Judgment

SABYASACHI MUKHARJI, J. :- These appeals by special leave relate to the affairs of M/s. Eastern Tea Estate (P) Ltd. It was of two branches namely, the Duttas and the Choudhurys. Due to death and lack of cordiality between the erstwhile partners the two branches first drifted and then parted company as it unfortunately is the fate of so many Indian concerns and there were disputes and litigations in Court.

2. The Civil Appeal No. 1510 of 1987 arises from a judgment and decision of the Division Bench of the High Court of Gauhati dated 4th. June, 1987 . It appears that that a petition .was filed originally by the appellant under Ss. 397 and 398 read with S. 403 of the Companies Act, 1956 (hereinafter called the Act). The company petition came to be disposed of on 4th February, 1977 in accordance with the compromise arrived at between the partes. The said compromise comprised of inter alia, two relevant paragraphs, for the present purpose, which read as follows :

"1. Mrs. Arati Dutta will take over Chandana T. E. and Choudhury group will take over Martycherra T.E. on 25th January, 1976.

2. The Bank liability of the Company in respect to Martycherra T.E. amounting to Rs. 2,20,000/- (Approx.) shall be shared equally of which Rs. 110,000/- shall be paid by Mrs. Arati Dutta on 25th January, 1976 at Silchar in presene of Shri B. K. Das, Advocate and Shri S. K. Sen, Advocate.

3. The entire liability of the Company would be equally shared and for that purpose an independent Auditor shall be appointed by Shri S. K. Sen, Advocate who shall undertake to start the accounting from the 1st week of February, 1976.

4. The shares owned by Mrs. Arati Dutta and her sons and daughters will be sold to the Company on 25-1-76 and necessary permission shall be taken from Honble High Court in this regard.

5. The staff salary and gratuity of the employees of the Head Office of the Honble High Court is obtained shall be considered as the liability of the Company and will be borne by the two parties equally.

6. Mrs. Arati Dutta shall have to pay another sum of Rs. 12,500/- to the Company in addition to her payment of 5% liability of the Company."

3. Thereafter there were differences between the parties and it could not be adjusted as the parties could not agree as to audit. On 9th November, 1982 the parties agreed that no auditor need be appointed in the matter of determination of liability and the matter of determination of liability as per the 1973 Balance-sheet should be left entirely to the Court. In accordance with the compromise the parties were asked to submit their Balance-sheets regarding the payments made by them which related to liabilities in the Balance-sheet as on 31st December, 1973. The parties filed their Balance-sheets and the learned single Judge of the High Court computed the liabilities of the parties on that basis. Aggrieved, however, by the said decision, the appellant preferred an appeal before the Division Bench of the said High Court. The first question that was raised before the Division Bench was whether the appeal lay to the Division Bench under S. 483 of the Act which dealt with appeals from orders. The said section was as follows :

"483. Appeals from orders - Appeals from any order made or decision given in the matter of winding up of a company by the Court shall lie to the same Court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any other order or decision of the Court in cases within its ordinary jurisdiction

4. It was submitted by learned counsel that though the first application by the appellant was under Ss. 397 and 398 read with S. 403 of the Act and the same could be taken in the matter of winding up of a company to which the reference has been made in S. 483. On the other hand, it was submitted that no appeal lay. It appears to us that though this present application was relating to Ss. 397 and 398 and as it arises in respect of the orders passed under Ss. 397 an