JUDGMENT

1. The Tata Industrial Bank Ltd., Lucknow, had obtained a decree against one Kalim-ud-din. Execution was taken out by the Tata Industrial Bank and subsequently during execution proceedings an application was filed by the Central Bank of India requesting that its name may be substituted in place of the Tata Industrial Bank on the ground that the latter Bank had merged in the Central Bank and all its rights and liabilities were represented by the Central Bank. This application for substitution was taken to be under Order 22 and the executing Court of the Additional Subordinate Judge, Lucknow dismissed it on the ground that provisions of Order 22, Rules 3, 4 and 8 did not apply to execution proceedings as laid down in Rule 12 of that Order. It was also not a case of assignment during the pendency of the execution proceedings as would be covered by Rule 10. The application was made on 15th December 1923 and dismissed on 19th January 1924.

2. Subsequently on 27th August, 1924 the Central Bank of India Ltd., applied for execution of the decree under Order 21, Rule 16. This application was granted and hence Kalim-ud-din judgment-debtor has appealed. Two grounds of appeals were argued before us:

(1) that the order of 19th January decided that the Central Bank of India had no right to execute the decree and that therefore the lower Court's present order was barred by the provisions of Section 11, C.P.C.

(2) that there had been no transfer of decree as is required by Order 21, Rule 16.

3. The learned Subordinate Judge has explained why he dismissed the previous application on 19th January, 1924. He did not consider it as one brought under the provisions of Order 21, Rule 16 and the question decidedly him was one under Order 22. There was therefore no previous finding such as is alleged by the appellant that the Central Bank Ltd., was not entitled to execute the present decree.

4. We think that there has been a proper transfer. There was an agreement between the two Banks that the assets of the Tata Industrial Bank be transferred to the Central Bank. This agreement was confirmed by two resolutions (Exbs.l and 2) of the Tata Bank. The effect of these resolutions is explained by the Bombay High Court in the case of Chandabhoy v. Tata Industrial Bank Ltd. A.I.R. 1924 Bom. 339. There was a conditional agreement of July 5th, 1923, which provided for the transfer of the whole business of the Tata Bank to the Central Bank, provided the Tata Bank shareholders passed effective resolutions for the voluntary winding up of the Bank and the appointment of liquidators to carry out the transfer mentioned in the agreement. Under that agreement the whole of the assets of the Tata Bank were to be transferred to the Central Bank which undertook to satisfy all the liabilities of the Tata Bank and to keep the Tata Bank, its liquidators and contributories, indemnified against all such liabilities. Exhibits 1 and 2 are the necessary resolutions passed by the shareholders of the Tata Bank for the voluntary winding up and by a separate resolution liquidators were appointed to adopt the conditional agreement and carry it into effect. The liquidation was to be carried out under the provisions of Section 213 of the Indian Companies Act and was of an entirely different nature to an ordinary liquidation in which the liquidators would have to realise the assets of the company, and conduct other affairs of the company until the surplus assets, if any, were distributed among the shareholders and a final dissolution could be declared. The resolution of the Tata Bank amounted to an assignment in writing of the decree against Kalim-ud-din.

5. The argument of the appellant's learned Counsel that the Tata Bank had still a separate existence and was represented by its liquidator must fail in view of the particular position of the liquidators who were given no authority by the share-holders to realise the assets of the Bank.

6. The assets of the company could be realis