A. N. RAY, J. ( 1 ) ONCE the facts in this case are gripped, it would be realised that there is very little left for the Court of appeal to do. ( 2 ) THE appeal is from an Order of the Company Court passed along with the judgment on the 6th of August, 2001 by the Hon'ble Mr. Justice Pinaki Chandra Ghose. ( 3 ) THE facts in brief are as follows. Details are left out for the purpose of setting out the substance in as brief a compass as possible. ( 4 ) THE four main persons involved are Tarachand Agarwal, who died on 18th March, 1995, his wife Dankha Debi, who died in 2001, their elder son Bhagirath, who was the petitioner in the Court below and the respondent there, who is his younger brother Chandra Prakash, and who is the appellant. ( 5 ) THE Company was incorporated sometime in or about 1962, at which time Tarachand was all in all there. The authorised share capital of the company numbered only 5000 units. Initially Dankha had 3010 shares, Tarachand 10 shares and the two sons 10 shares each. ( 6 ) SOMETIME after about 10/12 years, i. e. , in the mid 70s, Dankha Devi transferred about half here share-holding to her two sons and as a result thereof, although Tarachand continued to hold only 10 shares, Bhagirath had 750 more shares than his original 10 and Chandra Prakash 600 more than his original 10. ( 7 ) IN 1983 and 1984 it appears that returns were filed with the Registrar of Companies showing that Dankha had transferred 1650 of her balance 1660 shares to Bhagirathi and his group. ( 8 ) THESE 1650 shares from one large major controversy in this appeal. Bhagirathi's case is that the shares were duly transferred on consideration. On the 6th of November, 1989 Dankha filed a suit against Bhagirathi claiming cancellations of the transfer documents of these 1650 shares and alleging that she had never signed any transfer deed. ( 9 ) ON the same day an interlocutory order was passed in the suit restraining disposal of the shares by Bhagirathi and also restraining voting thereon and receipt of dividends. Bhagirath continued to suffer the order of restraint until 1995. How the restraints were lifted, we shall state thereafter. ( 9 ) ON the same day an interlocutory order was passed in the suit restraining disposal of the shares by Bhagirathi and also restraining voting thereon and receipt of dividends. Bhagirath continued to suffer the order of restraint until 1995. How the restraints were lifted, we shall state thereafter. ( 10 ) TARACHAND and Chandra Prakash, acting without doubt at that time in unison, had convened a Board Meeting dated 20th October, 1989, whereby two major things were done; (i) the Directorship of Bhagirath was purportedly cancelled, (ii) the balance unsubscribed 1960 shares of the company were all issued in favour of Tarachand and Chandra Prakash, Tarachand taking 1500 and Chandra Prakash and his group taking 460. These 1960 shares from the second large controversy in this dispute. ( 11 ) LET us dispose of this second matter because it is very simple. No written notice was given of this meeting. The first Court has opined that the meeting was held contrary to the provisions of the Companies Act and the effect of the meeting must by nullified. We are in respectful agreement; nobody can accept the story of giving of an oral notice to Bhagirath and his staying away from the fateful meeting where his interest would be greatly and adversely affected. Also the authoritative decision of the Hon'ble Supreme Court, page 238, where the Hon'ble Mr. Justice Mathew delivered the judgment, leaves no second manner of decision open to Court in this regard. ( 12 ) WE come back to the 1650 shares. Within about four months of Tarachand's death, and on 28th July, 1995 Dankha Devi's suit against Bhagirath was dismissed for non-prosecution on her own prayer. ( 13 ) ORDERS of Court are there which show that the Court had approved a change of Advocate to Dankha Devi, which changed learned Advocate effected the disposal of the suit as above. ( 14 ) THE application for reliefs was filed by Bhagirath before the Company Court on 18. 6. 1990, i. e. , five years before Tarachand's death, and five years before the withdrawal/dismissal of Dankha's suit, and also some eight months after the issuance of the 1960 shares without notice. ( 14 ) THE application for reliefs was filed by Bhagirath before the Company Court on 18. 6. 1990, i. e. , five years before Tarachand's death, and five years before the withdrawal/dismissal of Dankha's suit, and also some eight months after the issuance of the 1960 shares without notice. ( 15 ) ON the date of institution, the Company Court passed an order of status-quo, but that had not much effect, since the status then obtaining was the status with Tarachand's additional 1500 shares and Chandra Prakash's additional 460 shares. ( 16 ) IN the Company petition, which really because active only after Tarachand's death, a meeting was ordered to be held by an order dated the 8th of July, 1998, passed by the Hon'ble Mr. Justice Sujit Kumar Sinha, as his Lordship then was. An appeal was preferred from that order which was disposed of by the Court of Appeal on the 4th of August, 1998. As and by way of an interim measure Bhagirath was permitted to vote on the disputed additional shares issued without notice was also separately recorded by the learned Chairman of the meeting. ( 17 ) BY the said order dated 4. 8. 1998, the opposition raised by Chandra Prakash, his sisters and his mother, to the additional 1650 shares of Bhagirath was turned down principally on the basis that the withdrawal of the suit of Dankha, meant withdrawal of Dankha's allegations against Bhagirath, regarding the transfer of those very shares. ( 18 ) IT was said also that no steps had been taken for undoing the order of dismissal of the suit which had been passed on the 28th of July, 1995. ( 19 ) AFTER the order of 4. 8. 1998 meetings were duly held under the learned Chairman as the Appeal Court had cleared the holding of such meeting. ( 20 ) SOON thereafter Dankha made an application (sometime on or about the 2nd of September, 1998) for recalling the order of dismissal of her suit. ( 21 ) ON 2. 9. 1998, more than three years after the dismissal of the suit, the interlocutory Court passed an ex-parte order restraining exercising of voting rights in respect of the shares in question and passed orders of injunction against the concerned respondents in that regard. ( 22 ) ON 4. 6. ( 21 ) ON 2. 9. 1998, more than three years after the dismissal of the suit, the interlocutory Court passed an ex-parte order restraining exercising of voting rights in respect of the shares in question and passed orders of injunction against the concerned respondents in that regard. ( 22 ) ON 4. 6. 1998, Bhagirath's side came and objected and after hearing them the Court held that the meeting due to be held on the very next day, i. e. , 5. 9. 1998 could be held and resolutions taken, but effect would not be given thereto without leave of the Court. On the 4th of August, 1999 the application of Dankha for recall of the order dated 28th July, 1995 and for restoration of her suit was dismissed. ( 23 ) IT was remarked by the Hon'ble Judge in the judgment passed on that day that the signatures of Dankha in documents signed in 1989, when her suit was filed, and in 1995, when her suit was withdrawn, appeared to be similar, but her signatures given in 1998, in regard to the application for restoration of her suit, appeared to be different. It also appeared that Chandra Prakash himself had alleged that at that time his mother was hardly of sound mind, or able to read, speak, write or hear. ( 24 ) MR. Sen, appearing for the respondent No. 1 Bhagirath, also pointed that Bhagirath had mentioned about the withdrawal by Dankha of her suit in an affidavit affirmed by him on the 23rd of July 1996, in paragraph 7. In dealing with affidavit, which reply was filed by Chandra Prakash, on behalf of himself, his daughter and his wife, but not on behalf of his mother Dankha, he had nothing to say (on 30. 10. 1996, the date of affirmation) about Dankha's withdrawal of the suit. No surprise was expressed. No allegation was levelled. He had to wait until the order of 4. 8. 1998, only whereafter his mother filed the petition for revival of the suit. ( 25 ) THE appeal from the order dated 4. 8. 1999 was also dismissed by the Court of Appeal on the 13th of September, 1999. No surprise was expressed. No allegation was levelled. He had to wait until the order of 4. 8. 1998, only whereafter his mother filed the petition for revival of the suit. ( 25 ) THE appeal from the order dated 4. 8. 1999 was also dismissed by the Court of Appeal on the 13th of September, 1999. ( 26 ) A remark was made by the Division Bench, that the three year late application by Dankha, for revival of her suit was probably filed, by taking a que from the Division Bench judgment of 4. 8. 1998 which repeatedly placed emphasis on the fact that no application had been made by Dankha to have her suit revived, or the order of dismissal dated 28. 7. 1995 set aside. ( 27 ) AN SLP was preferred by Dankha from the Division Bench judgment of 13. 9. 1999. That special Leave Petition is not yet disposed of. During its pendency Dankha died. ( 28 ) THE problem after Dankha's death is, that her estate no longer speaks with one voice with regard to the revival of her suit. As a result of this problem, only those of Dankha, who still actively wish to have her suit revived, applied for substitution in her place, in the SLP and got themselves substituted, by an order passed by the Hon'ble Supreme Court. Needless to mention, Bhagirath was not one of these applicants; he is the main opponent of the SLP. ( 29 ) SEVERAL authorities were cited before us on various points of law, both on behalf of the appellants, by My Mr. Chatterjee on behalf of the supporting respondents, as well as by Mr. Sen. Only the basics of those authorities we deal with, for the purpose of discharging the very little task, which remains for us to do in this appeal. ( 30 ) MR. Sen contended, amongst other things, that the 1650 shares of Bhagirath were finally pronounced upon, in the Division Bench order of 4. 8. 1998. That was the order which permitted the meetings to be held, and Bhagirath to vote on the said 1650 shares. The language of the Division Bench also indicated finality of decision. Mr. Sen particularly relied on the following portion: It is true that by this finding, at least, some of the issues in 397 and 398 application are to that extent being determined. The language of the Division Bench also indicated finality of decision. Mr. Sen particularly relied on the following portion: It is true that by this finding, at least, some of the issues in 397 and 398 application are to that extent being determined. We, however, do not think that any other view is possible. . . We, however, make it clear that this will not preclude the appellant No. 2 and his group from challenging the order dated 28th July, 1995,. . . . ( 31 ) THE appellant No. 2 mentioned in the above passage was Chandra Prakash Agarwal. Dankha was also alive then, Mr. Sen relied on the case of Ram Kirpal Shukul v. Rup Kuari reported at II Ind App 37 for the purpose of showing that interlocutory orders also can bind parties finally and so far as other interlocutory stages are concerned, those practically have the same effect as res judicata. ( 32 ) IN that case one Mr. Probyn had determined in an execution proceeding that the decree under execution, on a true interpretation, had allowed mesne profits. A later decision in execution proceedings to the contrary, although affirmed up to the High Court, was upset by the Judicial Committee on the principle of orders, and not merely decrees, being binding on parties at different stages of the same proceeding. Sir Bititanes Peacock said as follows:he had as much jurisdiction, upon examining the terms of the decree, to decide that it did award mesne profits as he would have had to decide that it did not. The High Court assumed jurisdiction to decide that the decree did not award mesne profits, but, whether their construction was right or wrong, they erred in deciding that it did not, because the parties were bound by the decision of Mr. Probyn, who, whether writ or wrong, had decided that it; a decision which, not having been appealed, was final and binding upon the parties and those claiming under them. " ( 33 ) MR. Chatterjee, in answering this case submitted, that by reason of the above decision, not every litigant who suffers an adverse interlocutory order, is compelled to take the matter to the Court of Appeal, on pain of being finally precluded from ever challenging the decision given at the interlocutory stage. " ( 33 ) MR. Chatterjee, in answering this case submitted, that by reason of the above decision, not every litigant who suffers an adverse interlocutory order, is compelled to take the matter to the Court of Appeal, on pain of being finally precluded from ever challenging the decision given at the interlocutory stage. ( 34 ) HE cited in this regard the case of Satya Dhan Ghoshal reported at AIR 1960 SC 941 . It is mentioned in paragraph 13 of the said judgment, referring to the decision of the Judicial Committee in the case of Moheshur Sing, 7 Moo Ind APP 283 that:". . . the effect of the rule that at every stage of the litigant a decision not appealed from must be held to be finally decided even in respect of the Superior Courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the Higher Courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the Appeal Court at all. . . . It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case. " ( 35 ) IN the next paragraph i. e. , paragraph 14 of the judgment Their Lordships quoted from section 363 of the Code of 1859 as follows:"but if the decree be appealed against, any error, defect or irregularity in any such order affecting the merits of the case of the jurisdiction of the Court may be set forth as a ground of objection in the Memorandum of Appeal. ( 36 ) THEREAFTER their Lordships stressed the continuance of this rule through the different Codes which came into being in 1877 and 1882, but it is not necessary for us to go so much into history. ( 36 ) THEREAFTER their Lordships stressed the continuance of this rule through the different Codes which came into being in 1877 and 1882, but it is not necessary for us to go so much into history. ( 37 ) THE true legal position regarding the binding nature of interlocutory orders is, therefore, as follows: (I) Ordinarily speaking on interlocutory order will prevent the interlocutory Court from deciding otherwise upon a second interlocutory application in the same suit, in the absence of important new materials, which might be new facts of events. (ii) Unless an order is of such nature, (as in the case of Ram Kirpal Shukul, i. e. ,) such as finally to decide a matter, not bearing it open in law that a different decision be entered at a later, or a more comprehensive stage, of the same proceeding, then and in that event, the Court passing a decree or a final order can adjust the rights of the parties, notwithstanding any different adjustment ordered temporarily for interlocutory purposes i. e. , for the time being, until final disposal. (iii)an interlocutory order is ordinarily liable to be adjusted or even reversed at the time of the decree. It is not necessary to prefer an appeal from the interlocutory order so as to keep the parties' chance open of having a different decision entered when the suit is finally decided. (iv) (This is our formulation ). It does not matter how an interlocutory order is worded, whether in final terms or temporary. The nature of the proceedings and the order, amongst other circumstances, determine whether the order is liable to final adjustment, at the final hearing, or not. ( 38 ) ON an application of the above principles, it is quite clear, that though the order of 4. 8. 1998, is of the Appellate Court, and though the order did seem to proceed, in its language, somewhat finally on the adjudication of Bhagirath's rights to the 1650 shares, yet it was, it its essential nature, no more than an interlocutory order for the purpose of holding a company meeting, during the pendency of the 397/398 application. It was thus not a final order; it was not passed on an application for final disposal; it was passed on an interlocutory application made in aid of the main 397/398 petition. But this is not a matter of turning importance. It was thus not a final order; it was not passed on an application for final disposal; it was passed on an interlocutory application made in aid of the main 397/398 petition. But this is not a matter of turning importance. The matter of turning importance, is, that both the 1650 shares of Bhagirath, and the 1950 shares of Tarachand and Chandra Prakash, were still to be decided upon finally, at the final disposal of the main company petition. Accordingly, Mr. Sen's submission that Bhagirath's shares are finally determined as the order of 4. 8. 1998 is not accepted by us. That order was an interlocutory order and subject to final adjustment by us now, if necessary. ( 39 ) MR. Chatterjee's clients and Chandra Prakash lost with regard to these 1650 shares in the First Court. The reason for less was substantially the same as the reason given in the order of 4. 8. 1998. Justice Ghose felt bound by the withdrawal of Dankha of her own suit. The decision of his Lordship is, that as the suit is gone, the challenge to the 1650 shares is gone too. ( 40 ) MR. Chatterjee was at pains to submit, that in law, the withdrawal of Dankha's suit, has no more effect than this, that she could not file another suit afresh, for the same reliefs, no leave having been taken in that regard, at the time of the withdrawal or dismissal of the suit. ( 41 ) HE said, that Bhagirath maintains his company petition on the allegation that, he has upwards of 2000 shares along with his group, and this block shareholding includes the disputed 1650 shares. According to Mr. Chatterjee, his clients and Chandra Prakash are entitled to take the defence, that this allegation of Bhagirath is unsound, and if their defence succeeds, Bhagirath would have to be given relief, if at all, with regard to the 1960 shares, coupled with the finding of the Company Court, that Bhagirath owns 1650 shares less than as claimed by him. ( 42 ) IN support of his proposition, that the withdrawal or dismissal of the suit would not debar Chandra Prakash and his group, or the estate of Dankha, from challenging Bhagirath's 1650 shares, Mr. Chatterjee relied upon several cases. The first was the case of Mahanth Singh, reported at AIR 1939 Privy Council 110. ( 42 ) IN support of his proposition, that the withdrawal or dismissal of the suit would not debar Chandra Prakash and his group, or the estate of Dankha, from challenging Bhagirath's 1650 shares, Mr. Chatterjee relied upon several cases. The first was the case of Mahanth Singh, reported at AIR 1939 Privy Council 110. He placed parts of the judgment of Lord Porter. The facts in that case indicate that although the creditor had withdrawn the suit against the principal debtor, yet such withdrawal did not extinguish the liability of the guarantor. This was said in the body of the judgment:"the result, however, is not to release or discharge the debt, but merely to prevent the creditor from suing the principal debtor. " ( 43 ) THE next case was of M/s. Usha Sales, reported at AIR 1983 Delhi page 107. The suit was cited to show that a withdrawal might bar later suits, but not defences. ( 44 ) THE next case was a Division Bench decision of the Madras High Court being Periswamy's case, reported at AIR 1947 Madra 718, where it was opined that the withdrawal of a suit does not create a res judicata. The only problem that the withdrawal creates is that another suit cannot be filed. ( 45 ) THE case of Gajpat Singh reported at AIR 1985 Punjab and Haryana 135 was also cited. This lays down that dismissal ex parte, abatement or withdrawal do not involve any adjudication, and thus create not bar of res judicata. In the same line is the case of Sardar Khan reported at AIR 1937 Oudh 146 which was also relied upon the Court below. That case lays down that even if a suit is withdrawn a set off for the substance of the withdrawn suit is not barred. The learned Judge deciding that case, Ziaul Hasan, J (the case of Radhe Shyam) said that:order 23 Rule 1 Civil P. C. , applies to suits and not to defences. ( 46 ) THUS, Mr. Chatterjee submitted, the defence to Bhagirath's possession and alleged ownership of the 1650 additional shares is still available. The non-prosecution of Dankha's suit does not rob Chandra Prakash and his group of this defence in law. ( 47 ) ON facts, Mr. ( 46 ) THUS, Mr. Chatterjee submitted, the defence to Bhagirath's possession and alleged ownership of the 1650 additional shares is still available. The non-prosecution of Dankha's suit does not rob Chandra Prakash and his group of this defence in law. ( 47 ) ON facts, Mr. Chatterjee's submission was, that Bhagirath is unable to show anything in support of his case, that he acquired these shares for valuable consideration from his mother. There is no shred of paper evidence to show that he paid any money or that Dankha signed any deed. There are no amounts; there are no dates; to cap it all, there are no share scripts. Mr. Chatterjee submitted, that in these circumstances the Court can very well, and should, do substantial justice. ( 48 ) MR. Sen replied on facts. If there are no share scripts of Bhagirath, there are no share scripts of Chandra Prakash either. It so happens that the company and the shareholders have proceeded on the basis of returns filed with the Registrar of Companies only. There is no members register. Signatures, share transfer deeds, delivery of shares to the purchasers, rectification of the share register, which is to be kept in the registered office these are all foreign concepts to the company. ( 49 ) MR. Sen's submissions are quite right on facts just as Mr. Chatterjee's are also. Mr. Sen further submitted that Chandra Prakash cannot complain that there are no transfer deeds because Dankha has asked for cancellation of the deeds which were got signed by her without her knowledge by Bhagirath. Her plaint predicates the existence of the transfer deeds. Dankha is now dead. The plaint and other admittedly signed documents by her are secondary evidence. ( 50 ) IN law, Mr. Sen submitted, that Mr. Chatterjee's client's claim, as well as Chandra Prakash's claim made through Mr. Abhrajit Mitter, are no less than claims to positive relief, clothed in the disguise of defences. This is the issue which we have to decide really. This is our main little job. ( 51 ) THE legal proposition that defences are not ruled out by withdrawal of the suit is absolutely correct. That the order appealed from and even the earlier interlocutory order, i. e. , that of 4. 8. This is the issue which we have to decide really. This is our main little job. ( 51 ) THE legal proposition that defences are not ruled out by withdrawal of the suit is absolutely correct. That the order appealed from and even the earlier interlocutory order, i. e. , that of 4. 8. 1998, proceed on the basis, that the withdrawal of the suit has finished the issue of the 1650 shares, is not, with the greatest of respect, legally sound. But in our opinion, the issue of the 1650 shares cannot appropriately be called Chandra Prakash's defence in this 397/398 application. Even apart from the 1650 shares, Bhagirath and his group owns, on an admitted basis, 760 shares. Even if Bhagirath owned only 760 shares, he could have maintained a 397/398 application claiming that the issuance of the Additional 1960 shares to Tarachand and Chandra Prakash be cancelled. Parameswari Gupta's case referred to above does not require any qualification shareholding for the complainant, who challenges Board meetings convened and conducted without due notice. As such it is not necessary for Bhagirath necessarily to prove his unassailable title to the disputed 1650 shares, for success in this 397/398 application. Accordingly, any declaration by us contrary to Bhagirath's interest in regard to that block of 1650 shares, would not be an approval of a defence of Chandra Prakash and his group, but a positive ruling granting relief to Chandra Prakash as his group, putting them in capacity as claimants and petitioners, in this 397/398 matter. ( 52 ) THERE is no doubt that once a suit is withdrawn, a later suit by the same party, or parties claiming under him (her), would be barred. We have not heard arguments to this effect, that even if such a suit is barred, yet a 397/398 application to the same effect is not barred in law. We, therefore, do not have to rule on this point, even if we can treat Chandra Prakash as the petitioner on Bhagirath's petition. But we must mention, if only in passing that suit for the reliefs against Bhagirath, has not yet been finally abandoned. If the litigation proceeds in one particular way, it might be, that after a successful conclusion of the SLP, the suit originally filed by Dankha will revive, and the paries will fight it out in the suit Court. But we must mention, if only in passing that suit for the reliefs against Bhagirath, has not yet been finally abandoned. If the litigation proceeds in one particular way, it might be, that after a successful conclusion of the SLP, the suit originally filed by Dankha will revive, and the paries will fight it out in the suit Court. That method of obtaining remedy has not been abandoned. ( 53 ) THE suit not being abandoned, and the matter being a pending matter before the Supreme Court, it would not been possible for the same party, in any event, to pursue two remedies for identical reliefs, one by way of suit, and another by way of relief in a company petition. This would lead to the most undesirable possibility of a conflict of decisions, which the Court is always careful to avoid. ( 54 ) IN these circumstances, we find nothing to interfere with the ordering portion of the impugned order. The appeal is accordingly dismissed. All interim orders will stand vacated with immediate effect but the actions taken until date on the basis of such interim orders shall not be invalidated thereby. All parties and all others concerned to act on an authenticated copy of this judgment and order on the usual undertakings. Appeal dismissed j. Banerjee, J.- I agree.