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Case Number

Appeals Nos. 170-72 of 1979 and 335(A) of 1976

Advocates

S.B.Mukherjee
Aninda Mitra

Judges

Amarendra Nath Sen, C.J
Murari Mohan Dutt, J.

Acts

Companies (Court) Rules, 1959, as prescribed by r. 84 of the said Rules. Rule 84
cl. (f) of s. 13(1) of the West Bengal Premises Tenancy Act, 1956,
West Bengal Premises Tenancy (Second Amendment) Act, 1969.
s. 13(2) of the West Bengal Premises Tenancy Act, 1956,
s. 16 of the West Bengal Premises Tenancy Act, 1956.
s. 14(1)(g) of the Delhi Rent Control Act, 1958,
section 394(2) of the Companies Act, 1956,
WEST BENGAL PREMISES TENANCY ACT 1956
s. 394(2) of the Companies Act, 1956,
s. 394 of the Companies Act, 1956,
s. 559 of the Companies Act, 1956,
s. 394(2) of the Companies Act

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Smart Summary

Structured Summary of the Opinion (Dutta, J.)

Factual and Procedural Background

The dispute concerns premises No. 81, Netaji Subhas Road, Calcutta. Binani Properties P. Ltd. (the original decree-holder) obtained a decree for eviction against the appellants (tenant and sub-tenants) on 10 August 1966 in Suit No. 800 of 1959, on grounds of default in rent and reasonable requirement for building and rebuilding. That decree was affirmed on appeal on 2 May 1968; applications for leave and special leave to the Supreme Court were dismissed later in 1968. The decree was placed in execution on 10 October 1969.

During execution proceedings, an amalgamation scheme was sanctioned by the company court on 17 September 1970 under s. 394 of the Companies Act, 1956, transferring Binani Properties P. Ltd.'s assets to Binani Investment Co. P. Ltd. The disputed property was initially omitted from the schedule of that order; a rectification application led to inclusion of the property by an order dated 10 April 1973. The tenant’s application to set aside that rectification was dismissed on 20 July 1973.

Subsequently, Binani Investment Co. P. Ltd. was amalgamated with Metal Distributors Ltd. by the Bombay High Court (order dated 21 December 1975, w.e.f. 1 January 1975). The executing court allowed Metal Distributors Ltd. to continue the execution proceedings (an order dated 6 February 1970 (sic) by S.C. Deb J., as reflected in the record). Various objections by the judgment-debtors were overruled by S.K. Roy Chowdhury J. by a judgment dated 18 April 1979, directing execution and grant of police assistance. The tenant and sub-tenants appealed from that order; these appeals are the subject of this opinion.

Legal Issues Presented

Whether the transferee (Metal Distributors Ltd.) was required, as a precondition for executing the decree, to have its name substituted in the tabular statement under Order 21, Rule 16 CPC, and whether non-compliance with that rule prevented execution.
Whether the decree in favour of Binani Properties P. Ltd. was transferred to the transferee(s) by the orders of amalgamation under s. 394 of the Companies Act, 1956, particularly when the disputed property was omitted from the schedule and later included by rectification.
Whether a person claiming under the decree-holder can continue pending execution proceedings under section 146 of the Code of Civil Procedure (CPC) without formal substitution, and the scope of that provision.
Whether the order of S.C. Deb J. dated 6 February 1970 (sic) granting leave to the respondent to continue execution was valid if, as argued, no execution application was pending at that time, and whether the phrase “without prejudice to the rights and contentions of the parties” made that leave merely tentative.
Whether omission of the disputed property from the schedule caused the property to vest in the State by escheat/bona vacantia, and if rectification after dissolution (including the effect of s. 559 Companies Act, 1956) could restore the transfer retrospectively.
Whether the execution petition was maintainable for lack of an affidavit of competency where a company is the decree-holder.
Whether the decree became a nullity after successive amalgamations, particularly in relation to the ground of reasonable requirement for building and rebuilding.
Whether the decree could be executed against a sub-tenant (P. Mullick & Co.) given provisions of the West Bengal Premises Tenancy Act, 1956.
Whether the executing court rightly directed grant of police help under Order 21, Rule 97 CPC.

Arguments of the Parties

Appellants' Arguments

The respondent (Metal Distributors Ltd.) had not complied with Order 21, Rule 16 CPC — there was no formal substitution of the transferee's name in the tabular statement — therefore it could not execute the decree.
The decree was not transferred to the respondent; only property title may have passed; execution rights remain with the original decree-holder until formal transfer/substitution.
The order of S.C. Deb J. (6 Feb 1970 (sic)) was invalid because, after the appeal court set aside an earlier execution order, no execution application was pending and hence Deb J. had no authority to grant leave to continue execution.
The phrase “without prejudice to the rights and contentions of the parties” made the leave tentative and not a recognition of a final right to continue execution (relying on principles explained in Superintendent (Tech.-I) Central Excise v. Pratap Rai).
The disputed property was omitted from the schedule to the amalgamation order; Binani Properties stood dissolved and the property vested in the State (bona vacantia/escheat). The rectification should not have been allowed, and in any event s. 559 barred reopening after two years.
The execution petition lacked the requisite affidavit of competency where a company is the decree-holder, rendering the petition not maintainable.
The decree had become a nullity after amalgamations because the ground of reasonable requirement for building and rebuilding was personal to the original decree-holder and could not be availed of by transferees.
The decree could not be executed against defendant No.5 (P. Mullick & Co.), a sub-tenant who had given notice under s. 16 of the West Bengal Premises Tenancy Act, because of statutory restrictions (s. 13(2) of the Act).
The direction to grant police help was improper unless Order 21, Rule 97 CPC had been complied with.

Respondent's Arguments

The respondent, as transferee and person claiming under the original decree-holder, is entitled to continue pending execution under section 146 CPC; substitution is a formal matter and not a precondition to continuation.
The sanction order under s. 394 and Form No. 42 (para.1) — which transfers “all the property, rights and powers” and includes the phrase “and all other property” — covered the disputed property even if it was omitted from the schedule; rectification was a clarification of that order.
The appeal court's order granting liberty to the respondent to take steps to continue execution meant the execution application was not finally disposed of; Deb J.'s order granting leave was therefore valid and included directions for affidavits, signalling finality as to the right to continue execution.
The inclusion of the disputed property by rectification operated retrospectively as clarification; s. 559 did not bar such rectification in the circumstances because it was a bona fide omission and the scheme clearly intended transfer of all assets.
Order 29, Rule 1 CPC permits a company's pleadings to be verified by an officer capable of deposing to the facts; affidavits of competency had been filed and were sufficient.
The decree remained valid after amalgamation; the executing court cannot go behind a final decree and relitigate merits such as “requirement” once the decree is final.
Police assistance was appropriate because the bailiff had been resisted when attempting to effect delivery of possession.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Case
Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394	Section 146 CPC allows a person claiming under another to be brought on record and to continue proceedings already started by that person (right to continue an appeal / proceeding).	The court relied on this decision to hold that a transferee claiming under the decree-holder may continue pending execution under s.146; continuation is maintainable though substitution may be formal.
Zila Singh v. Hazari, (1979) 3 SCC 265 : AIR 1979 SC 1066	Reaffirmation of Saila Bala Dassi principle that right to continue proceedings carries with it right to be brought on record under s.146 CPC.	The court cited it to reinforce that continuation of pending execution by a person claiming under the original decree-holder is permissible under s.146.
Venkatachalam Chetti v. Ramaswamy Servai, AIR 1932 Mad 73 (Full Bench)	Held that a legal representative of a decree-holder dying during execution can be substituted and allowed to continue execution; not necessary to file fresh execution application.	Appellants relied on this authority to argue substitution is essential; the court distinguished and treated substitution as formal/implied rather than a strict prerequisite to continuation under s.146.
Annada Prasad Mitra v. Sushil Kumar Mandal, AIR 1942 Cal 390	Observation that the right to continue proceedings presupposes a right to be substituted and that an application to carry on proceedings includes an application for substitution.	The court invoked Sen J.'s observation to support its view that an application to continue execution implies a prayer for substitution; substitution can be effected formally later.
Bajirao Domaji Shreerang v. Kashirao Ajabrao Deshmukh, AIR 1978 Bom 350	Held that transferee of a decree cannot execute it until his name is substituted in place of the original decree-holder.	Appellants cited it; the court noted the decision but disagreed that substitution was an absolute precondition to continue execution under s.146 in the present circumstances.
Radhakisan v. Daudas, AIR 1935 Nag 230	Similar proposition that transferee cannot execute decree until substituted.	Relied upon by appellants; court rejected the contention that absence of substitution invalidated continuance in this case.
New Central Jute Mills Co. Ltd. v. River Steam Navigation Co. Ltd., [1959] 29 Comp Cas 357 : AIR 1959 Cal 352	Observation that when a transferee is authorised by an amalgamation order to continue pending proceedings, no further act is required to continue them.	The court found support in this authority for the respondent's contention that orders under s.394 authorising continuation of proceedings suffice to permit the transferee to proceed.
Superintendent (Tech.-I) Central Excise v. Pratap Rai, (1978) 3 SCC 113 : AIR 1978 SC 1244	Explains the effect of the words “without prejudice” — that such an order normally indicates no decision on merits and leaves open fresh proceedings.	The court distinguished the present facts: the order granting leave to continue execution, although “without prejudice”, was intended to preserve parties' substantive objections while finally permitting the respondent to proceed; directions for affidavits supported finality of leave.
Peirce Leslie & Co. Ltd. v. Miss Violet Ouchterlony Wapshare, [1969] 39 Comp Cas 808 : AIR 1969 SC 843	Holding that property of a dissolved corporation may pass to the government by escheat or as bona vacantia.	Cited by appellants to argue escheat; the court held the decision inapplicable because here there was an amalgamation with a transferee-company that stepped into the shoes of the transferor, so escheat did not arise.
Narendra Bahadur Tandon v. Shankar Lal, (1980) 2 SCC 253 : AIR 1980 SC 575	Similar rule on bona vacantia / escheat following dissolution of a corporation.	Cited by appellants; the court found it inapplicable for the same reason noted in the Peirce Leslie row (amalgamation / transferee present).
Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, (1973) 2 SCC 40 : AIR 1972 SC 1371	Executing court can construe a decree in the light of judgment or pleadings if the decree is vague or inconsistent with judgment.	The court noted the principle but held it was inapplicable here because the decree was clear; executing court cannot go behind a clear final decree to re-adjudicate substantive grounds.
Shama Banu v. Jagdish Parshad, AIR 1975 Delhi 164	Where the landlord sold the property during an ongoing proceeding based on bona fide requirement, the new owner could not claim the benefit of the previous landlord's personal requirement.	Appellants relied on it; the court distinguished the case because there the transfer occurred before a final decree; here the decree was final before transfer so the transferee could execute it.
Phool Rani v. Naubat Rai Ahluwalia, (1973) 1 SCC 688 : AIR 1973 SC 2110	Held the requirement of a landlord was personal and perished with the plaintiff (later expressly overruled).	Noted by the court; the court observed Phool Rani had been overruled by Shantilal Thakordas and therefore did not support appellants' position.
Shantilal Thakordas v. Chimanlal Maganlal Telwala, (1976) 4 SCC 417 : AIR 1976 SC 2358	Superseded Phool Rani and altered the approach to whether a transferee may avail of the predecessor's grounds (as discussed in the opinion).	The court relied on the effect of this later authority in distinguishing Shama Banu and Phool Rani and in holding that a final decree can be executed by a transferee.

Court's Reasoning and Analysis

Preliminary observation on transfer of decree vs. transfer of property

The court first examined whether the decree itself had been transferred to Metal Distributors Ltd. It noted that the amalgamation orders and the scheme did not expressly mention the decree for possession; accordingly it was difficult to hold that the decree had been transferred. The court proceeded, however, on the assumption (for argument) that the disputed property had been transferred to the respondent even if the decree was not formally transferred.

Continuation under section 146 CPC and substitution formalities

The court held that a person who acquires title to the property and claims under the original decree-holder may continue pending execution proceedings under s.146 CPC. The court relied on Saila Bala Dassi and Zila Singh to support that the right to initiate a proceeding carries with it the right to continue a proceeding already initiated by the person under whom the applicant claims. The court rejected the strict argument that Order 21, Rule 16 CPC must be strictly complied with by way of prior substitution before continuation: substitution, the court reasoned, is a formal matter which can be effected later and is implied in an application to continue proceedings (citing the observation in Annada Prasad Mitra).

Effect of amalgamation orders and omission from schedule

The court analysed Form No. 42 (rule-prescribed form for orders under s. 394(2)) and emphasised the phrase in the operative paragraph transferring “all the property, rights and powers ... and, accordingly, the same shall pursuant to section 394(2) ... be transferred to and vest in the transferee-company ...” together with the expression “and all other property.” Given that the scheme of amalgamation expressly provided that the entire undertaking (including all properties movable and immovable) was to be transferred, the court concluded that an omission of a specific property from the schedule did not necessarily exclude it from transfer where the scheme was of the entire undertaking. Thus, even though the disputed property was not mentioned in the schedule, the court held it was covered by the transfer order.

Rectification and retrospective effect

The court considered whether rectification of the amalgamation order (to include the disputed property) could be given retrospective effect. It held that where a rectification only clarifies an order and does not change its substance, the clarification operates from the date of the original order. The court found a bona fide mistake in the omission (supported by evidence such as valuation in balance-sheets) and treated the April 1973 rectification as a clarification that took effect from 17 September 1970. Consequently, escheat/bona vacantia did not arise and s. 559 did not bar the rectification in these circumstances.

Validity of Deb J.'s order and scope of “without prejudice”

The court rejected the contention that Deb J.'s order of 6 February 1970 (sic) was void because no execution application was pending. The appeal court's order setting aside an earlier order did not dismiss the execution application; rather it granted liberty to the respondent to continue execution. Further, the court interpreted the phrase “without prejudice to the rights and contentions of the parties” as preserving parties' rights on merits while granting final leave to continue execution; Deb J.'s directions for affidavits indicated that the leave was not merely tentative.

Affidavit of competency and maintainability

The court examined whether an affidavit of competency is required where a company is a decree-holder. It noted Order 29, Rule 1 CPC permits verification by a company's secretary, director, or principal officer and found that an affidavit of competency had in fact been filed (e.g., by a director on 10 October 1969). Accordingly the execution petition was maintainable.

Whether decree became a nullity after amalgamation

The court rejected the contention that the decree became a nullity after amalgamation. It reiterated that the executing court cannot go behind a clear final decree; while the West Bengal Premises Tenancy Act imposes obligations where a decree is for building/rebuilding, the mere fact of subsequent transfer of property does not render the decree void.

Execution against sub-tenant P. Mullick & Co.

The court noted the decree was passed on 10 August 1966, prior to the 1969 amendment which split clause (f) of s.13(1) into separate grounds. The unamended clause (f) then contained both grounds (reasonable requirement for building and rebuilding and personal occupation) so the decree satisfied requirements applicable both before and after amendment; hence the decree is executable against P. Mullick & Co.

Police assistance

The court found the direction to grant police assistance reasonable because prior attempts to effect delivery were resisted by judgment-debtors, and an earlier direction for police help had been given on 21 November 1968.

Administrative/formal direction

The court recommended amending the tabular statement to substitute Metal Distributors Ltd. in place of Binani Properties P. Ltd. to obviate future difficulties.

Holding and Implications

Holding: The appellate court affirmed the judgment and order of S.K. Roy Chowdhury J. (dated 18 April 1979) and dismissed these appeals. The court held that Metal Distributors Ltd., as claimant under the original decree-holder and as transferee of the property under the amalgamation orders (and of the clarified order post-rectification), was entitled to proceed with execution.

Direct consequences and practical implications:

The respondent, Metal Distributors Ltd., is entitled to continue and prosecute the pending execution proceedings initiated by Binani Properties P. Ltd.
The tabular statement should be amended to delete Binani Properties P. Ltd. and substitute Metal Distributors Ltd. to avoid future procedural difficulties.
The rectification of the amalgamation order (to include the disputed property) was valid and treated as clarification effective from the original date of the amalgamation order; the property did not vest in the State by escheat in the circumstances of this case.
The execution petition was maintainable (affidavit(s) of competency were on record) and police assistance for effecting possession was properly directed given prior resistance.
No order for costs was made in any of the appeals.

Broader legal implications: The opinion applied settled principles (notably under s.146 CPC and s.394 Companies Act) and relied on earlier authorities to resolve points of procedural continuation after transfer by amalgamation. The text does not assert the creation of a new legal precedent; it applies established authorities to the facts before it and emphasizes that substitution in the tabular statement is formal/administrative and need not impede continuation where a transferee is authorised to proceed and has shown title.

End of summary — based exclusively on the text of the provided opinion.

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L. Mullick And Co. And Others v. Binani Properties P. Ltd. And Others

Dutta, J.:— These appeals have been preferred by the tenant and the???sub-tenants of the disputed property, being premises No. 81, Netaji Subhas???Road, Calcutta, and they arise out of a proceeding for execution.

2. On August 10, 1966, Binani Properties P. Ltd., since dissolved, obtain-???d a decree for eviction of the appellant from the disputed property on the???grounds of default in payment of rent and reasonable requirement for???building and rebuilding, in Suit No. 800 of 1959 filed in this court. The???said decree was affirmed in Appeal No. 226 of 1966 on May 2, 1968. An???pplication for leave to appeal to the Supreme Court was dismissed on???july 22, 1968, and an application for special leave to the Supreme Court???was also dismissed on November 4, 1968. The decree-holder, Binani Pro???perties P. Ltd., put the said decree into execution on October 10, 1969.???During the pendency of the said execution case, the company court by an???order dated September 17, 1970, sanctioned a scheme of amalgamation,???of Binani Properties P. Ltd., the decree-holder, with Binani Investment???o. P. Ltd., and ordered for the transfer of the entire assets and proper???ties of the Binani Properties P. Ltd. to Binani Investment Co. P. Ltd.???nder s. 394 of the Companies Act, 1956. It was further ordered that the???atter company, that is, the transferee-company, would be entitled to con???inue all pending proceedings initiated by or in the name of Binani Properties P. Ltd. It was discovered by the Binani Investment Co. P. Ltd., with which the original decree-holder, Binani Properties P. Ltd., was amalgamated, that through mistake the disputed property, being the said premises No. 81, Netaji Subhas Road, Calcutta, was omitted to be included in the schedule of the order dated September 17, 1970, sanctioning the scheme of amalgamation. An application for rectification was moved and by an order dated April 10, 1973, the order of amalgamation was rectified by including the disputed property in the schedule of the said order. The application of the tenant-judgment-debtor praying for setting aside of the said order of rectification was dismissed on July 20, 1970. Thereafter, it appears, the said Binani Investment Co. P. Ltd. was amalgamated with another company, namely, the respondent, the Metal Distributors Limited, by an order dated December 21, 1975, of the Bombay High Court under s. 394 of the Companies Act, 1956, w.e.f January 1, 1975. At the time the said order of amalgamation was made by the Bombay High Court, an appeal was pending in this court preferred by the tenant-judgment-debtor against the order of execution dated November 20, 1970, made by S.C Ghose J. on the application of the original decree-holder, Binani Properties P. Ltd. In the said appeal, the Metal Distributors Ltd. was added as a party. The said appeal was allowed by the appeal court by its order dated November 20, 1970 (sic). The appeal court set aside the order of S.C Ghose J. dated November 20, 1970, and granted liberty to the Metal Distributors Ltd. to take steps for continuing the execution proceedings filed by the original decree-holder, Binani Properties P. Ltd., by substitution or otherwise. Thereafter, in terms of the order of the appeal court which was affirmed by the Supreme Court, the Metal Distributors Ltd. made an application before the executing court praying for continuing the execution proceedings. On February 6, 1970 (sic), S.C Deb J. allowed the said application and granted leave to the Metal Distributors Ltd. to continue the execution proceedings without prejudice to the rights and contentions of the parties. The learned judge also gave directions for the filing of affidavits.

3. The judgment-debtors raised various objections to the execution of the decree, particularly at the instance of the Metal Distributors Ltd. All the said objections were overruled by S.K Roy Chowdhury J. by his judgment dated April 18, 1979. The learned judge by his said judgment directed execution of the decree in terms of col. (10) of the tabular statement dated October 10, 1969, and also directed the grant of police help for the purpose of recovery of possession of the disputed property. Hence these appeals.

4. The first point that has been urged by Mr. Aninda Mitra, learned counsel appearing on behalf of the appellants, is that the transferee of the decree, namely, the respondent, Metal Distributors Ltd., not having followed and complied with the provisions of 0. 21, r. 16 of the CPC, the respondent is not entitled to execute the decree for possession. In elaborating the point, the learned counsel submits that the right to execute a decree is a statutory right, and only the decree-holder can execute the decree, even after the transfer of the same and until and unless the name of the transferee is brought on the record as the decree-holder in accordance with the provisions of 0. 21, r. 16. It is contended that the said provision also applies to a pending execution, and if there be a transfer of the decree, the transferee may continue the execution, provided his name is brought on the record by substitution in place of the name of the transferor in the tabular statement. It is submitted that in the application under 0. 21, r. 16, besides other prayers, there must be a prayer for substitution of the name of the transferee in place of the name of the decree-holder in the tabular statement. It is pointed out that as there has been no order for substitution of the respondent's name in the tabular statement, a mere permission to continue the executionproceedings granted in favour of the respondent, Metal Distributors Ltd., will not enable the respondent to execute the decree or proceed with the execution initiated by the decree-holder, Binani Properties P. Ltd.

5. As to the above contentions of the appellants, the first question that requires consideration is whether there has been a transfer of the decree for possession in favour of the respondent, the Metal Distributors Ltd. The first order of amalgamation made by this court does not mention the decree, nor is there any such mention in the scheme of amalgamation. Similarly, there is no mention of the decree for possession in the order of amalgamation of the Bombay High Court. So it is difficult to hold that the decree for possession has been transferred in favour of the respondent. One of the contentions of the appellants in these appeals is that there has been no transfer of the disputed property, being premises No. 81, Netaji Subhas Road, Calcutta, under the said order of amalgamation of this court, and that the disputed property had vested in the State of West Bengal by escheat. This contention will be considered later. But we may, for the time being, proceed on the assumption that under the orders of amalgamation, the disputed property has been transferred to the respondent. In other words, while the respondent became the owner of the disputed property, the decree was not transferred to it. Therefore, as there was no transfer of the decree by assignment or by operation of law, the provision of 0. 21, r. 16 is not, on the face of it, applicable.

6. The respondent, the Metal Distributors Ltd., having acquired title to the disputed property may continue the pending execution against the appellants as a person claiming under Binani Properties P. Ltd., the original decree-holder, under the provision of s. 146 of the CPC. Section 146 provides: “Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.” It is, however, said that s. 146 only enables initiation of proceedings, and not continuation of any proceeding. In Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394, a similar contention was made before the Supreme Court regarding the continuation of a pending appeal by the assignee of the property by virtue of s. 146. In overruling the said contention, the Supreme Court observed (at p. 397):

“The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant must be held to be maintainable under section 146.”

7. In a recent decision of the Supreme Court in Zila Singh v. Hazari, (1979) 3 SCC 265; (1979) 3 SCC 265 : AIR 1979 SC 1066, the same view has been reiterated. The above principle as laid down by the Supreme Court is also applicable for the continuation of a pending execution proceeding by the person claiming under the original decree-holder under s. 146.

8. Counsel for the appellants has, however, placed strong reliance on a Full Bench decision of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai, AIR 1932 Mad 73 [FB]. It that case, it has been laid down that by reason of s. 146 and 0. 21, r. 16 of the CPC, the legal representative of a decree-holder who dies during the pendency of an execution petition can be substituted in the execution petition and be allowed to continue it. It is not obligatory on him to file a fresh application for execution. The same view has been expressed in Harsukhrai M. Doshi v. Ahmad Kareem, AIR 1975 Pat 150; Shankar Hari v. Damodar Vyankaji, AIR 1945 Bom 380; Kacharabhai Lehrabhai… v. Kacharabhai Vadilal…., AIR 1931 Bom 423 and Annada Prasad Mitra v. Sushil Kumar Mandal, AIR 1942 Cal 390. In Bajirao Domaji Shreerang v. Kashirao Ajabrao Deshmukh, AIR 1978 Bom 350, and in Radhakisan v. Daudas, AIR 1935 Nag 230, also relied on by the appellants, it has been held that the transferee of a decree cannot execute it until his name is substituted in place of the original decree-holder.

9. On the basis of the above decisions, it has been urged on behalf of the appellants that as the name of the respondent, the Metal Distributors Ltd., has not been directed to be substituted in the tabular statement in place of the original decree-holder, a mere permission to continue the execution proceedings granted in favour of the respondent is illegal and invalid and the respondent is not entitled to proceed with the execution by virtue of such permission. The argument, in our opinion, does not carry conviction. Neither s. 146 nor 0. 21, r. 16, is a provision for substitution. In view of the decision of the Supreme Court in Saila Bala's case, AIR 1958 SC 394, referred to above, the respondent being a person claiming under the decree-holder is entitled to proceed with the execution under s. 146. Indeed, the respondent made an application for permission of the court allowing the respondent to proceed with the execution of the decree. In the said application there was a prayer for substitution. Deb J., who heard the application, granted the permission as prayed for. There was, however, no direction for substitution. In our opinion, as soon as the respondent had proved that the title of the disputed property had vested in the respondent in terms of the said order of amalgamation, the respondent became entitled to proceed with the execution. The substitution of the name of the respondent in the tabular statement in place of the name of the original decree-h older is a purely formal matter and can be carried out at any time, for there is no question of limitation. The application that is required to be made is an application for continuation of the proceedings for execution and not an application for substitution. We may refer to the observation of Sen J., in a Bench decision of this court in Annada Prasad Mitra's case, AIR 1942 Cal 390. In that case also the question was as to the continuation of an execution proceeding under s. 146 read with 0. 21, r. 16 of the Code of Civil Procedure. It has been observed by Sen J. that the right to continue or carry on proceedings presupposes a right to be substituted and an application to carry on the proceedings includes in itself an application for substitution. So, even if there be no prayer for substitution in the application, such a prayer will be implied. On the same principle, it may be said that when the court by its order allows the application and permits the transferee of the property to continue the proceeding, the court has also allowed the prayer for substitution which is implied in the application. In this connection, we may notice the contention of Mr. S.B Mukherjee for the respondent that as the transfer of the disputed property has taken place in terms of orders under s. 394 of the Companies Act, 1956, and, the respondent, Metal Distributors Ltd., having been authorised to continue all pending proceedings initiated by the decree-holder, Binani Properties P. Ltd., no further act or deed is required to be done for the continuation of the execution proceedings. This contention finds support from the observation of Bachawat J. in New Central Jute Mills Co. Ltd. v. River Steam Navigation Co. Ltd., [1959] 29 Comp Cas 357; AIR 1959 Cal 352. Be that as it may, we do not find any merit in the contention of the appellants that as there is no order for substitution of the name of the respondent, the order granting permission to the respondent to continue the execution proceedings is illegal and invalid.

10. The next point that has been urged on behalf of the appellants is that at the time S.C Deb J. made the order dated February 6, 1970, granting permission to the respondent to proceed with the execution, no application for execution was pending and, accordingly, there was no scope for passing any such order. It is contended that the order dated November 20, 1970, of S.C Ghosh J., allowing the application for execution having been set aside by the appeal court, it should be held that the application for execution was also finally disposed of and S.C Deb J. had no authority to grant leave to continue the execution which was no longer pending. It is also contended that without any order for execution, the said order of S.C Deb J. was void. The contention, in our opinion, is without any substance. The appeal court by its said order only set aside the order of S.C Ghosh J. and it did not dismiss the application for execution. On the contrary, the appeal court granted liberty to the respondent to take steps for continuing the execution proceedings initiated by the original decree-holder, Binani Properties P. Ltd. It is, therefore, absurd to think that the application for execution was also disposed of by the said order of the appeal court setting aside the order of S.C Ghosh J. Further, the order granting leave to the respondent to proceed with the execution also implies an order for execution. The contentions of the appellants are rejected.

11. Another ground of attack of the appellants to the validity of the said order of S.C Deb J., dated February 6, 1970, is that by the said order leave having been granted to the respondent to continue the execution proceedings “without prejudice to the rights and contentions of the parties”, it was only a tentative order and did not amount to the recognition of the right of the respondent to continue the execution proceedings. In support of this contention, learned counsel for the appellants has placed strong reliance on the decision of the Supreme Court in Superintendent (Tech.-I) Central Excise v. Pratap Rai, (1978) 3 SCC 113 : AIR 1978 SC 1244. In that case, the Appellate Collector of Customs vacated the order of adjudication of the Asst. Collector “without prejudice” on the ground of violation of the rules of natural justice. The question was whether by the said order a fresh adjudication proceeding was barred. It was held by the Supreme Court that as the Appellate Collector had vacated the order of the Asst. Collector on a technical infirmity and not on merits, he had advisedly used the words “without prejudice” in his order, and that if the Appellate Collector had intended to set aside the order completely and irrevocably, then he should have passed a consequential order for refund of the amount of penalty and for the release of the property confiscated. Further, it was observed that the implication of the term “without prejudice” means that the cause or the matter had not been decided on merits, and that a fresh proceeding according to law was not barred. In the instant case before us, while it is true that S.C Deb J., in his order dated February 6, 1970, had used the words “without prejudice to the rights and contentions of the parties” by that expression the learned judge meant that by granting leave to the respondent to continue the execution proceenings, he did not adjudicate on the merits of the execution petition or any objection that might be raised by the appellants subsequently in the execution proceedings. The order granting leave to the respondent, Metal Distributors Ltd., to proceed with the execution was not a tentative order; it was a final order so far as the right of the respondent to proceed with or continue the execution proceedings was concerned. This is clearly indicated, as the learned judge by the said order gave directions for the filing of affidavits by the parties. Had the leave been granted tentatively and not finally, in that case, no such direction for affidavits would have been given. In our opinion, this interpretation of the order of S.C Deb J. is quite consistent with the above decision of the Supreme Court. We are, therefore, unable to accept the contention of the appellants that the said order was a tentative order and did not amount to the recognition of the right of the respondent to continue the execution proceedings.

12. It has been already noticed that in the schedule to the order of amalgamation of this court dated September 17, 1970, of Binani Properties P. Ltd. with Binani Investment Co. Ltd., passed under s. 394(2) of the Companies Act, 1956, the disputed property was not mentioned, for it was not mentioned in the scheme of amalgamation and also in the application for sanction of the scheme. When the said omission came to the notice of the said Binani Investment Co. Ltd., since dissolved, it made an application for rectification of the said order dated September 17, 1970. By an order dated April 10, 1973, of the company court, the application was allowed and the disputed property, being 81, Netaji Subhas Road, Calcutta, was included in the schedule to the order of amalgamation dated September 17, 1970. The tenant-judgment-debtor made an application praying for the setting aside of the said order of rectification. That application was dismissed by Sabyasachi Mukharji J., by an order dated July 20, 1973. The tenant-judgment-debtor, being aggrieved by the said order dated July 20, 1973, has preferred one of these appeals, being the Appeal No. 335(A) of 1976.

13. It is contended on behalf of the appellants that after the order of amalgamation was made on September 17, 1970, and after the certified-copy of the said order was filed with the Registrar for registration, Binani Properties P. Ltd. stood dissolved as per the said order; the disputed property not having been included in the order of amalgamation, there was no transfer of the same to the Binani Investment Co. Ltd., and, consequently, the same vested in the State of West Bengal on the principle of bona vacantia or by escheat. The order dated July 20, 1973, allowing the application for rectification has been challenged on behalf of the appellants as illegal and without jurisdiction. If is contended by the learned counsel for the appellants that as there was no clerical or arithmetical mistake or error, the order of amalgamation ought not to have been amended by the inclusion of the disputed property in the schedule to the order. It is submitted that, in any event, in view of s. 559 of the Companies Act, 1956, upon the expiry of two years from the date of dissolution, the order of dissolution cannot be reopened, and the learned judge acted without jurisdiction in allowing the application for rectification which was barred by s. 559. Further, it is the contention of the appellants that the order of rectification has no retrospective operation affecting the vesting of the disputed property in the State of West Bengal by escheat or on the principle of bona vacantia.

14. The above contentions of the appellants require some consideration. The scheme of amalgamation, inter alia, provides that the undertaking of the Binani Properties P. Ltd. stands transferred to and vested in the Binani Investment Co. P. Ltd. Further, it provides, inter alia, that the undertaking of the Binani Properties P. Ltd., shall include all properties, movable or immovable, of whatever nature. By the said order dated September 17, 1970, the company court sanctioned the scheme and also made an order for transfer in Form No. 42 of App. C to the Companies (Court) Rules, 1959, as prescribed by r. 84 of the said Rules. Rule 84 provides that an order made under s. 394 shall be in Form No. 42 with such variation as the circumstances may require. As much argument has been made by either side on the interpretation of the language used in Form No. 42, we propose to set out the relevant portion of Form No. 42, para. 1 and the schedule of Form No. 42 provides as follows:

“THIS COURT DOTH ORDER

(1) That all the property, rights and powers of the transferor-company specified in the first, second and third parts of the Schedule hereto and all other property, rights and powers of the transferor-company be transferred without further act or deed to the transferee-company and, accordingly, the same shall pursuant to section 394(2) of the Companies Act, 1956, be transferred to and vest in the transferee-company for all the estate and interest of the transferor-company therein but subject nevertheless to all charges now affecting the same [other than (here set out any charges which by virtue of the compromise or arrangement are to cease to have effect)].

(Paragraphs 2, 3, 4, 5 and 6 are not relevant for our purpose and, as such, omitted)

SCHEDULE

Part I

(Insert a short description of the freehold property of the transferor-company)

Part II

(Insert a short description of the leasehold property of the transferor-company)

Part III

(Insert a short description of all stocks, shares, debentures and other choses-in-action of the transferor-company).”

15. The order that has been made under s. 394(2) of the Companies Act is in terms of Form No. 42. As has been stated already, the disputed property, being 81, Netaji Subhas Road, Calcutta, has not been included in any of the parts of the schedule to the order. The question, therefore, is whether the disputed property has also passed to the transferee-company. namely, Binani Investment Co. P. Ltd. It is contended by Mr. Mukherjee, learned counsel appearing on behalf of the respondent, that in spite of the fact that the disputed property has not been mentioned in the schedule to the order, still it has passed to the transferee-company. He has placed reliance on the expression “and all other property” in para. 1 of the order made in terms of Form No. 42. It is submitted by him that by virtue of the said expression the disputed property, which has not been mentioned in the schedule, shall be deemed to have been transferred to the transferee-company.

16. The scheme of amalgamation provides for the transfer of the entire undertaking of the Binani Properties P. Ltd: to the Binani Investment Company P. Ltd. Further, the scheme provides, inter alia, that the undertaking of the Binani Properties P. Ltd. shall include all rights, powers, authorities and privileges and all properties, movable or immovable of whatever nature, etc. The scheme of amalgamation, therefore, clearly shows that it was agreed between the parties that all properties of the transferor-company would vest in the transferee-company. The scheme of amalgamation has been sanctioned by the company court and an order for the transfer has been made under s. 394(2) of the Companies Act. In our opinion, in the facts and circumstances of the case, particularly in the face of the scheme of amalgamation, there can be no room for doubt that the said order under s. 394(2) will include all the properties of the transferor-company, As soon as it is proved that any property to which the transferor-company had title at the time such an order under s. 394(2) was made, the property shall, by virtue of the said order, be deemed to have been transferred to the transferee-company. It is true that the disputed property has not been specifically mentioned in the schedule to the order, but the expression “and all other property” is wide enough to include any property not mentioned in the schedule. It is, however, contended on behalf of the appellants that as the disputed property has not been mentioned in the schedule, it did not pass to the transferee-company. The question whether a particular property has been transferred or not depends upon the facts and circumstances of each case. We are unable to accept the contention of the appellants that as the property has not been mentioned in the schedule, that will not be covered by the order of transfer. In certain cases, particularly where the scheme of amalgamation provides for the amalgamation of the undertaking of the transferor-company in part with that of the transferee-company, the non-mention of a property in the schedule will be of some consequence. But where, as in the present case, the amalgamation is of the entire undertaking, the scheme of amalgamation providing for the transfer of all properties, both movable and immovable, of any nature whatsoever, it is difficult to hold that the non-mention of a particular property in the schedule belonging to the transferor-company will keep the property outside the scope of the order of transfer under s. 394(2). So, on a proper construction of the order in the context of the facts and circumstances of the case, we hold that even though the disputed property was not mentioned in the schedule to the order under s. 394(2), it was covered by the said order and, consequently, it stood transferred to the transferee-company. There was, therefore, no necessity for rectification of the order.

17. The learned counsel for the appellants has placed much reliance on the decisions of the Supreme Court in Peirce Leslie and Co. Ltd. v. Miss Violet Ouchterlony Wapshare, [1969] 39 Comp Cas 808; AIR 1969 SC 843 and in Narendra Bahadur Tandon v. Shankar Lal, [1982] 52 Comp Cas 62; (1980) 2 SCC 253 : AIR 1980 SC 575. In these decisions, it has been held by the Supreme Court that after a Corporation is dissolved, the property of the Corporation passed to the government by escheat or as bona vacantia. These two decisions, in our opinion, have no application to the facts and circumstances of the case, as we have already held that the disputed property had passed to the transferee-company by virtue of the order passed by the company court under s. 394(2) of the Companies Act, although the disputed property was not mentioned in the schedule to the order. In the said two decisions of the Supreme Court, there was no question of amalgamation of one company with another, but the company in question was dissolved and, accordingly, it was held that the property of the company passed to the government by escheat or as bona vacantia. In the instant case, however, the position of the transferee-company, that is, the Binani Investment Co. P. Ltd., was analogous to that of an heir of a deceased person. The question of escheat arises only when a person dies without leaving any heir. After an order under s. 394(2) was made and after the presentation of the certified copy of the order to the Registrar, the Binani Properties P. Ltd. stood dissolved and the transferee-company, that is, Binani Investment Co. P. Ltd., stepped into the shoes of the transferor-company. In our opinion, it is difficult to apply the principle of bona vacantia or escheat in view of the existence of the Binani Investment Co. P. Ltd. with.which the entire undertaking of the Binani Properties P. Ltd. was amalgamated. The contention of the appellants is misconceived and cannot be accepted.

18. Even assuming that the order under s. 394(2) did not include the disputed property as it was not mentioned in the schedule to the order, the question is whether after the rectification of the order and consequent inclusion of the disputed property in the schedule, the disputed property passed to the transferee-company with effect from the date the other properties of the company stood transferred to the transferee-company in view of the said order before it was rectified, in other words, whether the order of rectification would take effect from the date the original order was passed, that is, September 17, 1970. It is argued on behalf of the appellants that unlike an amendment of pleadings, the amendment of an order does not take effect from the date of the order when it was initially made. It is also urged that the court should not have entertained such an application for rectification, for the disputed property was neither mentioned in the scheme of amalgamation, nor was it mentioned in the application for the sanction of the scheme. Accordingly, it is contended that there was no question of clerical or arithmetical error in the order that was required to be amended or rectified and the court should not have entertained such an application for rectification.

19. It may be that an order, whether it is by way of amendment or not, takes effect from the date it is passed. The contentions as made above on behalf of the appellants do not appeal to us. When by an amendment of the order no change is effected, but the amendment only clarifies the order, such clarification or rectification will undoubtedly take effect from the date the order was passed as if it was already there in the order. In the instant case, the order having directed the transfer of all other properties, the rectification of the order that was made was by way of clarification of the order by the inclusion of the disputed property in the schedule. In the circumstances, we hold that the order of rectification is virtually an order of clarification of the order passed under s. 394(2) of the Companies Act. Such an order of rectification by way of clarification not having made any change in the order will take effect from the date the order was originally made. In the view which we take, we are unable to accept the contention of the appellants that after the expiry of two years from the date of dissolution of the transferor-company, there could not be any order of rectification. We are also satisfied that there was a bona fide mistake on the part of the respondent in not including the disputed property in the schedule to the scheme of amalgamation or in the application for sanction of the scheme of amalgamation. There is no reason not to accept the contention of the respondent that in the schedule to the order along with premises No. 31, Strand Road, Calcutta, that has been mentioned, the disputed property should have been mentioned inasmuch as the valuation of the said premises as shown in the schedule also includes the valuation of the disputed property. At the instance of the appellants, the respondent has produced before us the balance-sheets of the transferee-company for different years. The value of the disputed property stated to have been included within the value of the premises No. 31, Strand Road, Calcutta, appears to be borne out from the balance-sheets. Surely, it was not the intention of the parties to the scheme of amalgamation that the disputed property should vest in the State of West Bengal by escheat and so the disputed property was not included in the scheme. On the contrary, it was the clear intention that all assets and properties including the disputed property would be transferred to the transferee-company which, as stated already, is manifestly clear from the terms of the scheme of amalgamation. In the circumstances, there can be no doubt that there was a bona fide mistake in not mentioning the disputed property in the schedule to the scheme of amalgamation and, consequently, it was not included in the order under s. 394(2). There is no substance in the contention of the appellants that the disputed property was not included in the scheme of amalgamation mala fide with an ulterior motive.

20. The maintainability of the execution petition has also been challenged, on the ground that it was not supported by an affidavit of competency. There is no rule that when a company is the decree-holder and puts the decree in execution, the execution petition should be supported by ah affidavit of competency. Order 29, r. 1 of the CPC provides that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Except the said provision there is no provision in the CPC providing that the execution petition shall be supported by an affidavit of competency. In our opinion, in view of 0. 29, r. 1, it will be sufficient if an execution petition is verified by the secretary or any director or other principal officer of the company. Even assuming that an affidavit of competency is necessary, more than one such affidavit have been filed in the instant case in support of the execution petition. On October 10, 1969, Baldeodas Pugalia, one of the directors of the Binani Properties P. Ltd., the original decree-holder, verified the execution petition. On the same day, he also filed an affidavit in support of the execution petition. In para. 1 of the affidavit, it has been stated by him categorically that he is authorised and competent to sign and affirm the tabular statement and also the affidavit on behalf of the plaintiff-decree-holder. There can be no doubt that the said affidavit is an affidavit of competency. It is not necessary to refer to other affidavits of competency which have all been referred to by the learned judge, for one affidavit of competency is quite sufficient. There is, therefore, no substance in the contention of the appellants that as the execution petition is not supported by an affidavit of competency, it is not maintainable.

21. The next point that has been urged on behalf of the appellants is that the decree became a nullity after there had been an amalgamation of the Binani Properties P. Ltd., the decree-holder, with the Binani Investment Co. P. Ltd. and, thereafter, on the amalagamation of the latter company with the respondent, the Metal Distributors Ltd. It may be recalled that the decree for eviction that has been put into execution was passed on the ground of reasonable requirement for building and rebuilding and also on the ground of default in payment of rent. It is contended that the transferee-company, that is, either the said Binani Investment Co. P. Ltd. or the present respondent, cannot take advantage of the said requirement of the decree-holder transferor-company and seek to evict the appellants from the disputed property. It is the contention of the appellants that such requirement of the transferee-company had not been adjudicated upon under the decree, as it could not be, and so it had no locus standi to recover possession of the disputed property for the purpose of building and rebuilding. The decree for possession, the learned counsel submits, had, therefore, become a nullity and cannot be executed.

22. The above contention, in our opinion, is fallacious and does not stand to reason. In the first instance, the decree is also on the ground of default in payment of rent and, secondly, the executing court cannot go behind the decree. The decree was passed by a court of competent jurisdiction and, consequently, it was quite a valid decree. It may be that after the decree was passed the disputed property was transferred to the transferee-company, but on that ground the decree, in our opinion, had not become a nullity even though the decree was passed on the ground of reasonable requirement for building and rebuilding. It is true that the executing court can construe the decree in the light of the judgment and, if necessary, on the basis of pleadings as held in Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, (1973) 2 SCC 40 : AIR 1972 SC 1371. Such a construction can be made if the decree is vague or it is not consistent with the judgment, but where there is no such vagueness or inconsistency and the decree is clear, the executing court, in our opinion, will have no jurisdiction to embark upon a construction of the decree. Moreover, there is no question of the decree being a nullity under any principle of law simply because it was passed on the ground of reasonable requirement for building and rebuilding and thereafter the property in dispute was transferred. Under the West Bengal Premises Tenancy Act, 1956, when the decree is passed on the ground of building and rebuilding, the decree-holder has to comply with the provisions of the said Act regarding building and rebuilding, etc. But it cannot be said that as the property has been transferred, the decree has become a nullity.

23. Much reliance has been placed by the appellants on a decision of the Delhi High Court in Shama Banu v. Jagdish Parshad, AIR 1975 Delhi 164. In that case, during the pendency of the appeal against an order for eviction on the ground of bona fide requirement for building and rebuilding under s. 14(1)(g) of the Delhi Rent Control Act, 1958, the landlord sold his interest in the property and the new landlord was added as a party to the appeal. It was held that the new landlord could not evict the legal representatives of the tenant who died in the meantime, for the requirement of building or rebuilding was personal to the previous landlord and since he had ceased to be the owner that requirement came to an end after he had sold the property. If the new landlord wished to build or rebuild he would have to file his own eviction petition under cl. (g) and make his own claim against the tenant. He cannot claim the benefit of the original right to sue in his capacity as the landlord. In coming to the above conclusion, the Delhi High Court relied on and followed the decision of the Supreme Court in Phool Rani v. Naubat Rai Ahluwalia, (1973) 1 SCC 688 : AIR 1973 SC 2110, where it was held that the requirement of the landlord was his personal requirement, and that such personal cause of action must perish with the plaintiff. Phool Rani's case (supra) has since been expressly overruled in a subsequent decision of the Supreme Court in Shantilal Thakordas v. Chimanlal Maganlal Telwala, (1976) 4 SCC 417 : AIR 1976 SC 2358. We do not, however, think that the above decision including the decision of the Delhi High Court in Shama Banu's case (supra) are relevant to the facts and circumstances of the instant case. In those cases, the transfer of the property had taken place during the pendency of the suit or appeal when the decree or order for eviction was yet to be made or had not become final and conclusive so that it could be put into execution. When during the pendency of a suit for ejectment on the ground of reasonable requirement, the landlord transfers the suit premises, the court may refuse to pass a decree for ejectment on that ground, for the requirement of the landlord or the members of his family for their own occupation or for building or rebuilding cannot be the requirement of the transferee. The appeal court may also take into consideration the fact of transfer of the suit premises during the pendency of the appeal as a subsequent event and set aside the decree for ejectment. But where, as in the present case, the decree for eviction has become final, there is no bar to the transfer of the premises in question by the plaintiff-decree-holder and the transferee will, as discussed above, be entitled to execute the decree: and it will be beyond the jurisdiction of the executing court to question the right of the transferee to execute the decree or to embark upon an adjudication whether the transferee has reasonable requirement of the premises. If such a question is allowed to be raised or such an adjudication is allowed to be made by the executing court, there will be no end to litigation and the decree will lose the sanctity that is attached to it. There will also be a great departure from the doctrine that the executing court cannot go behind the decree. In the circumstances, apart from the fact, the decision of the Delhi High Court in Shama Banu's case, AIR 1975 Delhi 164, has no application to the facts of the present case. There is, therefore, no substance in the contention that after the transfer of the property in question, the decree for eviction had become a nullity.

24. The further contention of the appellants:is that so far as defendant No. 5, namely, P. Mullick & Co., is concerned, the decree passed against it was only on the ground of reasonable requirement of the landlord for the purpose of building and rebuilding inasmuch as the said P. Mullick & Co., is admittedly a sub-tenant in respect of the disputed property and it gave notice under s. 16 of the West Bengal Premises Tenancy Act, 1956. In view of s. 13(2) of the West Bengal Premises Tenancy Act, 1956, no decree for ejectment as against P. Mullick & Co. could be passed except on the ground mentioned in s. 13(1)(f), the other ground as contained in s. 13(1)(g) of the said Act admittedly not being applicable in this case. So the contention is that in any event the decree cannot be executed against P. Mullick & Co., as it was not passed on the ground under s. 13(1)(f) of the said Act.

25. The contention, in our opinion, is misconceived and is also factually incorrect. The decree was passed on August 10, 1966, that is, before cl. (f) of s. 13(1) of the West Bengal Premises Tenancy Act, 1956, was amended and cl. (f) was split up into cls. (f) and (ff) by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. The unamended cl. (f) contained both the grounds of ejectment, namely, reasonable requirement for building and rebuilding and also for personal occupation of the landlord. After the amendment, the ground of reasonable requirement for building and rebuilding has been placed under cl. (f) and the other ground under cl. (ff). The decree having been passed on the ground of reasonable requirement for building and rebuilding, it is a decree that satisfies the requirement of both the amended and unamended cl. (f). So, the decree is executable against P. Mullick & Co.

26. Lastly, it is argued that the learned judge was not justified in directing the grant of police help to the decree-holder for taking delivery of possession of the disputed property. It is submitted that without complying with the provision of 0. 21, r. 97 of the CPC, such a direction for police help cannot be given. It, however, appears that on November 8, 1968, when the bailiff had been to the disputed property to effect delivery of possession, he was resisted by the judgment debtors. The bailiff had submitted a report to that effect on November 16, 1968. On November 21, 1968, Sabyasachi Mukharji J., directed the grant of police help for the purpose of executing the writ of delivery of possession. In view of the said facts, we are of the view that the direction for police help is not unreasonable.

27. Before we part with these appeals, it may be stated that it is desirable that the tabular statement should be amended by deleting the name of Binani Properties P. Ltd. and substituting in its place the name of the respondent, Metal Distributors Ltd., so as to obviate all future difficulties in executing the decree.

28. For the reasons aforesaid, we affirm the judgment and order of Salil Kumar Roy Chowdhury J., and dismiss these appeals.

29. The respondent will be entitled to amend the tabular statement by deleting the name of the decree-holder, Binani Properties P. Ltd., and, in its place, substituting the name of the respondent, Metal Distributors Ltd.

30. In view of the facts and circumstances of the case, there will be no order for costs in any of the appeals.

31. Sen, C.J:— I agree.

L. Mullick And Co. And Others v. Binani Properties P. Ltd. And Others

Structured Summary of the Opinion (Dutta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

L. Mullick And Co. And Others v. Binani Properties P. Ltd. And Others

Comments