The respondent No.1 has died. An application for substitution of the
names of the legal representatives has been filed. The names of the legal
representatives are mentioned in the application. The prayer is allowed. The legal
representatives, as mentioned in the application are ordered to be brought on record.
They shall be impleaded as respondents (ii) to (vi). Legal representative at Sl.No.(i) is
already on record as respondent No.2.
This appeal is directed against the judgment and order dated 30th November,
2004, passed by the Madhya Pradesh High Court, Jabalpur Bench, disposing of the
Writ Petition filed under Article 227 of the Constitution of India.
Counsel appearing for the appellants submits before us that in a suit for
dissolution of the partnership, a preliminary decree already stands passed by the court
of Additional Judge, District Court, Gwalior in Case No.7-A 78 C.S. The said order
was passed in the suit filed by the appellant herein as plaintiffs seeking for a decree of
dissolution of partnership and for transaction accounts of the partnership. In the said
suit, a preliminary decree was
passed on 10th October, 1979, declaring that the partnership firm would be deemed to
have been dissolved from 15/02/1975 and that an advertisement be taken out regarding
the aforesaid dissolution. Our attention is drawn to the orders of the dissolution
made by the Trial Court in the said preliminary decree, particularly, to the following
order as appearing in paragraph 3:-
“All the transactions of the accounts
between the plaintiffs & defendants be sough for. It is
also be observed. It is also be observed in this regards
that by the order dated 01.2.77 of the Hon'ble Supreme
Court, the defendants No. 1 & 2 had paid the plaintiffs on
dated 05.2.77 and 08.2.77 Rs.1,46,513.60 through this
Court. In this regard it is also be observed that according
to the order dated 24.8.79 passed by the Hon'ble High
Court, M.P. Bench, at Gwalior, the defendant No.1
present Receiver, who is maintaining the accounts and
submitting in this court, and for auditing of all such
accounts Shri P.D. Garg & Co. Patankar Bazar, lashkar
is appointed Auditor and he is instructed to submit his
report by 15.11.79.”
It is pointed out by the counsel for the appellants that the Receiver, who was
appointed by the court has since died and he has not been replaced till date. It is also
submitted by the counsel appearing for the appellants that the Receiver was required
to maintain accounts and submit the same in the court, which was to be audited by
Shri P.D. Garg & Co., who was appointed as the Auditor by the court and the said
report was required to be filed expeditiously.
Having heard the learned counsel appearing for the appellants as also the
senior counsel appearing for the respondents, we find that the dispute revolves
around within a very narrow compass. The appellants are before this Court for
proper implementation of the preliminary decree which is passed, particularly, for
implementation of the directions contained in paragraph 3, which are extracted above.
We are also of the considered opinion that since the Receiver appointed by the court
has died in the meantime, it would be necessary for the trial court to pass appropriate
orders appointing a new Receiver in place of the deceased Receiver. Such an order of
appointment/substitution shall be passed as expeditiously as possible, preferably
within a period of two months from today by the trial court. After the Receiver is so
appointed, he shall be given the custody of all the records and the accounts of the
Company, as as to enable him to place the same before the Auditor for the purpose of
auditing of all such accounts in terms of the orders passed in the preliminary decree
dated 15/10/1979. The report shall be submitted by the Auditor as expeditiously as
possible so as to enable the Trial Court to pass the final decree in accordance with
law and after hearing the counsel appearing for the parties.
The parties shall now appear before the Trial Court for further orders on
28/05/2009. Appropriate orders shall be passed by the Trial Court in terms of the
observations made herein.
Mr. Amlan Kumar Ghosh, counsel appearing for the appellants, however, has
submitted at this stage that the Trial Court is wrong in saying that the accounts be
submitted by the receiver with a report by 15.11.1979 and then the same should have
been recorded as upto 15.11.1979. We express no opinion on the same as it is the order
of the Trial Court. He may, however, approach the Trial Court with a proper
application in that regard in accordance with law.
The appeal stands disposed of in terms of the order.
The records of the trial court, which were called for and are available with us,
are also to be send back immediately, so as to made available with the trial court on or
before the next date.
New Delhi, May 20, 2009.