other Courts.

168. Where any order or decree made by one Mode of Court is required to be enforced by another Court as dealing with orders to be hereinbefore provided(i), a certified copy of the order enforced by or decree so made shall be produced to the proper officer of the Court required to enforce the same, and the production of such certified copy shall be sufficient evidence of such order or decree having been made; and thereupon such last-mentioned Court shall take such steps in the matter as may be requisite for enforcing such order or decree, in the same manner as if it were the order or decree of the Court enforcing the same.

Sec. 123 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, omitting the word" interlocutor," and substituting "certified copy" for "office copy," in that section; and sec. 140 of the Indian Companies' Act X. of 1866,

verbatim.

(i) Sec. 167, supra.

169. Re-hearings of, and appeals from, any Appeals order or decision made or given in the matter of the from orders. winding-up of a Company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction; subject to this restriction, that no such re-hearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given under the Code of Civil Procedure, unless such time is extended by the Court of Appeal.

Sec. 124 of the English Companies' Act (25 and 26 Vic., c. 39), 1862, substituting the words "ordinarily given under the Code of Civil Procedure" for "ordinarily given according to the practice of the Court appealed from," and omitting the proviso in that section with reference to the Lord Warden of the Stannaries; and sec. 141 of the Indian Companies' Act X. of 1866, verbatim.

As to re-hearings and appeals under the Code of Civil Procedure, see Chap. XLI. of that Code XIV. of 1882; as to the period of limitation for the same, the Limitation Act XV. of 1877, sched. II. No. 151, provides that the period of limitation from a decree or order of the High Courts in the exercise of their original jurisdiction is 20 days from the date of the decree or order; for appeals under the Code to the Court of a District Judge, 30 days from the date of the decree or order, and section 5 of that Act provides for the extension of the time for appealing.

Principles on which Court will grant extension of time for appealing.

Judicial

taken of

signature of officers.

See also the Rules as to appeals in Bombay, post, appendix. Notice of appeal should be given to the respondents within the time specified in this section.

In England the practice is that notices [under sec. 124 of the Companies' Act, 1862], are served by the appellant or his attorney, so that if the notice is not given within the proper time, the appellant has only himself to blame. But in India, under the Civil Procedure Code, the service is effected by the Court, so that the appellant's right of appeal depends not on himself, but upon whether the officer of the Coart performs his duty. The notice is, of course, intended for the benefit of the other parties who are interested in the winding-up proceedings, and to prevent these proceedings being unduly delayed. The appellant's proper course clearly was to ascertain whether the notice had been served within the three weeks; and if he found that it had not, he should have applied to this Court at the earliest opportunity to extend the time for giving it." Garth, C. J., in IN RE The Sarawak and Hindustan Banking and Trading Co., I. L. R. 4 Cale. 704, 3 Calc. R 581; where the Court declined also to extend the time.

The absence of a person whose position, had he been present at the appeal, might have been affected, will not prevent the Appeal Court from doing justice to the appellant before them. IN RE Duchess of Westminister Silver Lead Ore Co., 10 Ch. Div., 307 (Thesiger, L.J., however, dissenting).

As a general rule, an application to discharge an order made in Chambers to place a person on the list of contributories should be made within the three weeks limited for bringing an appeal, IN RE Elham Valley Ry. Co., Dickson's case, 12 Ch. D., 298.

In IN RE Diamond Fuel Co., 13 Ch. Div., 400, the Company was allowed to appeal against a winding-up order, although a liquidator had been appointed.

The liquidator in a voluntary winding-up if desirous of appealing from a decision of a Judge, should first obtain leave from the Judge; otherwise if his appeal fails he may be refused his costs out of the estate. IN RE City and Country Investment Co., 13 Ch. Div., 475.

Where a resolution to wind-up voluntarily was passed but was invalid, and a supervision order was made subsequently, in ignorance of the invalidity of the resolution; and five months afterwards the petitioners discovered its invalidity and moved before the Vice-Chancellor for a compulsory order, which however he refused on the ground of want of jurisdiction to re-hear the petition; from which refusal petitioners appealed and also applied to the Court of Appeal for leave to appeal against the original order, notwithstanding the lapse of time; the Court of Appeal held that the mistake as to the validity of the resolution formed a special ground for the application, and the respondents had no equity to resist it. IN RE Manchester Economic Building Society, 24 Ch. Div., 488; per Brett, L. J., p. 497, “I know of no rule other than this, that the Court has power to give the special leave, and exercising the judicial discretion is bound to give the special leave, if justice requires that leave should be given." See also per Cotton, L. J., p. 499.

170. In all proceedings under this part of this notice to be Act, every Court, Judge and person judicially acting, and all other officers, judicial or ministerial, of any Court, or employed in enforcing the process of any Court, shall take judicial notice of the signature of any officer of any other Court, and also of the official seal of any other Court, when such seal is appended to any document made, issued or signed under the

provisions of this part of this Act, or any official copy thereof.

Soc. 125 of the English Companies' Act (25 and 26 Vie.. c89), 1862, mutatis mutandis; and sec. 142 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 57 (6) of the Indian Evidence Act I. of 1872.

sioners for

171. The Judges of the District Courts, who sit Special at places more than twenty English miles from the Commis usual place of sitting of the High Court, shall be receiving Commissioners for the purpose of taking evidence evidence. under this Act in cases where any Company is wound-up in a ligh Court; and it shall be lawful for the High Court to refer the whole or any part of the examination of any witnesses under this Act to any person hereby appointed Commissioner, although such Commissioner is out of the jurisdiction of the Court that made the order or decree for winding-up the Company.

Every such Commissioner shall, in addition to any power of summoning and examining witnesses and requiring the production or delivery of documents and certifying or punishing defaults by witnesses, which he might lawfully exercise as a Judge of a District Court, have, in the matter so referred to him, all the same powers of summoning and examining witnesses, and requiring the production or delivery of documents, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the Court which made the order for winding-up the Company has; and the examination so taken shall be returned or reported. to such last-mentioned Court in such manner as it directs.

Cf. sec. 126 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 143 of the Indian Companies' Act X. of 1866, verbatim.

In the English Companies' Act here follows sec. 127, under which the examination of persons in Scotland may be ordered.

sworn in

172. If any affidavit, affirmation or declaration, Affidavits, required to be sworn or made under the provisions &c, may be or for the purposes of this Part of this Act, be British lawfully sworn or made in British India, or in Great India, Great Britain or Ireland, or in any colony, island, planta-land, or tion or place under the dominion of Her Majesty in abroad,

Britain or

before any competent Court or person.

Circumstances under which Company may be wound up voluntarily.

foreign parts, before any Court, Judge or person lawfully authorized to take and receive affidavits, affirmations or declarations, or before any of Her Majesty's Consuls or Vice-Consuls in any foreign parts out of Her Majesty's dominions, all Courts, Judges, Justices, Commissioners and persons acting judicially in British India shall take judicial notice of the seal or stamp or signature (as the case may be) of any such Court, Judge, person, Consul or Vice-Consul, attached, appended or subscribed to any such affidavit, affirmation or declaration, or to any other document to be used for the purposes of this part of this Act.

Sec. 128 of the English Companies' Act (25 and 26 Vic., c. 89), adding the words "in British India"; and sec. 144 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 57 of the Indian Evidence Act I. of 1872.

Voluntary Winding-up of Company.

173. A Company under this Act(i) may be woundup voluntarily

(a) whenever the period, if any, fixed for the duration of the Company by the articles of association expires, or whenever the event, if any, occurs upon the occurrence of which it is provided by the articles of association that the Company is to be dissolved, ard the Company in general meeting has passed a resolution requiring the Company to be wound-up voluntarily;

(b) whenever the Company has passed a special resolution(ii) requiring the Company to be wound-up voluntarily;

() whenever the Company has passed an extraordinary resolution to the effect that it has been proved to its satisfaction that the Company cannot by reason of its liabilities continue its business, and that it is advisable to wind-up the same:

For the purposes of this Act any resolution shall be deemed to be extraordinary which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as hereinbefore defined.

Sec. 129 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and see. 145 of the Indian Companios' Act X. of 1866, verbatim.

(i) But not an "unregistered Company," sec. 243 (2) post.

(ii) Sec. 77 supra, p. 71, and note thereto, and as to advertisement of notice of a special or extraordinary resolution to wind-up voluntarily, see sec. 176, post; and the special resolution must be registered, sec. 79, supra, p. 73.

To Companies formed and registered under Act XIX. of 1857 and VII. of 1860, this Act is by sec. 221, post, to apply as if they had been formed and registered under this Act. Such Companies therefore, are under no necessity of re-registering under the power given in sec. 224, post, and are not included under the designation of unregistered companies in sec. 243, post. Such Companies are, therefore, free from the prohibition contained in sec. 243 (2) post, and may be wound-up voluntarily. See Buckley, 4th ed., 285.

Allegations of fraud in a petition for winding-up a Company by the Court and the appointment of their own secretary as provisional liquidator will be sufficient to lead the Court compulsorily to wind-up the Company, although resolutions for a voluntary winding-up have been passed. IN RE British Alliance Assurance Corporation, 9 Ch. D., 635.

ment of

174. A voluntary winding-up shall be deemed to Cominencecommence at the time of the passing of the resolution voluntary authorizing such winding-up(i). When the winding- winding-up. up is in pursuance of a special resolution, it shall be deemed to commence at the time of the passing under section seventy-seven, of the confirmatory resolution(ii).

The first sentence of this section corresponds with sec. 189 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 146 of the Indian Companies' Act X. of 1866, verbatim.

The second sentence embodies the decision in Daves' case, L. R. 6 Eq. 232; Weston's case, L. R. 4 Ch. 20; Hornby's case, 10 W. R., 1164; 19 L. T., 237.

Cf. sec. 63 of Act XIX. of 1857.

(i) See sec. 133, supra, as to commencement of winding-up by the

Court.

(ii) See sec. 77, supra, p. 71.

under super

"When a voluntary winding-up is continued under supervision, the Commencement winding-up is deemed to commence at the date of the resolution, and not of winding-up at the date of the presentation of the petition, for the order is to continue vision. the winding-up, and the commencement of such winding-up is defined by this section." Buckley, 3rd ed., 255, 4th ed., p. 285.

Where, on the 24th December 1874, a general meeting of shareholders Winding-up was held at which resolutions were passed for a voluntary winding-up of followed by the Company, and the transfer of its business to a new Company, which winding-up. Compulsory were confirmed by a meeting on the 15th January 1875; and in March 1877 a petition was presented for the compulsory winding-up of the old Company, upon which an order was made on the 17th of the same month, Lindley and Fry, L. J.J. were of opinion that the winding-up was to be treated as having commenced at the presentation of the petition,