M. SULEMAN & CO. Through Managing Partner vs JOINT OFFICIAL

CH. KHURSHID AHMAD, J.---Mansoor Textile Mills Ltd., and Aaj Textile Mills Ltd. Located at Shorkot, were the subject-matter of winding up in C.O. No.22 and C.O. No.23, 1978, respectively. Winding up in both the cases was made on 23-10-1988, and Malik Muhammad Nawaz, Advocate, Muhammad Ashraf Hijazi, Advocate and Kh. Shaukat A.I, Advocate were appointed as joint Official Liquidators.

2. Both the factories were ordered to be auctioned and intended auction was duly advertised on the basis of "as it is where it is", and the appellant at the said public auction was the highest bidder.

The bid was approved. Full payment of the auction money was made by the appellant and he was put in possession of both the factories on 5-4-1990.

3. The appellant applied to WAPDA for electric supply but WAPDA demanded Rs.7,11,588.32 and Rs.5,68,115.62 as arrears, due and outstanding respectively against both the factories. The appellant claimed that the factories were purchased without encumbrance and the appellant was entitled to the power connection without making payment of the arrears, which were the liabilities of the companies being wound up, and that WAPDA had filed its claims before the Joint Official Liquidators.

4. The appellant filed petition, C.M. No.763-L of 1990, which was dismissed by the Company Bench, of this Court, in the following terms:--- "Since there is nothing in the said proclamation or in the order of transfer of the property to Suleman & Company that the transfer thereof in favour of Sulerrian & Company would be free from all encumbrances, I am not inclined to make the declaration sought by Suleman & Company. C.M.

No.763-L of 1990, made by the Suleman & Company in this regard is dismissed."

5. The maintainability of the present appeal was contested by the learned counsel for the respondents, on the ground that Intra Court appeal, in the present case, was not maintainable. The matter of winding up of company was pending before the Company Bench of this Court, on the original side under Companies Ordinance, 1984 (XLVII of 1984), and that the appeal would lie to the Supreme Court. .

6. Appeal against any order, decision or judgment was provided under section 10 of Ordinance supra and forum of appeal was mentioned in Supreme Court in subsection (2) thereof. In all cases not provided for in section 10(1) of Ordinance supra remedy of appeal was provided under subsection (2) of the said section. In Ch. Jamil Ahmad v. Nippon Bobbin Company Pakistan Ltd. PLD 1991 Lah. 467, it was observed:-- "The two provisions viz. Subsection (1) and subsection (2) therefore, stand reconciled that in case an appeal. Is to be preferred against any order, decision or judgment when an order of winding up has been passed, it will lie to the Supreme Court of Pakistan whether in the shape of appeal or petition for leave to appeal as the case may be and subsection (2) of section 10 will be attracted in respect of an order when winding up has not already been directed."

7. In view of the above, we are of the view, that Intra-Court appeal under section 3 of Law Reforms Ordinance, 1972, was not competent.

8. The appeal is accordingly dismissed, with no order as to costs.