commencement of the proceeding. There appears to be no direct decision of this court on this questionSection 446(1) reads thus When a winding-up order has been made or the official liquidator has been appointed as provisional liquidator no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order shall be proceeded with against the company, except by leave of the court and subject to such terms as the court may impose." * This section does not impose a total prohibition against proceedings either being taken or continued against the company in liquidation. The object underlying this section is to safeguard the assets of the company in winding up against wasteful or expensive litigation in regard to matters capable of being determined expeditiously and cheaply by the winding up court itself, with a view to ensure equitable distribution of the assets among those entitled thereto and also to prevent the administration from being embarrassed by a scramble among the creditors and others having rights against the company. Palmer in Company Precedents, Part II, 17th edition, at page 302, observes When a winding up order is made, the court acting by its officer - official receiver - lays its hand upon the assets and says, no creditor or claimant must touch these assets or take proceedings, by way of action, execution or attachment pending the distribution by the court in due course of administration. This protection is indispensable equally in winding up and in bankruptcy to prevent a scramble for the assets, but it is not always enough. An even handed justice requires that the court should have power to intervene at an early stage for the protection of the assets, and this power is given by this section ." The question whether obtaining leave of the court before the commencement of the suit or other legal proceedings is a condition precedent for such commencement. An even handed justice requires that the court should have power to intervene at an early stage for the protection of the assets, and this power is given by this section ." The question whether obtaining leave of the court before the commencement of the suit or other legal proceedings is a condition precedent for such commencement. It is contended on behalf of the applicants that, though, initially, the absence of leave may be defective, that defect can be cured by the court granting leave with retrospective effect, and that the object of the legislature in requiring that leave should be obtained before the commencement of the suit or other legal proceedings is only to out the official liquidator on notice of such intended proceedings. Authorities are not uniform on this question. In People's Industrial Bank Ltd, v. Ram Chander Shukul the suit was commenced after the winding up order had been made, but without obtaining leave of the court. Leave was granted during the pendency of the suit under section 172 of the companies Act of 1913, corresponding to section 446 of the present Act, 1956. The liquidator neither contested nor appealed against the order granting leave. The court held that, in these circumstances, the leave cannot be said to be a nullity and the suit is not liable to be dismissed on the ground that leave had not been obtained before the institution of the suitIn Roopnarain Ramchandra Private Ltd, v. Brahamapootra Tea Co, to winding up order of the company was passed during the pendency of the suit against the company. Leave of the court was not obtained to continue the suit. The suit ended in an ex parte decree. The question considered was whether the court had valid session of the matter at the inception and lost its jurisdiction to deal with the matter and to pass a decree merely on account of the passing of the winding up order. Ray J, held that the absence to leave to continue the suit would not deprive the court of jurisdiction to, pass a decree and the existence of the jurisdiction does not depend upon the such leave. No doubt, there is an observation of the learned judge to t e effect of that in appropriate cases leave can be given even retrosepectively if circumstances of the case justify. No doubt, there is an observation of the learned judge to t e effect of that in appropriate cases leave can be given even retrosepectively if circumstances of the case justify. In Bhagawati Devi Bubna v. Dhanraj Mills a winding up order was passed against the company pending a suit against it. Leave of the court was not obtained to continue the suit, and a decree was passed. It was held that the decree was not void but was only voidable at the instance of the official liquidator. In coming to that conclusion, the court referred to section 537 of the Act, which , inter alia, declares void any attachment, distress, or execution put in force without leave of the court, against the estate or effects of the company, after the commencement of the winding-up. Inasmuch as that section expressly provides that such a proceedings would be void and inasmuch as there is no express provision saying that any proceeding cpmmenced or continued without the leave of the court as required under section 446 is void, the learned judges held that the decree passed in the absence of have would only be voidable but not voidIn Varkey Thomas v. Catholic Bank Of India Ltd, the learned judge, Raman Nayar, J, held that obtaining leave under section 446 before the institution of the proceedings is not a condition precedent that it would be open to the court to grant leave subsequent to the commencement. The leanred judge preferred to follow the view taken in People's Industrial Bank Ltd, v. Ram Chandra Sukul Nazier Ahmed v. People's Bank of Northern India Ltd, ; Krishna Pillai v. travancore National and Quilon Bank Ltd, and Suresh Chandra v. Babk of Calcutta in preference to the contrary view taken in People's Bank of Northers India Ltd, v. Fathechand & Co Ltd, In re Steel Construction Ltd and Harnarain Misra v. Kanhaiyalal Lohawalla, . The learned judge has further observed that the word "commenced" occurring in section 446 of the companies Act must, in relation to the words "suit or other legal proceeding", be understood in the English sense as meaning of the issue of process by the court rather than the presentation of the plaint or other by which a legal proceedings is instituted In Ammukutty v. Manvikraman the question considered was whether a suit instituted against a receiver appointed by the court which obtaining the leave of the court was maintainable and whether leave could be granted does not affect the jurisdiction of the court but is only an illegality which could be effectively cured by the plaintiff obtaining the section during the pendency of the litigation. That decision, on which reliance was placed on behalf of the plaintiffs, is not relevant because as observed by the learned judges themselves, the sanction contemplated therein is not a condition precedent imposed by any statutory law like the sanction mentioned in section 92 of the Code of Civil Procedure or section 17 of the Presidency Towns Insolvency Act., but is a sanction imposed by the common law to enforce due respect towards courts of justice. In that view, the learned judges held that the failure to obtain the prior leave of the court to sue the receiver would not affect the jurisdiction of the courtWhat is barred under section 446 of the companies Act, is among other things, the commencement of the suit to other legal [proceedings against a company in liquidation without the leave of the court. An almost similar expression is found in section 17 of the Presidency Towns Insolvency Act, and section 28(2) of the Provincial Insolvency Act, imposing a ban on creditors to whom the insolvent is indented, from, commencing any suit or other legal proceeding against the property of the insolvent in respect of the debt except with the leave of the insolvency court. The expression occurring in section 17 of the Presidency Towns Insolvency Act, was construed by the Bombay High Court in In re Dawarkdas Tejbandas as meaning that the obtaining of the leave of the court is a condition precedent for the institution of the suit and that leave cannot be granted after the suit is filed. The expression occurring in section 17 of the Presidency Towns Insolvency Act, was construed by the Bombay High Court in In re Dawarkdas Tejbandas as meaning that the obtaining of the leave of the court is a condition precedent for the institution of the suit and that leave cannot be granted after the suit is filed. Following this decision of the Bombay High Court a Bench of this court consisting of Odgers, and Curgenven JJ, in Ghouse Khan v, . Bala Subba Rowther, construed an identical expression occurring in section 28(2) of the Provincial Insolvency Act and held that the leave is a condition precedent for the institution of the suit and cannot be granted after the institution so as to take effect retrospectively I am unable to share the view of Rama Nayar J in Verkey Thomas v. Catholic Bank of India Ltd, that the word "commenced", occurring in section 446 of the Act, should be understood as meaning the issue of process by the court rather than the presentation of the plaint. Section 26 and Order IV, rule 1, of the Code of Civil Procedure, lay down as to how a suit shall be instituted. According to those provisions, a suit shall be instituted by presenting a plaint to the court. That means the moment the plaint is presented the suit should be deemed to be instituted. Institution does not depend upon the issue of process. Under section 52 of the transfer of the Property Act, . during the pendency of a suit relating to any right in an immovable property, the property cannot be transferred or otherwise dealt with so as to affect the rights of the party to the proceedings., This is what is called lis pendens. The explanation to that section enacts that the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or institution of the proceedings in a court of the competent jurisdiction. Commencement of the proceedings does not depend upon the issue of process so as to attract the bar of Lis. The words "commence" and "institution" appear to be synonymous. In Ponnuswami v. Kaliapewrunal it was held that a suit commences with the presentation of the plaint. Commencement of the proceedings does not depend upon the issue of process so as to attract the bar of Lis. The words "commence" and "institution" appear to be synonymous. In Ponnuswami v. Kaliapewrunal it was held that a suit commences with the presentation of the plaint. The same view was taken by a Bench of the Lahore High Court in People's Bank of Northern India Ltd, v. Fatechand & Co. Ltd, , . The word "commenced" occurring in section 446 of the companies Act has to be understood in the right of the expression "shall be proceeded with" occurring in the same section. The expression "shall be proceeded with" is intended to covr the case of those suits or other legal proceedings which were pending at the time of the liquidation proceedings. In respect of these proceedings, the legislature has enacted that they should not be proceeded with until the leave of the court is obtained, and such proceedings shall remain pending till such leave is granted. But as regards new suits or proceeding to be instituted, the legislature has used the word "commenced" and it has enacted that such commencement shall not be made until the leave of the court is granted. To hold that "commencement" would take place only after the issue of the process would mean that if a plaint is presented, it could be taken on file and kept till the issue of process. To hold that such presentation and taking on file is not barred under section 446 would virtually render the provision nugatorySection 17 of the Presidency Towns Insolvency Act and section 28(2) of the Provincial Insolvency Act are restricted, in their application only to suits or other legal proceedings which may be instituted by a creditor against the property of the insolvent in respect of a debt. But section 446 of the Companies Act is wide in its terms and is not restricted to any category of suits or any class of plaintiffs. It is wide enough to cover all suits and other legal proceedings whoever may be plaintiff. Though the bench decisions in Ghose Khan v. Bala Subba Rowther, is regarding the scope of the section 28(2) of the Provincial Insolvency Act, I respectfully, feel that the ratio decidendi of the decision is equally applicable to a consideration of the question regarding the scope of section 446 of the companies Act also. Though the bench decisions in Ghose Khan v. Bala Subba Rowther, is regarding the scope of the section 28(2) of the Provincial Insolvency Act, I respectfully, feel that the ratio decidendi of the decision is equally applicable to a consideration of the question regarding the scope of section 446 of the companies Act also. The words used in both the enactments are almost similar except for the difference that in the former Act, the matter is put in the active voice while in the latter it is in passive voice. But the object underlying the two provisions is similar. Whereas in the former Act the objects to void embarrassment and difficulty in the administration of the estate of the insolvent by the official receiver, in the latter act the object is to avoid embarrassment and difficulty in administering the properties of the company in liquidation by the official liquidator. I do not find any ground to distinguish the Bench decision to support the contention urged on behalf of the plaintiff that the court has jurisdiction to grant leave with retrospective effect In the instant case, there is no difficulty for the plaintiff;s to seek the leave of the court and institute a fresh suit, as there is no question of limitation . Moreover, the applicants are not strangers to the parties to the liquidation proceedings. They are the sons and grandsons of the directors of the company and it is idle on their part to contend that they were not aware of the winding-up proceedings when they instituted the suit for partitionFor all the forgoing reasons, I am of the view that leave of this court cannot be granted with retrospective effect to enable the applicants to prosecute C.S.No. 230 of 1965, which they have instituted without obtaining the leave of the court. The application is accordingly dismissed with costs of the official liquidator.