JUDGMENT : Sudhir Agarwal, J. Heard Sri M.P.Srivastava, learned counsel for petitioner. None has appeared on behalf of respondents 3, 4 and 5 though the case has been called in revise and names of several counsels have been shown in the cause list as counsel for respondents. 2. This is a writ petition under Article 226 of Constitution of India whereby petitioner has prayed for issue of a writ of certiorari quashing order dated 30.09.1995 passed by VIth Additional District Judge, Kanpur Nagar in Misc. Appeal No.116 of 1985 arising from judgment and decree dated 27.4.1985 of Munsif, Kanpur Nagar on an application under Order 21 Rule 99 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C."). 3. The facts in brief giving rise to present dispute are that M/s Neelkanth Lalta Prasad (hereinafter referred to as "respondent 4") instituted Original Suit No.76 of 1963 in the Court of Munsif Lakhimpur for recovery of a sum of Rs.3,500/- from M/s Cawnpore Rolling Mills (P) Ltd. (hereinafter referred to as "respondent 5"). The suit was decreed ex-parte vide judgment and decree dated 26.11.1963. For execution of decree, respondent 4 got it transferred to Munsif (City), Kanpur and commenced Execution Case No.55 of 1968 against respondent 5. 4. Respondent 5 is a Company registered under Indian Companies Act, 1913 (hereinafter referred to as "Act, 1913") and had its registered office at 74/4, Amgerest Street, Calcutta. Even before filing of suit, winding up petition under Sections 186, 397 and 398 of of Act, 1913 was filed in Calcutta High Court in 1962, which was registered as Company Petition Suit No.110 of 1962. Vide order dated 20.12.1963, Calcutta High Court appointed one Bhagwan Das Jaiswal as Administrator of respondent 5-Company for a period of five years and laid down certain terms and conditions regulating powers and duties of Administrator. One of such power included power to sell property of Company to liquidate debts of creditors. The said Administrator, Sri Bhagwan Das Jaiswal, executed sale deed dated 10.9.1969 of plot no.61, forming part of premises no.83/258, situated in Mohalla Juhi Khurd, Kanpur City, transferring 355.56 square yards, for a consideration of Rs.19555=80, to petitioner. Possession was also given to her. Petitioner constructed a boundary wall and fixed an iron gate showing her actual and symbolic possession over the said property. 5. Possession was also given to her. Petitioner constructed a boundary wall and fixed an iron gate showing her actual and symbolic possession over the said property. 5. Subsequently, pursuant to an order passed in Execution proceeding, it appears that 12 plots bearing nos. 58, 57, 55, 87, 88, 81, 59, 52, 56, 60, 61 and 59 situated in Mohalla Juhi Khurd Kanpur city were auctioned and sold on 16.01.1971 for a sum of Rs.10,200/- and the said auction was finalized in favour of respondent 3, Mohd. Ali (hereinafter referred to as "Auction Purchaser"). 6. An Advocate Commissioner was appointed by Court to give possession of all the plots to Auction Purchaser, on 20.5.1979. 7. Since petitioner had no notice, information or opportunity of hearing in this matter i.e. execution case, consequently she filed an application under Order XXI Rule 99 C.P.C. in Execution Case no.55 of 1968 and it was registered as Misc. Case No.357/74/79. 8. The application was opposed by Auction Purchaser as also respondent 4, Decree Holder. In support of petitioner's case, Sri Laxmi Kant Shukla was examined while Mohd. Ali himself examined as witness in support of his claim. 9. Execution Court formulated five issues as under : ^^1- D;k dkuiqj jksfyax feYl ds fo:) lwjt izlkn xqIrk dks eSusftax MkbZjsDVj crkrs gq, tks fMxzh izkIr dh x;h gS og oS/k gS o dEiuh ds Åij ck/;dkjh gS\ 1. Whether the decree obtained against Kanpur Rolling Mills stating Suraj Prasad Gupta to be director is legal and binding upon the company? 2- D;k izkfFkZuh ds i{k esa dh x;h fodz;i= /kkjk 64 nhokuh izfdz;k lafgrk ls ckf/kr gS\ 2. Whether the sale-deed executed in favour of the applicant is barred by Section 64 of Civil Procedure Code? 3- D;k izkfFkZuh fookfnr Hkwfe ds dCts esa vius vf/kdkj esa Fkh ;k dEiuh ds fy, dCts esa Fkh o mls nkf[ky fd;k x;k gS\ 3. Whether the applicant was in possession of the disputed land as a matter of her right or was in possession on behalf of the company and has been given occupancy over it? 4- D;k fMxzh fu"iknu esa fd;k x;k izfri{kh ds gd esa fodz;i= O;FkZ gS\ ;fn gka rks mldk izHkko\ 4. Whether the sale-deed done in favour of the defendant in execution of the decree is a nullity? If so, its effect? 4- D;k fMxzh fu"iknu esa fd;k x;k izfri{kh ds gd esa fodz;i= O;FkZ gS\ ;fn gka rks mldk izHkko\ 4. Whether the sale-deed done in favour of the defendant in execution of the decree is a nullity? If so, its effect? 5- D;k izkfFkZuh fookfnr Hkwfe ij iqu% dCtk ikus dh vf/kdkfj.kh gS\** 5. Whether the applicant is entitled to get possession again on the disputed land." (English Translation by Court) 10. Considering issue 1, Execution Court held that suit was not properly filed by impleading proper parties as defendant, inasmuch as, respondent 5 was not a partnership Firm wherein Sri Suraj Prasad Gupta was said to be partner and instead it was a Private Limited Company registered under Act, 1913. There was nothing on record to show that notice was served at registered office of respondent 5, and therefore, decree passed cannot said to be valid in law, particularly when Sri N.N.Benerjee was Managing Director and in such circumstances attachment of property of Company, pursuant to decree, which was not valid, is also bad in law and not binding upon respondent 5. Then coming to issue 2, Execution Court held that Administrator of respondent 5 was appointed on 02.04.1963, therefore, Original Suit could have been filed by impleading Company through Administrator but that was not done. Therefore, neither decree nor proceedings of execution are binding on Company. The sale deed executed by Administrator of respondent 5 is valid since he possesses such power pursuant to order passed by Calcutta High Court in winding up petition and Section 64 C.P.C. is not applicable in this case. Transfer of immovable property by Administrator to petitioner is not barred by Section 64 C.P.C. Issue 3 was also answered in favour of petitioner holding that at the time of eviction/dispossession, petitioner was in possession of disputed property and wrongfully dispossessed. Issue 4 was decided holding suit was not filed by Decree Holder in accordance with law, therefore, the said decree is inoperative and ineffective against respondent 5 and pursuant to said decree, attachment of property or sale by Execution Court is also inoperative and ineffective. Ultimately, issue 5 was answered in favour of petitioner holding that she is entitled for delivery of possession of disputed plot no.61. Ultimately, issue 5 was answered in favour of petitioner holding that she is entitled for delivery of possession of disputed plot no.61. Consequently, Execution Court vide judgment dated 27.4.1985 allowed petitioner's application filed under Order XXI, Rule 99 C.P.C. and directed to restore possession over plot no.61 to petitioner. 11. There against Auction Purchaser respondent 3, preferred Misc. Appeal No.116 of 1985, which has been allowed by VIth Additional District Judge, Kanpur Nagar (hereinafter referred to as "LAC") vide judgment dated 30.9.1995, which has been challenged in the present writ petition. 12. Lac has reversed finding of Execution Court that decree was void or inoperative since defendant was not properly arrayed in Original Suit No.76 of 1963 and it has taken the view that Company did not take any action for setting aside ex-parte decree by filing application under Order IX, Rule 13 C.P.C. Further, Order XXIX, Rule 2 C.P.C. contemplates service on authorized representative of a Company and Sri Suraj Prasad was an officer of Company, who received summons, therefore, it cannot be said that Company was not properly impleaded or there was non compliance of rules regarding service of summons upon the Company. It has held that at the time of dispossession, petitioner was not in possession but disputed property was in possession of Ram Prasad and Jagdish Prasad, who were dispossessed, therefore, not only ex parte decree was valid but order of attachment and auction was also valid, hence, it allowed appeal and set aside order dated 27.4.1985 passed by Execution Court. 13. Counsel for petitioner submitted that LAC has recorded perverse findings with regard to valid impleadment of Company and has illegally reversed findings of Trial Court in this regard. With regard to possession of property in dispute, construction raised by petitioner was supported by documentary evidence, still it has been misread by Court below, therefore, impugned order of LAC is liable to be set aside. 14. The first question up for consideration in this petition, in my view is, "whether ex parte decree dated 26.11.1963 passed in Original Suit No.76 of 1963 is valid and binding upon respondent 5?" 15. It is not in dispute that respondent 5, M/s Cawnpore Rolling Mills (P) Ltd. is/was a Company incorporated under Act, 1913. It is also evident from record that registered office of respondent 5 was at 74/4, Amgerest Street, Calcutta. It is not in dispute that respondent 5, M/s Cawnpore Rolling Mills (P) Ltd. is/was a Company incorporated under Act, 1913. It is also evident from record that registered office of respondent 5 was at 74/4, Amgerest Street, Calcutta. Original Suit No.76 of 1963 was filed by arraying respondent 5 as Kanpur Rolling Mill (P) Ltd. through Lala Suraj Prasad Managing Director, Rail Bazar, Kanpur. This fact is also admitted by LAC that even Suraj Prasad was not Director of Company but an officer, who was served notice. Relevant findings of LAC read as under : ^^vkns'k 29 fu;e 2 esa iz'kkld 'kCn ds ckjs esa dksbZ mYys[k ugha gS fuxe ds lfpo ;k fdlh funs'kd ;k iz/kku vf/kdkjh dk mYys[k gSA vr% lwjt izlkn iz'kkld ugha gksrs gq, Hkh dEiuh ds iz/kku vf/kdkjh Fks vkSj muds ek/;e ls dEiuh ds eq[;ky; ij Hksth xbZ lEeu dk rkehyk i;kZIr gSA** "Order 29 Rule 2 does not mention the word 'Administrator'; rather, it mentions Secretary or any Director or Chief Officer of the Corporation. Hence, Suraj Prasad despite not being the Administrator, was the Chief Officer of the company and service of the summon sent to the headquarters of the company through him is sufficient." (English Translation by Court) 16. This finding, I find is perverse, inasmuch as, registered office of Company was at Calcutta, which was not mentioned in plaint nor Suraj Prasad was shown as Principal Officer of Company but he was arrayed as Managing Director of Company. What was actual position of Suraj Prasad is not based on record. Trial Court's order clearly shows that Managing Director of Company was Sri N.N.Benerjee and subsequently in winding up petition, Board of Directors were superseded by appointment of Administrator, Sri Bhagwan Das Jaiswal, vide Calcutta High Court's order dated 02.04.1963. 17. In this regard, I may also reproduce Order XXIX Rule 2 C.P.C., which reads as under : "2. Service on corporation.- Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served- (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business." 18. Order XXIX, Rule 1(a) contemplates service of summons upon Secretary or any Director of such Corporation or other Principal Officer of Corporation. Plaintiff himself wrongly mentioned Sri Suraj Prasad as Managing Director in the plaint though he was not so. Once Suraj Prasad was not Managing Director and his position was wrongly shown in plaint, it could not have been said that by serving notice upon Suraj Prasad, there was a valid service upon respondent 5 and/or service is sufficient, in compliance of Order XXIX, Rule 2 C.P.C. 19. Second mode of service provided under Order XXIX, Rule 2(b) is by leaving summons or sending by post to Corporation at its registered office. The alternative place of business of Corporation for the purpose of service of notice will apply only when there is no registered office of Company. In the present case, Company had its registered office and therefore, unless Company's registered office is given in the plaint and Company is properly described and arrayed, it cannot be said that there was compliance of Order XXIX, Rule 2 C.P.C. particularly when admittedly summons were not sent at registered office of Company. 20. Moreover, in a winding up petition, when an order is passed by High Court and Administrator is appointed, no suit could have proceeded thereafter, against such a Company, in respect of any debt, except with the leave of Court, as provided in Section 269 of Act, 1913, which reads as under : "269. Suits stayed on winding up order.- Where an order has been made for winding up a company registered in pursuance of this Part, no suit or other legal proceeding shall be commenced or proceeded with against the company or any contributory of the company in respect of any debt of the company, except by leave of the Court, and subject to such terms as the Court may impose." (emphasis added) 21. A copy of order of Calcutta High Court is Annexure 1, which shows that a Winding Up Petition was filed by one Madan Lal Dinger vide application dated 22.05.1962 whereupon vide order dated 12.06.1962 Calcutta High Court appointed Receiver, who took over possession of entire assets and properties of Company. Thereafter, further order was passed on 02.04.1963 appointing Sri Bhagwan Das Jaiswal as Administrator of Company by superseding Board of Directors. Thereafter, further order was passed on 02.04.1963 appointing Sri Bhagwan Das Jaiswal as Administrator of Company by superseding Board of Directors. Administrator was appointed for a period of five years or until all creditors are paid off in full, which ever is earlier. The order dated 02.04.1963 passed by Calcutta High Court also directed Administrator to pay a sum of Rs.4,000/- to applicant Madan Lal Dhingar and Suraj Prasad Gupta. In the entire order, we do not find that Suraj Prasad Gupta was shown either as a Director or Managing Director or Principal Officer of Company. 22. When assets of Company were taken over by Official Liquidator and thereafter Administrator was appointed, Company stood represented through Administrator and not by Board of Director. As per Section 168 of Act, 1913, winding up of a Company is deemed to commence at the time of presentation of petition for winding up, which was presented in Calcutta High Court in 1962. 23. Section 171 of Act, 1913 also provides, that, when a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against company except by leave of the Court. The said sections read as under: "168. Commencement of winding up by Court.- A winding up of a company by the Court shall be deemed to commence at the time of the presentation fo the petition for the winding up." "171. Suits stayed on winding up order.- When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose." (emphasis added) 24. In view of aforesaid legal provisions and also considering the fact that Company was not arrayed before Trial Court in Original suit through any Competent Authority and no service of notice was effected in terms of Order XXIX, Rule 2 C.P.C., it cannot be said that ex parte decree dated 26.11.1963 was binding upon respondent 5. Even otherwise, suit was barred by Section 171 read with 168 of Act, 1913 and therefore also aforesaid decree was a nullity. LAC in taking otherwise view has committed manifest error and its order to this effect cannot be sustained. 25. Even otherwise, suit was barred by Section 171 read with 168 of Act, 1913 and therefore also aforesaid decree was a nullity. LAC in taking otherwise view has committed manifest error and its order to this effect cannot be sustained. 25. Now coming to second question about possession, admittedly, it is not disputed that property in dispute was purchased by petitioner from Administrator, appointed by Calcutta High Court, who was given power to sell Company's property. Attachment of property by order of High Court in pending winding up company petition could not have been set at naught by Civil Court by virtue of attachment order passed in an ex parte decree since an order passed by Superior Court i.e. High Court could not have been nullified by a Court, lower in hierarchy, when superior Court was well within its jurisdiction, territorial as well as the subject matter in passing order taking possession of entire property of Company in winding up petition. 26. Further, Commissioner's report also shows existence of construction which allegedly raised by petitioner and mere fact that on the spot, when dispossession took place, some other person was found present, does not mean that petitioner, who was valid owner of property in dispute, was not in possession of property. Owner is always deemed in possession of property even if physically not present on the site. Therefore, even second question is answered in favour of petitioner. 27. In the result, writ petition is allowed. Impugned order dated order dated 30.09.1995 passed by LAC in Misc. Appeal No.116 of 1985 is hereby set aside and order of Execution Court dated 27.4.1985 is hereby restored and confirmed.