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ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Kewal Krishna Khosla (D) By L.Rs. -Appellant
Versus
Additional District Judge Xivth, Lucknow and Others -Respondent
W.P. No. 2912 (M/S) of 1997
Decided On : 20-02-2013
The suit was not barred by Section 69 of the Indian Partnership Act, 1932 (hereinafter referred to as the "Act, 1932"), and, therefore, the compromise decree, being a nullity since inception, could not have been executed. The Court held that the suit itself was not barred by Section 69(2) or (3) of Act, 1932.
Fact of the Case:
A partnership came in existence on 21.05.1965 between Kewal Krishna Khosla, petitioner (now deceased and substituted by his heirs and legal representatives) and Som Nath (now deceased and substituted by his heirs and legal representatives) to carry on business of medicines and allied goods in the name and title of "M/s Chemical Traders". The business was to run in a shop forming part of building situate at Tulsidas Marg Chowk, Lucknow, owned by Som Nath. He (Som Nath) instituted Suit No. 134 of 1978 seeking following reliefs: 1. A decree be passed in favour of the plaintiff against the defendant for rendition of Accounts since 1965 till upto date of the Partnership business and after accounting a decree for Rs. 700/= (Rs. 500/= on account of Capital and Rs. 200/= on account of profits) or for such sum which may be found due to the plaintiff be passed in his favour against the defendant, subject to payment by the plaintiff additional Court Fee, it necessary. 2. That by means of a decree of a Mandatory Injunction, in favour of the Plaintiff against the defendant, the defendant be commanded to remove their possession from the shop fully described in para I of the plaint and restrain himself from obstructing in any manner the exclusive possession and use of the said shop, as enjoyed by the Deed of Partnership. 3. Costs of the suit be also awarded to the Plaintiff against the defendant. 4. Any other relief which may appear proper on the circumstances of the suit be also granted to the Plaintiff against the defendant.
Finding of the Court:
The Court held that the suit was not barred by Section 69(2) or (3) of Act, 1932, and, therefore, the compromise decree, being a nullity since inception, could not have been executed.
Issues: 1. Whether compromise decree in the present case is merely a declaratory one and having no clause for execution in case of its breach, is it inexecutable? 2. Whether Execution Court has gone behind the decree? 3. Whether execution of compromise decree amounts to grant of relief of eviction to plaintiff though no suit for eviction was filed and, therefore, it could not have been executed so as to result in eviction of petitioner? 4. Whether the suit itself was barred by Section 69 of Act, 1932 and, therefore, compromise decree, being a nullity since inception, could not have been executed?
Ratio Decidendi: The Court held that the suit was not barred by Section 69(2) or (3) of Act, 1932, and, therefore, the compromise decree, being a nullity since inception, could not have been executed.
Final Decision: The Court dismissed the writ petition and held that the suit was not barred by Section 69(2) or (3) of Act, 1932, and, therefore, the compromise decree, being a nullity since inception, could not have been executed.
1. This writ petition under Article 226 of the Constitution of India has arisen from the order dated 11.04.1996 passed by Civil Judge (Junior Division) North, Lucknow rejecting petitioner's objection under Section 47 C.P.C. in Execution Case No. 22 of 1993 and the order dated 18.11.1997 passed by XIVth Additional District Judge, Lucknow dismissing petitioner's Civil Revision No. 52 of 1996 and confirming Executing Court's order dated 11.04.1996.
2. The facts, in brief, giving rise to the present dispute may be narrated as under.
3. A partnership came in existence on 21.05.1965 between Kewal Krishna Khosla, petitioner (now deceased and substituted by his heirs and legal representatives) and Som Nath (now deceased and substituted by his heirs and legal representatives) to carry on business of medicines and allied goods in the name and title of "M/s Chemical Traders". The business was to run in a shop forming part of building situate at Tulsidas Marg Chowk, Lucknow, owned by Som Nath. He (Som Nath) instituted Suit No. 134 of 1978 seeking following reliefs:
"1. A decree be passed in favour of the plaintiff against the defendant for rendition of Accounts since 1965 till upto date of the Partnership business and after accounting a decree for Rs. 700/= (Rs. 500/= on account of Capital and Rs. 200/= on account of profits) or for such sum which may be found due to the plaintiff be passed in his favour against the defendant, subject to payment by the plaintiff additional Court Fee, it necessary.
2. That by means of a decree of a Mandatory Injunction, in favour of the Plaintiff against the defendant, the defendant be commanded to remove their possession from the shop fully described in para I of the plaint and restrain himself from obstructing in any manner the exclusive possession and use of the said shop, as enjoyed by the Deed of Partnership.
3. Costs of the suit be also awarded to the Plaintiff against the defendant.
4. Any other relief which may appear proper on the circumstances of the suit be also granted to the Plaintiff against the defendant."
4. Pleading in the plaint are that plaintiff, Som Nath had communicated dissolution of partnership vide notice dated 01.03.1978 submitted to Kewal Krishna Khosla and thus rendition of accounts and restoration of individual partner's property was necessary.
5. It was contested by defendant, Kewal Krishna Khosla vide objections/counter affidavit dated 29.08.1978. He admitted plaintiff, Som Nath as owner of building in which shop in dispute is situated and had been used for running partnership business. He admitted execution of partnership deed with plaintiff but explained the circumstances in which it was executed and contended that it (partnership deed) was nothing but a fake and fictitious paper, never acted upon and partnership was created just to circumvent the provisions of rent statute, i.e., U.P. Temporary Control of Rent and Eviction Act, 1947 (hereinafter referred to as the "Act, 1947"). He pleaded that shop was in his sole tenancy since beginning in which he was running business in the name and style of M/s Chemical Traders since 1959. He was occupying the said shop in his sole tenancy. He pleaded that plaintiff is the landlord and defendant is tenant in the shop in question and in the garb of partnership deed cannot be evicted therefrom.
6. The aforesaid suit, however, ended into a compromise decree dated 26.10.1979. The terms of compromise decree, as set out in Annexure-4 to the writ petition, are as under:
"1. That the defendant will henceforth be the tenant and will pay rent @ Rs. 250/= per month with effect from 1st day of May, 1979 to the plaintiff. The defendant has cleared all the dues to the plaintiff as on 30th day of April 1979.
2. That annual repairs, white-washing, painting etc. will be carried out by the tenant himself.
3. That the tenant defendant will be liable to pay different of House Tax, Water Tax etc, if enhanced in future.
4. That the defendant will peac
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