JUDGMENT : ( 1. ) THIS appeal is directed against an order dated 28-2-1962 passed by Newaskar J. , in Interlocutory Application No 99 of 1962 in Company Case No. 1 of 1950. ( 2. ) WINDING up proceedings are pending in this Court in respect of vikaram Sugar Mills Limited. One of the creditors of the Company, Mrs. Raja kakarlapudi Sudarsana Sundara Narasayamma submitted an application on 20-12-1954 under section 235 of the Indian Companies Act, 1913, alleging misfeasance, breach of trust and misapplication of the funds of the Company by the Directors during the period of their management. Mrs. Raja Kakarlapudi Sudarsana Sundara Narasayamma died on 21-9 1957. Her daughters filed an application on the 15th January 1962 for bringing their names on record as legal representatives and sought permission to continue the proceedings. This application was opposed by the Directors on the ground that as the legal representatives were not brought on record within the period of limitation and as the period for setting aside abatement had expired and no sufficient cause was made out to explain the delay, the proceedings initiated under section 235 of the Indian Companies Act, 1913 on the application of mrs Raja Kakarlapudi Sudarsana Sundara Narasayamma abated. This contention was upheld by the learned Single Judge who held that as the application to bring on record legal representatives was filed more than four years after the death of Mrs. Raja Kakarlapudi Sudarsana Sundara Narasayamma, it was not maintainable; and the proceedings under section 235 of the Indian companies Act, 1913 were held to have abated. It is against this order that the present appeal has been preferred. ( 3. ) A preliminary objection has been raised by Mr. Pandey, learned counsel for the respondents, that the present appeal is not competent. The contention is that by the order appealed against it has been merely held that the proceedings commenced on the petition of Mrs. Raja Kakarlapudi Sudarsana Sundara Narasayamma have abated. It is, therefore, urged that as the order does not decide the rights of parties, no appeal under section 202 of the indian Companies Act, 1913 is competent. ( 4. ) NOW, it was not disputed before us that the order in question was an order made in the matter of winding up of a Company. It is, therefore, urged that as the order does not decide the rights of parties, no appeal under section 202 of the indian Companies Act, 1913 is competent. ( 4. ) NOW, it was not disputed before us that the order in question was an order made in the matter of winding up of a Company. There were two points of view presented to the Court by the contesting parties and the Court was called upon to decide as to whether the proceedings initiated against the directors under section 235 of the Act have abated on account of death of the creditor who submitted the application. The decision of the Court has resulted in termination of proceedings against the Directors under section 235 of the Act. The order of the Court, therefore, was, in these circumstances, a judicial order as distinguished from merely an administrative order. It has been held by the Supreme Court in Shankarlal Aggarwala and others v. Shankarlal Poddar and others ( AIR 1965 SC 507 .), that the words "order or decision" occurring in section 202 of the Act would exclude merely procedural orders or those which do not affect the rights and liabilities of parties. Therefore, the contention of the learned counsel for the respondent that the appeal is not maintainable cannot be accepted. ( 5. ) THE real question for consideration in the present appeal is whether the proceedings under section 235 of the Act against the delinquent directors terminate on the death of the creditor on whose application the Court had commended inquiry into the conduct of the delinquent directors. The learned single Judge has held that in the absence of specific rules to the contrary, the procedure provided under Order 22, rule 3 of the Code of Civil Procedure would be applicable to the proceedings under section 235 of the Act, by virtue of section 141 of the Code. The learned Single Judge has, therefore held that as the legal representatives of the deceased creditor failed to submit an application as required by the provisions of Order 22, rule 3 of the Code within time, the proceedings under section 235 of the Act have abated. ( 6. ) SHRI Waghmare, learned counsel for the appellants did not dispute before us that proceedings under section 235 of the Act are proceedings in a court of civil jurisdiction. ( 6. ) SHRI Waghmare, learned counsel for the appellants did not dispute before us that proceedings under section 235 of the Act are proceedings in a court of civil jurisdiction. He, however, assailed on three grounds the finding of the learned Single Judge that the procedure provided under Order 22, rule 3 was applicable to proceedings under section 235 of the Act by virtue of section 141 of the Code. In the first place, it was contended that the provisions of section 141 of the Code were applicable to such proceedings only as originated in themselves and not to those which sprang up from a suit or from some other proceedings which arose in connection therewith. It was. therefore, contended that as the proceedings under section 235 of the Act do not originate in themselves, but arise in connection with winding up proceedings, the provisions of section 141 of the Code are not attracted. Reliance in this behalf was placed on the decisions reported in Thakur Prasad v. Fakir Ullah (ILR 17 All. 106.), sarat Krishna Bose v. Bisweswar Mitra and others (A I B 1927 Cal. 524.), Ma Than Sain and others v. Ma Hla Yi (AIR 1941 Rang. 201. ). It was next contended that section 141 of the Code provides for the applicability of procedure only and as the provisions of Order 22, rule 3 of the Code, which provides for abatement of proceedings, could not be said to be provisions relating to procedure inasmuch as they affect substantive rights of parties, they were not applicable to proceedings under section 235 of the act. Lastly, it was contended that, in any event, only those provisions of the code of Civil Procedure would be applicable by virtue of section 141 as could be made applicable to proceedings under other Acts. It was urged that the nature of proceedings under section 235 of the Act was such that provisions relating to abatement of proceedings under Order 22, rule 3 of the Code could not be made applicable to them. ( 7. ) WE have heard learned counsel for the parties at great length, and we have come to the conclusion that this appeal must be allowed. ( 7. ) WE have heard learned counsel for the parties at great length, and we have come to the conclusion that this appeal must be allowed. Though there appears to be much force in the first two grounds urged by learned counsel for the appellants, this appeal must succeed on the short ground that the nature of proceedings under section 235 of the Act is such that the provisions relating to abatement in the Code of Civil Procedure cannot be made applicable to those proceedings. Section 235 of the Act reads as under- "235. (1) Where, in the coarse of winding up a company, it appears that any person, who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company has misapplied or retained or become liable or accountable for any money or property of the company or been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of the liquidator or of any creditor or contributory made within three years from the date of the first appointment of a liquidator in the winding up or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer, examine into the conduct of the promoter, director, manager, liquidator or officer and compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust as the court thinks just. (2) This section shall apply notwithstanding that the offence is one for which the offender may be criminally responsible. " ( 8. ) THIS section is similar to section 333 of the Companies Act, 1948, in force in England. It has been observed in "buckley on the Companies Acts" (Thirteenth Edn.) at page 672 as follows : "as regards applications by the liquidator, the Act gives after winding up new right which did not exist before winding up, and which can be enforced only in the winding up. so that it is not in this sense correct to say that the liquidator can recover only what the company could have recovered. so that it is not in this sense correct to say that the liquidator can recover only what the company could have recovered. But it is a correct statement that this section is a procedure section only. It merely provides a summary method for enforcing such liabilities as might have been enforced by the company itself or by its liquidator by means of an ordinary section, including new rights created by the winding up. " The nature of these proceedings is succinctly, stated in "palmers Company law" (Twenty First Edn.) at pages 585 and 586: "this section gives a liquidator the right, inter alia, to apply to the Court to examine the conduct of a director or past director (such examination will include questions of law) and the Court may then compel a delinquent director to repay or restore any money which he has misapplied or retained or become liable or accountable for to the Company, or to contribute to the companys assets an appropriate rem by way of compensation. Such an application is made by summons which may he taken out by the official receiver, the liquidator, or any contributory or creditor, so that a director who has a controlling interest in the company will not thereby be able to evade an examination of the allegations against him by the Court by-pleading the rule in Foss v Harbottle. . . . . . . . The section itself does not create any new rights. Accordingly, if the company, or its liquidator, has a right of action against a director, the section can be employed in the winding up as a cheaper and equally effective summary method of enforcing the right. It should however, be remembered- (1) that the action permits the enforcement of the companys right by any one creditor or contributory (as stated above); and (2) that the commencement of a winding up itself may create rights for the liquidator which might not have been available to the company itself while agoing concern. . . . This section, on the other hand. . . . This section, on the other hand. (1) is not available to a creditor or contributory to assert a personal right against a director, e. g. for liability towards a share bolder upon a prospectus; (2) nor does it enable the company to recover from a director a mere monetary claim, owed to the company; (3) nor is it available to a creditor or contributory who can have no pecuniary interest in the result. . . . The Court is given a discretion, both as to whether or not it will grant the relief sought, and as to the amount of relief which it gives. This is in contrast to an action by the company against a director, where the Court would be bound to give judgment in accordance with the legal rights established. Thus, in Re Sunlight Incandesoant Gas Lamp Co. , the Court refused relief where the only persons having a pecuniary interest were the share holders, and where the majority of these were willing to waive a claim in respect of an alleged secret profit by directors. " ( 9. ) IT is thus quite clear that as soon as an application contemplated by section 235 of the Act is made, the Court, in which winding up proceedings are pending, has to examine the conduct of the delinquent officer of the company and to grant such relief as that Court considers just, resulting, in augmentation of the assets of the company. It is noteworthy that no relief is given to the applicant as such who has initiated the proceedings. Now it was conceded by learned counsel for respondents that when the applicant happens to be the liquidator, the question of abatement of proceedings on the death of the applicant cannot arise. It, therefore, does not stand to reason that such proceedings should abate on the death of the applicant if the applicant is a creditor or a contributory. The nature of proceedings under section 235 of the Act is such that the provisions of Order 22, rule 3 of the Code cannot be made applicable to those proceedings. ( 10. ) NONE of the decisions referred to by the learned Single Judge deals with the question of applicability of Order 22, rule 3 of the Code to a proceeding under section 235 of the Act. ( 10. ) NONE of the decisions referred to by the learned Single Judge deals with the question of applicability of Order 22, rule 3 of the Code to a proceeding under section 235 of the Act. Those decisions lay down that proceedings under section 235 of the Act are legal proceedings in a Court of civil jurisdiction. This proposition cannot be disputed and is not being disputed before us. It has been held in Vadilal Ghatrabhuj v. Thakoreial Chimanlal and others5, relied upon by the learned Single Judge, that although section 141 of the Code would apply to proceedings under the Companies Act, it does not follow that each and every provision of the Code of Civil Procedure would apply to proceedings under section 235 of the Act. In that case, the procedure laid down in Order 23, rule 3 of the Code was made applicable. But that was because the learned Judges deciding that case came to the conclusion that there was nothing in section 235 of the Act which could render the provisions of Order 23, rule 3 inapplicable to those proceedings. From a perusal of various authorities referred to by the learned Single Judge, the principle deducible appears to be that although the provisions of section 141 are made applicable to certain proceedings under the Companies Act, the matter will have to be examined in each case to find out as to whether a particular provision of the Code of Civil Procedure can be made applicable to a particular proceeding under the Companies Act. There cannot be a uniform rule in that behalf. The observation by the learned Single Judge that-"it thus seems to be fairly agreed on authorities that except where specific rules framed under the Indian Companies Act indicate a contrary procedure, the procedure provided under the Civil Procedure Code for the trial of a suit would apply to a proceeding under section 235 of that Act", does not appear to be quite correct. If in the nature of proceedings under a particular provision of the Companies act it is found that a particular provision of the Code of Civil Procedure cannot be made applicable, then in that event section 141 of the Code does not empower the Court to apply the provisions of the Code of Civil Procedure. If in the nature of proceedings under a particular provision of the Companies act it is found that a particular provision of the Code of Civil Procedure cannot be made applicable, then in that event section 141 of the Code does not empower the Court to apply the provisions of the Code of Civil Procedure. In fact, in proceedings under section 235 of the Act there is no question, once an application is presented and the Court has commenced an inquiry into the conduct of delinquent directors, of bringing legal representatives of the deceased applicant on record. The question of bringing legal representatives of the deceased applicant would have arisen only if the proceedings had abated on the death of the applicant. The order passed by the learned Single judge holding that proceedings under section 235 of the Act have abated, is, therefore, set aside. Those proceedings shall continue and the Company Court will pass such order on merits it thinks fit. ( 11. ) FOR all these reasons this appeal is allowed with costs. Counsel fee rs. 100 (one hundred) if certified. Appeal allowed.