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25. For the reasons given above I am unable to accept the appellant's argument that Section 120 of the Act of 1913 applies to a case falling under Section 109A of that Act.

26. As the second point has been decided against the appellant and as I have held the Court is not competent to grant extension of time for registration of a mortgage or charge under Section 120 of the Indian Companies Act in a case which falls under Section 109A, the third question that arises is whether the order made by S.B. Sinha J. on the 4th April, 1949 is a nullity which can be revoked even at the instance of a person who has no interest in the subject matter of the dispute. On behalf of the respondent Mr. Subimal Roy has contended that the Court has jurisdiction to revoke an invalid order suo motu. He has further contended that assuming that the respondent has no right to come in under the first subsection ,of Section 120 of the Indian Companies Act he is at least a person who is affected by the order passed by S.B. Sinha J. and as such he is entitled ex debito justitiae to have it set aside. In support of this proposition Mr. Roy has relied upon the decision of the Privy Council in the case of S.T. Hussein v. Rughoonath, 14 MIA 40 at pp. 47, 48. That was a case where an expectant claim under an inchoate award by arbitrators was sold in execution of a decree, and purchased by the appellant Tuffuzzool Hossain. On an application by the respondent the sale was set aside by the executing Court without issuing any notice to the appellant who was in ignorance of it and had no opportunity of opposing it. The appellant thereafter brought a suit to set aside the order annulling the said sale and to enforce his rights as an auction purchaser. The suit was decreed by the trial court but it was dismissed on appeal and against the decree of the appellate court the appellant took an appeal to the Privy Council. The Privy Council affirmed the decision of the appellate court on the view that the expectant claim under an inchoate award was not property within the meaning of Section 205 of the Code of Civil Procedure which was then in force namely Act VIII of 1859. With regard to the decree made by the trial court the Privy Council made the following observations at pp. 47 and 48 :

"A person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned it seems to me that the court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it".

This dictum of Lord Greene was followed by the Privy Council in an appeal from the West African Court of Appeal in the case of Kofi Forfie v. Seifah, 1958 AC 59 at p. 67. In the case of Craig v. Kansen. 1943-1 KB 256 the ex parte order was challenged by persons who were parties to the proceeding and in Kofi Forfie's case, 1958 AC 59, the persons who challenged the ex parte order derived their title from persons who were parties to the order. No case has been cited before us which lays down that an ex parte order can be challenged by a person who was not only not a party to the proceeding but also had no interest which required protection in the proceeding. The present case is one where the ex parte order made by S.B. Sinha J. has been challenged by respondent No. 1 Abhoy Sing Sahela who according to my decision on the first point could claim no interest in the subject matter of the proceeding. I am therefore unable to hold that the decisions relied upon by Mr. Subimal Roy have any application to the facts of the present case. The question however still remains whether the order made by S.B. Sinha J. is void and is a nullity which has no existence in the eye of law. If it is a nullity in the sense that it is legally non-existent no proceeding need be started to have it set aside as has been done in the present case. It can be simply ignored and can be collaterally challenged. The conduct of the first respondent, however, shows that he has not treated it as a nullity and has taken steps to avoid it. The learned trial judge has relied upon the decisions in the cases of Tulsiman v. Harihar, ILR 32 Cal 253 (FB), Sudevi Devi v. Sova Ram 10 Cal WN 306 and In the Goods of Akshoy K. Ghosh, AIR 1949 Cal 462 for the proposition that he had jurisdiction to set aside the order made on the 4th April 1949. Upon the view taken by the learned trial judge to the effect that unsecured creditors require protection in a proceeding under Section 120 of the Indian Companies Act of 1913 the decisions relied upon by him undoubtedly apply; but as I have held that unsecured creditors are not entitled to protection in a proceeding under Section 120 of the Indian Companies Act these decisions in my opinion have no application. On the question whether order dated the 4th April, 1949 is void or voidable the learned counsel for the appellant has contended and in my opinion rightly, that the order is one which was made upon irregular assumption of jurisdiction and is not an order which was made without jurisdiction. In support of this proposition reference may be made to the case, of Hriday Nath v. Ram Chandra, ILR 48 Cal 138 at p. 147: (AIR 1921 Cal 34 at p. 36) where a Full Bench of this court had to consider the question whether an order permitting a plaintiff to withdraw a suit with liberty to institute a fresh suit in a case which did not come under Order 23 Rule 1 Sub-rule 2 of the Civil Procedure Code was a nullity and held that it was an order which was made by irregular assumption of jurisdiction. In that case it was pointed out that the jurisdiction of a court depends upon three circumstances namely, pecuniary, territorial and jurisdiction over the subject matter and if these conditions are fulfilled the court can be said to have jurisdiction. In that case Mukherjee C. J. delivering the judgment of the Full Bench observed as follows :

"The classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter is obviously of a fundamental character. Given such jurisdiction we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction."

In the present case S.B. Sinha J. being the Company Judge had jurisdiction under Section 3 of the Indian Companies Act over the subject matter of the dispute and there is no dispute that he had territorial as well as pecuniary jurisdiction in respect of the subject matter of the dispute. Consequently the conclusion is irresistible that the decision which he actually gave is a decision given in irregular exercise of that jurisdiction. For the foregoing reasons I hold that the order made by S.B. Sinha J. on the 4th of April, 1949 is not a void but merely a voidable order and it can be revoked only at the instance of a litigant who has an interest in the subject matter of that proceeding,

32. For the reasons given above with great respect to G.K. Mitter J., I cannot agree with the order passed by him. I hold that the first respondent Abhoy Singh Sahela had no locus standi to fife the application for revocation of the order made by S.B. Sinha J., on 4-4-1949. I further hold that the order passed by S.B. Sinha J., is not a void order but is merely a voidable order which could be revoked or recalled at the instance of a person who had acquired rights in respect of the property which form the subject-matter of the mortgage or charge and as the first respondent is not such a party the order passed by S.B. Sinha J., could not be revoked or recalled at his instance. I would accordingly allow this appeal and set aside the order passed by G.K. Mitter J., and direct that the application filed by the first respondent Abhoy Singh Sahela be dismissed with costs in this Court as well as in the trial court. The liquidator of the appellant bank will be entitled to retain his own costs in the first instance out of the assets of the bank in his hands. The liquidator of the second respondent will also be entitled to retain his costs as between attorney and client out of the assets of the company in his hands but as between party and party both the respondents will be jointly and severally liable for costs of the appellant in this court as well as in the trial court. Certified for two Counsel.