SANKAR PRASAD MITRA, J.

( 1 ) THIS rule is against an order of the First Subordinate Judge at Alipore being Order No. 19 of January 27, 1971, in Title Suit No. 46 of 1970. The petitioner, it appears, preferred a claim against attachment of property by Nath Bank Ltd. (in liquidation ). There were proceedings under Order 21, Rule 58, of the Code of Civil Procedure, which terminated against the petitioner. Thereafter, the petitioner filed a suit under Order 21, Rule 63. The suit was instituted without obtaining leave of court as contemplated by Section 171 of the Indian Companies Act, 1913. The First Subordinate Judge by his aforesaid order has directed the petitioner to obtain the leave by February 27, 1971, and has stayed all proceedings in the suit under Order 21, Rule 63, in the meantime. The petitioner is aggrieved by this order.

( 2 ) MR. Das appearing for the petitioner has argued that no leave under Section 171 is necessary to institute a suit under Order 21, Rule 63. His contention is that a suit under Order 21, Rule 63 is a suit by way of defence and is merely a continuation of the proceedings under Order 21, Rule 58. Learned advocate primarily relied on a Division Bench j

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