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IN THE HIGH COURT OF ALLAHABAD
O. P. Garg, J.
KRISHNA BHAGWAN AGARWAL - Appellant
Versus
IST ADDITIONAL DISTRICT JUDGE, BADAUN - Respondents
Civil Review Petition 28200 Of 1999, Civil Misc. Stay Application No. 28199 of 1999 and
Decided On : 05/15/1999
RECEIVERSHIP - PARTNERSHIP BUSINESS - APPOINTMENT OF JOINT RECEIVERS - REVIEW OF ORDER - RECALL OF ORDER - VALIDITY OF ORDER - INTERPRETATION OF ORDER XL, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 - LEGAL PRINCIPLES GOVERNING REVIEW OF AN ORDER.
Fact of the Case:
The petitioners, Krishna Bhagwan Agarwal and Vishnu Bhagwan Agarwal, challenged the order dated 9.2.1999 passed by the 1st Additional District Judge, Badaun, appointing a Receiver in Misc. Civil Appeal No. 59 of 1992 arising out of Suit No. 65 of 1982 instituted by Shrawan Kumar, respondent No. 2 to the petition. The order was challenged on the grounds that it was passed without notice to the petitioners, that it was based on erroneous findings of fact, and that it was prejudicial to the petitioners' interests in the pending suit.
Finding of the Court:
The court found that the petitioners had been duly served with notice of the application for the appointment of a receiver and that they had filed a written statement in response. The court also found that the order of the appellate court appointing the receiver was valid and proper, as the petitioners had excluded the plaintiff-respondent No. 2 from the management of the partnership affairs. The court further found that the directions issued by the court in its order dated 19.4.1999 were necessary to ensure the effective implementation of the order of the appellate court.
Issues: 1. Whether the order of the appellate court appointing the receiver was valid and proper? 2. Whether the directions issued by the court in its order dated 19.4.1999 were necessary and appropriate? 3. Whether the applications for review and recall of the order dated 19.4.1999 were maintainable?
Ratio Decidendi: 1. The court held that the order of the appellate court appointing the receiver was valid and proper, as the petitioners had excluded the plaintiff-respondent No. 2 from the management of the partnership affairs. The court relied on the principle that where a partner excludes another from the management of the partnership affairs, there a case is made out for the appointment of a receiver. 2. The court held that the directions issued by the court in its order dated 19.4.1999 were necessary and appropriate to ensure the effective implementation of the order of the appellate court. The court noted that the appellate court had passed a blanket order of appointment of a receiver and had left the matter to be tackled for implementation by the trial court. The court held that the directions issued by it were necessary to provide guidance to the trial court and to ensure that the order of the appellate court was implemented in a fair and equitable manner. 3. The court held that the applications for review and recall of the order dated 19.4.1999 were not maintainable. The court held that the petitioners had not shown any error apparent on the face of the record that would justify a review of the order. The court also held that the petitioners had not shown any sufficient reason for the recall of the order.
Final Decision: The court dismissed the applications for review and recall of the order dated 19.4.1999.
( 1 ) BY means of Civil Misc. Writ No. 6404 of 1999 under Article 226 of the Constitution of India, the order dated 9. 2. 1999 passed by respondent No. 1, 1st Additional District Judge, Badaun appointing Receiver in Misc. Civil Appeal No. 59 of 1992 arising out of Suit No. 65 of 1982 instituted by Shrawan Kumar, respondent No. 2 to the petition was challenged. After having heard Sri Pradeep Kumar, learned counsel for the petitioners, namely, Krishna Bhagwan agarwal, and, Vishnu Bhagwan Agarwal as well as Sri Ajit Kumar, learned counsel for the plaintiff-respondent No. 2, Shrawan Kumar Agarwal, the writ petition was finally disposed of on april 19, 1999 by an elaborate and detailed order after consideration of the law cited on behalf of the rival parties. The order of appointment of receiver passed by the lower appellate court, was confirmed as it required no interference. With a view to give a practical shape and to make the bald order passed by the lower appellate court workable, certain directions/guidelines were issued. The defendant-petitioner No. 1, Krishna Bhagwan Agarwal and Shrawan Kumar Agarwal plaintiff-respondent No. 2 were appointed as the joint receivers of the partnership business of firm M/s. Ayodhya Prasad and Sons which has branch business establishments at Bilsi, sahaswan, Ujhiani, Delhi, Kasganj, and Bisawali. The order dated 19. 4. 1999 was to take effect from 26. 4. 1999.
( 2 ) ON 26. 4. 1999, three separate applications supported by affidavits have been moved. One set of applications comprises the Review Petition No. 28200 of 1999, along with stay application No. 28199 of 1999 filed on behalf of the petitioners. Krishna Bhagwan Agarwal and Vishnu bhagwan Agarwal. In the review petition, the petitioners have pointed out that the order dated april 19, 1999, whereby Writ. Petition No. 6404 of 1999 was finally disposed of, suffers from various errors apparent on the face of the record, inasmuch as this Court has addressed itself on the facts touching the merits of the case without there being legal foundation for the same on record ; that the findings are prejudicial to the petitioners in the pending suit before the trial court ; that a large number of observations particularly those mentioned at page 14 of the judgment are based on mere assumptions and therefore, prejudicial to the interest of the petitioners in the pending suit : that writ petition has been finally disposed of in the absence of the respondents without hearing them except the plaintiff-respondent No. 2 who had filed the caveat and consequently, the order under review is vitiated on account of flagrant violation of the principles of natural justice ; that the scheme as formulated by this Court with regard to the appointment of the joint receivers is unworkable and contrary to the established principles of appointment of the receiver. On the above grounds, it is prayed that the order dated 19. 4. 1999 passed by this Court be reviewed and set aside and through Application No. 28199 of 1999 supported with an affidavit of one Narendra Kumar, who claims himself to be the pairokar of the petitioners, it is prayed that the operation of the order dated 19. 4. 1999 insofar as it relates to the appointment of the joint receivers from 26. 4. 1999 be stayed.
( 3 ) THE other application No. 28060 of 1999 has been filed by Shanti Lal son of Asarfi Lal who is respondent No. 14 in the writ petition and defendant No. 10 in the suit, for the recall of the order dated 19. 4. 1999 primarily on the ground that he had not been served with the summons/ notice in the original suit as well as in appeal and the writ petition and the order dated 19. 4. 1999 was passed without affording any opportunity of hearing to him and that the said order has caused serious prejudice to his personal interest and the business which is being carried on by him as being its sole proprietor has been put in Jeopardy. It is alleged by Shanti Lal, applicant, that he is engag
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