MATHU VARKEY Vs. PYLI VARGHESE

JUDGEMENT

(1.) In this appeal, which is directed against a preliminary decree for the dissolution of an unregistered firm and for the taking of accounts relating to it, the only question which was raised on behalf of the defendant appellant and which arises for decision, is whether the latter part of the decree can be sustained, under S.69 of the Indian Partnership Act, 1932, which may be referred to hereafter as the Act. S.69, sub-s.(1) and (2) of the Act have created a bar to certain classes of suits relating to an unregistered firm; but sub-s.(3) of S.69 has provided an exception, the relevant part of which is in these terms:

(2.) Granting that a prayer for the dissolution of a firm does not include the taking of accounts the moment the firm is dissolved by the decree passed in a suit for the dissolution of the firms, a second suit for account of a dissolved firm within the meaning of S.69 (3) (a) can be laid. It may perhaps be suggested, that the object underlying S.69 of the Act was to impose a certain disability on unregistered firm, and this is true to a certain extent; but it is fallacious to argue, that the-same object permeates also the exception in S.69 (3) (a), when the result of giving the restricted meaning to it, would be to encourage multiplicity of suits and to introduce needless technicality in procedure, without any corresponding advantage. A construction which will avoid this result is to be favoured, without doing violence to the language employed in the statute. This consideration too had weighed with the learned Judges of the Allahabad and Nagpur High Courts in the cases cited above. These, in our opinion, are weighty reasons for holding, that a prayer for the taking of accounts is implicit in the prayer for the dissolution of a firm, within the meaning of S.69 (3) (a) of the Act.

(3.) The only case which has taken a contrary view and to which our attention has been drawn, is Magan Behari Lal v. Ram Partap Singh, AIR 1939 Allahabad 535, decided by a division bench of the Allahabad High -Court which was overruled by a full bench of that court in Shibba Mal v. Gulab Rai, and so has no value as a precedent; but the learned counsel for the appellant, has adopted the reasoning in that case in support of his contention; we are clear that we cannot accept the reasoning as sound. It was pointed out by the division bench is the case cited, that dissolution of a firm being a topic dealt with in Chapter VI of the Act, there could be no greater right of accounting in a suit for dissolution, than is provided by S.48 of the Act, which, as the learned Judges interpreted, did not treat the defendant partner, as an accounting party. They even laid down, that Order XX, R.15 of the Civil Procedure Code must be amended, so as to give effect to the restricted interpretation of S.69 (3) (a) of the Act, which is a later enactment. They held, that even in a suit for the dissolution of a firm in this restricted sense, an account has to be taken within the limited scope of S.48, and a receiver can be appointed for the purpose, but only, that the relief for making the defendant an accounting party has to be refused. We are in respectful agreement with the following observations of Vivian Bose, J. in Damodhar Gulabrao Chohan v. Khushal Laxman Marathi Teli, though not made with specific reference to Magan Behari Lal v. Ram Partap Singh: