A winding-up petition based on a money decree is maintainable within 12 years from the date of the decree, as per Article 136 of the Limitation Act, 1963, despite the absence of a specific limitation period in Section 434 of the Companies Act, 1956.

( 1 ) THIS appeal is directed against the order dated 7th january, 2003, passed by the learned Company Judge on an application filed by the appellant for recalling of an order of winding up passed by the learned Company judge on 27th June, 2002. As will appear from the order impugned in the appeal, the application for recalling the order of winding up was made mainly on the grounds that (1) no notice of the winding up petition had been served upon the company which, as a result, could not represent itself when the order of winding up was passed and (2) the filing of the winding up petition was barred by limitation.

( 2 ) ON the first ground the learned Company Judge observed that the order of winding up had been passed after giving public notice in two newspapers. The learned Judge further observed that even if it was assumed that the copy of the winding up petition had not been received by the appellant at the preadmission stage, the company could have appeared at the time of final hearing and raised the objections which it was raising in the application for recalling of the winding up of the order. Furthermore the winding up petition had already taken a representative character upon publication of notice.

( 3 ) ON such considerations, the learned Company Judge rejected the first contention raised on behalf of the appellant relating to service of notice.

( 4 ) REGARDING the second question, the learned Company Judge was of the view that under section 433 of the Companies Act an unsecured creditor could apply for winding up provided he had a just claim, including a decretal claim. Repelling the submission made on behalf of the appellant that since no period of limitation had been prescribed under section 434 of the above Act, Article 137 of the Limitation Act, 1963, would have application, the learned Company judge held that since the decree was capable of being executed within a period of 12 years, the claim under the decree must be held to be a just claim which could be enforced within the said period in a winding up proceeding.

( 5 ) APART from the question as to whether the appellant company had notice of the winding up proceedings before the winding up order was passed, this appeal raises an interesting question as to whether a winding up petition is maintainable on the basis of a decree of a Civil Court in respect of a money claim after a period of three years from the date of the decree but within 12 years thereof.

( 6 ) APPEARING in support of the appeal, Mr. Mukti Ghosh reiterated the first point urged by him for recalling of the order of winding up and submitted that notice of the winding up petition had not been served on the company prior to the passing of the winding up order, thus depriving the appellant company of its right to dispute the claim as raised on behalf of the petitioning creditor. On the second question, Mr. Ghosh submitted that the learned company Judge had misconstrued the provisions of section 434 of the companies Act, 1956, since it is well-established that in the absence of any period of limitation indicated in the said section, Article 137 of the Limitation act, 1963, would apply to a proceeding thereunder.

( 7 ) MR. Ghosh urged that a money decree was in the nature of a money claim which stood barred three years after the passing of the decree and could not be the basis of a winding up petition. Mr. Ghosh hastened to add that the said position would not prevent the decree-holder from putting such a decree into execution within a period of 12 years in proceedings for execution but not by way of a winding up petition.

( 8 ) IN support of his aforesaid contention Mr. Ghosh firstly referred to the decision of the Hon'ble Supreme Court in the case of Kerala State Electricity board, Trivandum vs. T. P. Kunhallumma, (AIR 1977 SC Page 282) wherein it was held that Article 137 of the Limitation Act applies to any petition or application filed under any Act, which according to