JUDGMENT This is an application for execution of the order passed by the Hon'ble Mr. Justice Murari Mohan Dutta and Hon'ble Mr. Justice A. K. Sarkar on 21st May, 1981 in Company Petition No. 274 of 1967. By the aforesaid order the Division Bench passed the following order : "It is ordered that the order of trial Court dated the twenty fourth day of June in the year one thousand nine hundred and seventy be and the same is hereby set aside And it is further ordered that the affairs of the respondent Turner, Morrison & Co. Ltd., abovenamed and its subsidiaries being respondents Lodha Colliery Company (1920) Ltd., Shalimar Tar Products (1935) Ltd., Anglo Brothers Ltd. abovenamed be investigated by the Central Government in the manner laid down in Sections 237 to 251 of Companies Act, 1956 And it is further ordered that such investigation shall be for the period from January in the year one thousand nine hundred and seventy two and shall he started and completed by the Central Government as expeditiously as possible And it is ordered that the Registrar (Original Side) of this Court do within two months from the date hereof send a copy of this judgment to Ministry of Law Justice and company Affairs. Government of India And it is further ordered that all interim orders passed herein shall stand vacated And as other respondents abovenamed have not appeared at the hearing of this appeal And this Court does not think fit to nuke any order as to the costs of and incidental to this appeal." 2. Mrs. Mukherjee, learned Advocate for the decree holder submits that the said judgment of the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure. Mrs. Mukherjee submits that the dividend which was withheld is to be released under the said decree. Mrs. Mrs. Mukherjee, learned Advocate for the decree holder submits that the said judgment of the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure. Mrs. Mukherjee submits that the dividend which was withheld is to be released under the said decree. Mrs. Mukherjee relies on a decision in the case of (1) Peary Mohan Mookerjee v. Manohar Mookerjee, reported in AIR 1924 Cal 160 wherein it has been held as follows :– "According to the view now adopted in Bombay the word 'matter' in the definition means the actual subject-matter of the suit with reference to which some relief is sought, and the word 'right' means substantive rights of the parties which directly affect the relief to be granted or which, in the words of definition, relate to all or any of the matters in controversy. Tested from this point of view, there is really no room for dispute that the order under appeal is a decree. This view is supported by the decision of the Judicial Committee in Bhup Indar Bahadur v. Bijai Bahadur (9), where Lord Hobhouse held that all adjudication that mesne profit were recoverable in respect of a defined period was in its nature a decree within the meaning of the Code. This is not inconsistent with the decision in Bharat Indu v. Yukub Hussain (10), and Ghulusam Bibi v Ahamadsa Rawther (11), and is in accord with the view adopted in Kamini Debi v. Paramathanath(5). It may be conceded that the legislature contemplated that ordinarily there should be one preliminary decree and one final decree in a suit; the preliminary decree ascertains what is to be done, while the final decree states the result achieved by means of the preliminary decree, But as observed by Pigott. J. in Yukub Hussain v. Bharat Indu (12) there may be exceptions and the case before us furnished an instance. Here the original suit was for removal of the Shebair, for cancellation of the judicial sale, and for recovery of the trust property. The decree made in the suit has directed the removal of the shebait, and the cancellation of the sale subject to the investigation of a accounts to be rendered by the shebait in a supplementary proceeding. Here the original suit was for removal of the Shebair, for cancellation of the judicial sale, and for recovery of the trust property. The decree made in the suit has directed the removal of the shebait, and the cancellation of the sale subject to the investigation of a accounts to be rendered by the shebait in a supplementary proceeding. The order which has now been made is in essence a preliminary decree in the supplementary proceeding and will lead up to the final decree to be made therein. It is not essential that an adjudication should be covered by one of the specific cases of preliminary decrees mentioned in O. XX of the code in order that it may form the basis of a final decree, those cases are illustrations of preliminary decrees and help us in determining the true meaning of the definition of the term 'decree'. Whether the order made by the Judge possesses the qualities of a decree, preliminary or final or partly preliminary and partly final clearly depends upon its contents. We are of opinion that the order now under appeal is a decree and that the objection to the competency of the appeal cannot be sustained." Mrs. Mukherjee also relies upon a decision reported in (2) AIR 1971 Mysore 350 and also another decision reported in (3) AIR 1976 Gujarat 152 (Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi). In the case reported in AIR 1976 Gujarat 152 it has been held as follows :– "2. Now the question is whether the order of the Court on the preliminary issue amounts to a decree. Section 2(2) of the Civil Procedure Code defines what a decree is. According to the said definition a decree is a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Now the learned trial Judge has held that the notice of eviction was defective and the plaintiff was not entitled to a relief for recovery of possession or the suit premises because of the defective notice. The learned Judge has held that the suit for eviction was not competent and maintainable. He further directed that the suit should proceed only with respect to the claim for monetary relief. The learned Judge has held that the suit for eviction was not competent and maintainable. He further directed that the suit should proceed only with respect to the claim for monetary relief. Now, so far as the relief for possession is concerned there is a substantive decision or determination. The decision of the learned trial Judge on the point is clearly a final adjudication between the parties in respect of the suit for possession. The order of the learned trial Judge conclusively determines the rights of the parties on the question of eviction. The determination for the relief of possession is final and conclusive so far as the trial Court is concerned. The question whether the adjudication is a decree or not has to be determined with reference to the definition of decree given in Section 2 (2) of the Civil Procedure Code. The trial Court has undoubtedly adjudicated on the substantive rights of the parties with regard to the controversy for recovery of possession of the suit premises. The order of the trial Judge is clearly indicative of the fact that he has finally determined the issue relating to possession and there is formal expression of the said adjudication. It is true that the learned trial Judge has taken the view that only finding on the issue has been given by him and he has passed only a formal order and, therefore, no decree need be drawn as there had been no final disposal of the suit. There is obvious difference between a simple finding and a finding which terminates the suit. To determine the exact nature and extent of a finding reference to the definition of decree given in Section 2(2) of the Civil Procedure Code is essential. Merely because the trial Court heads his finding as an order is not determinative of its nature not his conclusion to that effect is conclusive. The question whether an order passed by a Court amounts to a decree or not has to be determined with reference to the definition of decreed given in Section 2(2) of the Civil Procedure Code and the test to be applied is whether there is a formal expression of adjudication, which as regards the Court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit. In the aforesaid view of mine I am supported by the decisions of the Madras High Court in (4) V. Adinarayan Chetti v. Kopparam Narasinha Chetti, ILR 54 Mad 337 : AIR 1931 Mad 471 and (5) Kasi v. Rm. A.R.M.V. Ramanathan Chettiar (1947) 2 Mad LJ 523. Whether an order passed by a Court is a decree or not cannot depend on the drawing up of a decree by the Court as formal drawing up of a decree is the duty of the Court vide (6) Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 and (7) Parashuram Rajaram Tiwari v Hirabal Rajaram Tiwari, AIR 1957 Bom 59 . If a Court dies not draw up a decree it cannot be said that the order of the Court by which rights of the parties are finally adjudicated upon is not a decree. There can be more than one final decree in a suit where two or more causes of action are joined together. There is no provision in the Civil Procedure Code which prevents the Court from passing two final decrees, if the circumstances of the case so require, vide (8) Fatmabai W/o. Rasim v. Abubaker Taramahmed, AIR 1946 Sind 58. The present suit is a composit suit being a suit for possession and a suit for arrears of rent, and the issue between the parties with regard to possession of the suit premises is finally decided by the trial Court. Thus there is final adjudication on the issue of possession and this determination amounts to a decree within the meaning of Section 2(2) of the Civil Procedure Code. The impugned order of the learned Trial Judge refusing to draw up a decree, therefore, is erroneous and the same is set aside. It is directed that the trial Court should draw up a decree in pursuance of the judgment and decision passed by it with respect to the claim for possession of the suit premises." Mrs. Mukherjee relies upon the provisions of Section 634 of the Companies Act and submits that any order made by a Court under the Companies Act may be enforced in the same manner as a decree made by the Court in a Suit pending therein. Mrs. Mukherjee relies upon the provisions of Section 634 of the Companies Act and submits that any order made by a Court under the Companies Act may be enforced in the same manner as a decree made by the Court in a Suit pending therein. Mrs. Mukherjee also relies on the provision of Section 2 of the Code of Civil Procedure and submits that the order passed by the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure. Mrs. Mukherjee also relies on Section 36 of the Code of Civil Procedure which reads as follows : "36. Application to orders–The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree), shall so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order)." 3. It is submitted by Mrs. Mukherjee that the present application for execution is for execution of the order of the Division Bench of this Court. It is further submitted by Mrs. Mukherjee that the period of limitation for enforcement of the decree is 12 yrs. and if the execution application has been filed within a period of 12 years, it would be within time Mrs. Mukherjee relies on several decisions. viz. (9) 15 Company Cases 57, (10) AIR 1953 Cal 610 , (11) AIR 1962 SC 403 , (12)42 Company Cases 556, (13) 44 Company Cases 173, (14) AIR 1970 Bom 271 and 74 Company Cases 577. 4. It is submitted by Mrs. Mukherjee that the executing Court can interpret a decree and hold that it is a decree for payment of money. Mrs. Mukherjee relies on a decision reported in AIR 1972 SC 1371 and submits that it is the duty of the executing Court to interpret the decree and to ascertain the circumstances under which the decree has been passed and the executing Court is duty bound to ascertain and findout the true effect of the decree. For construing a decree it can and in appropriate cases it ought to take consideration of the pleadings as well as proceedings leading upto the decree. Mrs. Mukherjee also relies on the decisions reported in (15) AIR 1960 SC 388 , (16) AIR 1919 Cal 151, (17) AIR 1951 SC 189 Mrs. For construing a decree it can and in appropriate cases it ought to take consideration of the pleadings as well as proceedings leading upto the decree. Mrs. Mukherjee also relies on the decisions reported in (15) AIR 1960 SC 388 , (16) AIR 1919 Cal 151, (17) AIR 1951 SC 189 Mrs. Mukherjee also relies on a decision in the case of (18) State of Punjab & Ors. v. Krishan Dayal Sharma reported in AIR 1990 SC 2177 wherein it has been held as follows : "No doubt the Courts have power to award interest on the arrears of salary or pension or other amount to which a Government Servant is found entitled having regard to the facts and circumstances of the case but that power cannot be exercised by the Execution Court in the absence of any direction in the decree." It is further submitted by Mrs. Mukherjee that the executing Court has got the jurisdiction to decide the question of waiver and acquiescence on the part of Hungerford Investment Trust in giving up its decretal claim on account of arrear dividend. It is submitted by Mrs. Mukherjee that in May 1981 when the Division Bench of this Court adjudicated this dispute and held that withholding of dividend of Turner, Morrison was illegal and wrongful, nobody submitted before this Court that the claim has been written off in 1975. Mrs. Mukherjee refers to the Turner, Morrison's application to the Reserve Bank of India filed on 19th June, 1974 wherein it has been submitted that the report of Hungerford Investment Trust is to the effect that the litigation is pending. At that point of time there was no other litigation excepting the appeal before the Division Bench. It is submitted by Mrs. Mukherjee that the unpaid dividend has to be transferred to a separate account under the provisions of Section 205A of the Companies Act. Mrs. Mukherjee also refers to the balance sheet filed on 3.11.75 wherein it is shown that the arrears of dividend were payable to Hungerford Investment Trust. It is submitted by Mrs. Mukherjee that unless and until full discharge and satisfaction of the decree is entered in the records of this Hon'ble Court, liability of the order dated 21.5.81 remains and the present execution application is within a period of 12 years and there is no bar of limitation. It is submitted by Mrs. It is submitted by Mrs. Mukherjee that unless and until full discharge and satisfaction of the decree is entered in the records of this Hon'ble Court, liability of the order dated 21.5.81 remains and the present execution application is within a period of 12 years and there is no bar of limitation. It is submitted by Mrs. Mukherjee that in the auditor's report for the relevant year there is no mention that any resolution was in existence to write off the liability of the payment of dividend, which goes to show that the said resolution is fabricated. Non-payment of the dividend of a company amounts to criminal offence under the Companies Act and such offences are continuing so long non payment continues and there is no question of any limitation. It is submitted by Mrs. Mukherjee that from the judgment of the Division Bench it is clear that the dividend of Hungerford Investment Trust from 1963 was unreasonably withheld and such withholding of dividend was an ad of mismanagement and oppression and the Division Bench directed making of the payment. It is further submitted by Mrs. Mukherjee that the alleged resolution to write off the dividend has not been produced before this Court. Only the purported xerox copy was produced and the very fact that there was no whisper of the alleged resolution dated 27.1.1975 when the matter was heard and judgment was delivered by the Division Bench on 21st May, 1981, shows that at least upto 21st May, 1981 the resolution was not in existence Had the resolution been in existence then the same would have been produced before the Division Bench and there would not have been any order passed by the Division Bench to pay dividend. Mrs. Mukherjee submits that the Companies (Amendment) Act came into force with effect from 1.2.75. Under the said Amendment Law Turner, Morrison had to deposit unpaid dividend in the designated account. Turner, Morrison acknowledged its liability in the balance sheet for the year 1966 signed by the directors on 3.12.75 and passed in the annual general meeting on 7.1.76 which goes to show that the resolution dated 27.1.75 was fabricated. Mrs. Under the said Amendment Law Turner, Morrison had to deposit unpaid dividend in the designated account. Turner, Morrison acknowledged its liability in the balance sheet for the year 1966 signed by the directors on 3.12.75 and passed in the annual general meeting on 7.1.76 which goes to show that the resolution dated 27.1.75 was fabricated. Mrs. Mukherjee submits that Article 136 of the Limitation Act contemplates that when a decree or order becomes enforceable within 12 years or subsequent order directs any payment of money, the test to be applied for determination is as to whether the decree was capable of being put into execution. 5. It is submitted by Mrs. Mukherjee that the decree/order passed by the Division Bench was not executable when the same was passed and without the execution of a decree as a whole or is depending on the happening of a contingency, the limitation will begin to run until upon happening of the contingency and not before. Mrs. Mukherjee relied on a decision reported in (19) AIR 1974 All 275 . It is submitted by Mrs. Mukherjee that this is a fit case where an order should be passed in terms of the prayer made in the execution petition. Mrs. Mukherjee also relied upon a decision reported in (20) AIR 1972 SC 1371 and submitted that the execution application was filed on 14.5.93 and relates to the execution of an order passed on 21.5.81, i. e., the present application was filed within 12 years and, as such, there is no question of any limitation. Before the Appeal Court, it is submitted by Mrs. Mukherjee, Turner, Morrison did not appear as there was no answer to the claim of payment of the arrear dividend. 6. Mr. Nag on behalf of the respondent, submitted that the present application for execution is the execution of a supposed order for payment of money. It is submitted by Mr. Nag that in the said order there is direction of investigation under Sections 237 and 251 of the Companies Act, 1956 to the affairs of Turner, Morrison & Co. Ltd. for the period January 1967 to September, 1972. It is submitted by Mr. Nag that it cannot be said any decree was passed or that the respondent is a judgment-debtor. Nag that in the said order there is direction of investigation under Sections 237 and 251 of the Companies Act, 1956 to the affairs of Turner, Morrison & Co. Ltd. for the period January 1967 to September, 1972. It is submitted by Mr. Nag that it cannot be said any decree was passed or that the respondent is a judgment-debtor. There is no order for payment of any money by the Division Bench and the Court cannot infer payment of money nor the order can be said to be a preliminary decree. It is further submitted by Mr. Nag that since there is no order for payment of any dividend, the order cannot be said to be a judgment for payment of money and the execution application is barred by limitation. Art. 136 of the Limitation Act provides for a period of 12 years–the present order was passed on 21.5.81 and the application was filed on 9.6.93 and an order was passed by this Court to issue notice making it returnable on 21.6.93, which is attracted in this case, the period is 3 years. In the present case, there is no valid acknowledgment extending of period of limitation. Mr. Nag submitted that the balance-sheet for Turner, Morrison & Co. Ltd. for the financial year ending on 31.12.71 contains the signature of N. S. Hoon, Chairman of Hungerford Investment Trust and there is similar acknowledgment in the balance sheet for the year 31.12.83 containing the signature of N. S. Hoon, wherein it is mentioned that there is no liabilities on account of unpaid dividend. It is further submitted by Mr. Nag that provision of Section 285A is not applicable in the instant case as the said section was amended in 1974 with effect from 1.2.75 and the Board resolution of Turner, Morrison & Co. Ltd. is dated 27.1.75, i. e., preamendment. Extension of Sub-section (1) or Section 205A is confined only to the Sub-section. It is further submitted by Mr. Nag that the supplimentary affidavit filed by N. S. Hoon affirmed in August, 1993 should not be looked into. 7. I have carefully considered the facts and circumstances of the case. It appears that the Division Bench of this Court passed an order on 21.5.81 by setting aside the order of the learned Trial Judge. Nag that the supplimentary affidavit filed by N. S. Hoon affirmed in August, 1993 should not be looked into. 7. I have carefully considered the facts and circumstances of the case. It appears that the Division Bench of this Court passed an order on 21.5.81 by setting aside the order of the learned Trial Judge. In the said judgment dated 21.5.81 it was also held regarding issue No. 4(a) which relates to the withholding of dividend payable to Hungerford from 1963 to 1965. The Division Bench presided over by the Hon'ble Mr. Justice Murari Mohan Dutta held in the judgment dated 21.5 81– ".........it must be held that the dividend of Hungerford from 1963 was unreasonably withheld and such withholding of dividend was an act of mismanagement and oppression to Hungerford within the meaning or Section 397 of the Companies Act." It further appears that the applications for execution was filed on 14.5.1993 and not on 9.6.1993, i. e., the application was filed within 12 years from the date of the order, i. e., 21.5.81, and, as such, the application is not barred by limitation. I further hold that the order passed by the Division Bench can be executed as a decree and, as such, the present application for execution is maintainable at law. 8. Hence the execution application be allowed. 9. After the hearing of the execution application was concluded another application was filed by Hungerford Investment for amendment of the said execution application. In the amendment application the applicant wants to amend the executable amount. Hearing of this application is also complete and after hearing the learned Advocates of both the parties I find that there was a typographical error in the execution application and I hold that this is a bona fide mistake and should be corrected. Therefore, the amendment application is allowed to the extent of principal amount is concerned only. 10. Now so far as the amended execution application is concerned, I am of the opinion that, the principal amount of Rs. 12,16,350.00 claimed as dividend for the years 1963, 1964, 1965 and 1966 should be allowed. So far as the interest on the dividend is concerned I am not entering into the merits of that. Because this is an application for execution of the order dated 21.5.81 and there is no question of payment of any interest in the said order. 12,16,350.00 claimed as dividend for the years 1963, 1964, 1965 and 1966 should be allowed. So far as the interest on the dividend is concerned I am not entering into the merits of that. Because this is an application for execution of the order dated 21.5.81 and there is no question of payment of any interest in the said order. The applicant may take steps about such interest in accordance with law. 11. Therefore, it is ordered that the respondent Company will pay Rs. 12,16,350.00 to the applicant within eight weeks from date. In default of such payment there will be an order in terms of prayer (a) of Col. 10 of the Tabular Statement and Mr. Subhasis Biswas, Advocate is appointed Receiver on a remuneration of 50 gms. p.m. for that purpose. Receiver will collect rent and pay to the applicant deducting his remuneration and other changes if any, till the claim of the applicant as ordered above is fully satisfied. There will be no order as to costs. The execution application and the amendment application are disposed of accordingly. All parties are to act on a signed xerox copy of this Dictated Order on usual undertaking.