Executors can proceed with litigation after a transfer of rights pendente lite when original parties fail to contest decrees, and mere allegations of fraud do not invalidate judicial decisions.

1. This is an application for winding up of Bajrangbali Engineering Company Limited having its registered office at No. 66, G.T. Road, Liluah, Howrah, hereinafter referred to as the "company". The petitioners are the executors of the Will of one Mriganka Mohan Sur, since deceased. The said Mriganka Mohan Sur was the owner of more or less 49 bighas of lands comprised in premises No. 135, Girish Ghose Road and 11/2. Guha Road Ghusuri, P.S. Bally, District Howrah. The said Mriganka Mohan Sur died on 3-11-1983 leaving a Will whereby he appointed the petitioners herein as the executors thereof.

2. Without going into details of the history as to how the claims in this petition arose, it will be suffice to state it shortly that the instant petition is founded on the basis of three ex parte money decrees passed against the Company, i.e. in favour of the petitioners by the Second Subordinate Judge, Howrah. The particulars of the suits and the decrees obtained therein and the decretal claims of the petitioners are set out herein seriatim as follows :

These three money suits claiming mesne profits against the said company for wrongful occupation of the said two premises were originally instituted by the said Mriganka Mohan Sur while he was alive and after his death on 3-11-83 during the pendency of the said suits, the petitioners as executors of his will were substituted in the said three money suits as the plaintiffs after obtaining Probate. The substituted plaintiffs had thus proceeded with the said suits and obtained the said three decrees in the said three money suits in 1986.

3. The claim of the petitioners in this winding up petition is to the tune of Rs. 6,43,311.09/- being the total of the decretal amount in the said three money suits.

4. The petitioners' case is that the Company had contested the said suits by duly filing its Written statement therein but ultimately did not contest the same at the trial and as such expert decrees were passed in the said three money suits in favour of the petitioners. The said Company did neither take out any application under O.9 R.13 of the Civil P.C. for setting aside the said three ex parte decrees nor had preferred any appeal against the said three ex parte decrees. In the application for substitution under O.22, R.3 of the Code taken out by the petitioners after the death of the original plaintiff, the Company although served with notice did neither object to the substitution of the petitioners as the plaintiffs in the said three money suits nor did raise any dispute as to the competency of the petitioners for being so substituted in the said three suits and allowed the said three ex parte decrees to have been passed against it.

5. Seeing that the Company did not pay the said claim of the petitioners for mesne profits as decreed in the said three suits in spite of demands, the petitioners issued statutory notice to the Company under S.434 of the Companies Act on 6th Nov. 1986. On 25th Nov. 1986 the Company replied to the statutory notice denying their liability to pay the same as demanded and made out a case that the petitioners were not entitled to claim any amount by way of damages and / or mesne profits as successors - in - interest of the late Mriganka Mohan Sur by reason of the fact that the said Mriganka Mohan Sur while he was alive had by then already transfe