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Andhra Pradesh High Court
Judges : M.JAGANADHA RAO
HYDERABAD ALLYWN LIMITED - Appellant
Versus
K.PATEL - Respondent
Decided On : 10-22-86
AMENDMENT OF DECREE - CHANGE OF NAME OF COMPANY - POWER OF COURT - SECTION 153-A, C.P.C. - SECTION 23 (3), COMPANIES ACT - Where an appeal is dismissed at the stage of admission under Order XLI, Rule 11 C.P.C., the power to amend the decree or order appealed against under Section 152, C.P.C. may be exercised by the court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the court of first instance.
Fact of the Case:
The Hyderabad Allwyn Metal Works Limited filed three suits against the respondent, which were dismissed by the trial court. The company preferred three appeals to the High Court, which were allowed. The judgment-debtors filed Letters Patent Appeals, which were dismissed at the stage of admission. The company then filed execution petitions, but the trial court held that the execution petition was not maintainable as the company's name had changed from "Hyderabad Allwyn Metal Works Limited" to "Hyderabad Allwyn, Limited."
Finding of the Court:
The High Court held that it had the jurisdiction to deal with the amendment petitions under Section 153-A, C.P.C., which was enacted to resolve the controversy regarding the court's power to amend decrees in cases where appeals were dismissed at the stage of admission. The court also held that Section 23 (3) of the Companies Act, which provides that a change of name shall not affect any rights or obligations of the company or render defective any legal proceedings by or against it, did not apply in the present case as the change in name occurred after the appeals were filed.
Issues: 1. Whether the High Court had the jurisdiction to deal with the amendment petitions after the dismissal of the appeals at the stage of admission. 2. Whether the change in the company's name affected the rights or obligations of the company or rendered defective the legal proceedings.
Ratio Decidendi: 1. Section 153-A, C.P.C. specifically provides that where an appellate court dismisses an appeal under Rule 11 of Order XLI, the power to amend the decree or order appealed against under Section 152, C.P.C. may be exercised by the court which had passed the decree or order in the first instance. 2. Section 23 (3) of the Companies Act provides that a change of name shall not affect any rights or obligations of the company or render defective any legal proceedings by or against it. However, this provision does not apply to cases where the change in name occurs after the legal proceedings have been instituted.
Final Decision: The High Court allowed the amendment petitions and directed that the cause title in the memoranda of appeals, judgment, and decrees be amended to reflect the change in the company's name from "Hyderabad Allwyn Metal Works Limited" to "Hyderabad Allwyn, Limited."
( 1 ) THESE are applications for the amendment of the cause title in the judgment and decrees passed by this court on 19-1-1985 in CCCA. Nos. 105, 121 and 123 of 1977.
( 2 ) THREE suits OS. Nos. 111/73, 223/74 and 319/73 were instituted by the Hyderabad Allywn Metal Works Limited, Sanathnagar, Hyderabad, against the respondent in these three petitions. The suits were dismissed by the decree and judgment dated 7-4-1977. Against the said decree of dismissal of the suits, the Hyderabad Allwyn Metal Works Limited preferred three appeals to this court as CCCA. Nos. 105, 121, and 153 of 1977 against OS. Nos. 111/73, 223/74 and 319/73. These appeals were allowed by my judgment dated 19-1-1985 after notice to the respondents-plaintiffs and after hearing the respective counsel for the parties. Against my judgment rendered in the above three appeals decreeing the suits in favour of the company, the defendants preferred Letters Patent Appeal Nos. 155, 157, and 153 of 1985 before a Division Bench of this court. It is not disputed before me and it is also disclosed by the record in the case that these L P. As. were dismissed at the stage of admission on 19-4-1985.
( 3 ) IN these appeals, the Company was described by the judgment-debtors, as Messrs. Hyderabad Allwyn Metal Works Limited in the same manner in which it was described in the plaint. Against the judgment of the Division bench, special leave petitions were filed before the Supreme Court as Civil nos. 7712-13 of 1985 (A/n) only in LPA. Nos. 157 and 158 of 1985, but not in LPA. No. 155/85. The Supreme Court dismissed the special leave petitions on 19-4-1985. It is stated that the respondents in ths appeals were given notice , The order of the Supreme Court produced before me shows that the special leave petition was dismissed, at the stage of admission of the appeal.
( 4 ) SUBSEQUENTLY, the decree-holder filed execution petition in the trial court. At that stage, it was realised by the decree-holder that there was a change in the name of the company from hyderabad Allwyn Metal Works limited" to "hyderabad Allwyn, Limited. " The resolution had been passed by the company, at its annual general meeting on 7-5-1981 with regard to the change of the Company and thereafter a certificate had been isaued on 2-10-81 by the Registrar of Companies stating that under the provisions of Section 23 (1) of the Indian Companies Act, the name of the Company is changed.
( 5 ) AS this was an event which happened at the time when the first appeals, viz. , C. C. C. As. were pending in this court, the judgment-debtor took on objection in the trial court that the execution petition was not maintainable. The Company then filed EA, No. 185 of 1985 for the amendment of the decree by amending the name, That application was oppossed by the judgement-debtors on the ground that the execution court has no pawer to amend the decree. The said abjection was upheld by the learned 4th Additional judge, City Civil Court, Hyderabad, by his order dated 22-7-1986.
( 6 ) THEREAFTER, the decree-holder has come forward with the present applications for amendment in the main CCCAs. , which were disposed of by me earlier.
( 7 ) IT is contended by the learned counsel for the petitioner Sri S. R. Patnaik that the judgment in the L. P, As. having been rendered at the stage before admission and the Supreme Court having rejected the special leave petition, the proper court to hear this petitions for amendment is the first appellate court. It is also contended that, under the provisions of Section 151 read with section 153 of the Code of Civil Procedure, the amendment in the cause title can be ordered by me in as much as the change in the name was not brought to my notice earlier on account of a mistake. On the other hand, it is contended by Sri N. V. B. Shanker Rao and Sri Gowri Shankar for the respondents that this court had no jurisdiction to deal with these petitions and that the proper court would be either
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