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2019 Supreme(Kar) 1140
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P.G.M. PATIL, J.
Ramashraya Book Depot - Appellant
Versus
Subbaraju A/F Rajgopal Akalwadi - Respondent
Regular Second Appeal No. 100260 of 2019
Decided On : 07-06-2019
F.V. Patil, Adv., Aravind D. Kulkarni, Adv.
The main legal point established is that an application by a partner of a dissolved partnership firm may be prima facie not maintainable, and attempts to delay the execution of a final decree should be discouraged.
Headnote:
3rd Party Applicant - Partition Suit - Order XXI Rules 97, 98, 99, 100 and 101, Section 47 and 151 of CPC - Messrs Paramound Industries v. C.M.Malliga, (1991) ILR(Kar) 254 - AIR 1998 SC 1754 - Parmanand Vadilal Vasani and Anr. vs. State of Gujarat and Anr. - Kazi Akeel Ahemed v. Ibrahim, (1996) 8 SCC 372 - Bool Chand v. Rabia, (2016) 14 SCC 270
Fact of the Case:
The appellant, representing a partnership firm, filed an application seeking determination of the firm's rights over a property in a partition suit. The executing Court rejected the application, leading to subsequent appeals.
Finding of the Court:
The Court found that the appellant, as a partner, was not authorized to file the application after the dissolution of the partnership firm. The Court also noted the appellant's attempts to delay the execution of the final decree.
Issues: The key issues included the maintainability of the application by the appellant as a partner of a dissolved partnership firm and the appellant's attempts to protract the execution of the final decree.
Ratio Decidendi: The Court held that the appellant's application was prima facie not maintainable after the dissolution of the partnership firm and that the appellant's attempts to delay the execution should be discouraged.
Final Decision: The Court dismissed the appeal, finding no substantial questions of law and directing the parties to bear their own costs.
JUDGMENT :
P.G.M Patil, J.
1. The 3rd party applicant being aggrieved by the order dated 21.08.2018 passed in E.P.No.47/2017 on the file of the II Additional Senior Civil Judge, Dharwad and confirmed by the judgment and decree dated 20.02.2019 passed in Regular Appeal No.124/2018 on the file of the IV Additional District and Sessions Judge, Dharwad has filed this second appeal.
2. The status of the parties is referred as per their ranking before the trial Court in E.P.No.47/2017.
3. The brief facts of the case are as follows: The plaintiff Subbaraju filed a suit in O.S.No.192/1996 for partition and separate possession of his share in the suit schedule property against the defendants. The said suit came to be decreed by judgment and decree dated 09.10.2002. Thereafter FDP No.4/2007 was filed and final decree was drawn on 25.11.2016. Thereafter the decree holder filed EP No.47/2017 for effecting actual partition and taking physical possession of the suit property allotted to his share. It is admitted that the present appellant who claims to be representing the firm Ramashraya Book Depot was defendant No.3 in the suit and FDP and is also J.Dr.No.3 in the EP. It is seen from the records that there were several proceedings between the present appellant and the respondent after passing of the preliminary decree in O.S.No.192/1996 and after passing final decree in FDP No.4/2007. In the course of execution proceedings in EP No.47/2017, the present appellant Vasant Laxman Akalwadi, who is also arrayed as J.Dr.No.3 in the execution petition filed an application I.A.No.5 under Order XXI Rules 97, 98, 99, 100 and 101 read with Section 47 and 151 of CPC, as 3rd party applicant representing Ramashraya Book Depot which is a partnership firm, as one of its partners, with a prayer to determine the legal rights of the applicant's firm in and over the suit property.
4. It is the case of the applicant that he is doing partnership business in the suit property and he is in possession of the same in the capacity of partner in the firm. The two other partners of the firm are the present decree holder Subbaraju and his wife Smt. Shashikala Akalwadi. He further contended that the firm is situated in C.T.S. No. 406/1A/1B of Dharwad. The partnership firm is a separate legal entity and it was not a party in O.S.No.192/1996 or F.D.P. No.4/2007 and therefore the possessory rights of the partnership firm are yet to be determined. He has further contended that as on the date of filing of the application, partnership firm was not dissolved in accordance with law and the business is continued in the sole premises. There is no separate order for exclusive possession of the suit property in the decree passed in O.S.No.192/1996 or in F.D.P. No.4/2007. Therefore, the D.Hr. is not entitle for exclusive possession of the suit property. In order to protect the legal rights of the partnership firm, necessary enquiry may be held by giving an opportunity to lead evidence of the parties.
5. The decree holder resisted the said application by filing objections. He contended that as per the final decree, he is entitled to get exclusive possession of the suit property measuring 504 Sq.ft. as shown in the sketch by letters ABCD annexed to the decree. He referred to the Regular Appeal No.256/2017 filed by the J.Dr. No.3, which came to be dismissed and thereafter he preferred R.S.A. No.100430/2018 which was also dismissed on 15.07.2018. Further J.Dr. No.3 had filed another application under Section 148 of CPC before the executing Court which was rejected as not maintainable. Thereafter, J.Dr.No.3 also filed another application under Section 47 of the CPC praying the Court to hold enquiry to determine the rights of the firm Ramashraya Book Depot and the said application was also dismissed on 06.08.2018. Therefore the same issue cannot be raised in the present application once again by J.Dr. No.3. This application is filed when the possession warrant was issued by the Court for deliver
