JAGJIVAN MULCHAND CHOKSHI Vs. MANILAL MOHANLAL SONI

JUDGEMENT

(1.) Instant appeal under Section 100 of the Code of Civil Procedure ('the Code' for short) is directed against the Judgment and decree dated 11.12.1997 rendered in Regular Civil Appeal No.35 of 1997 by the learned Joint District Judge, Banaskantha District at Palanpur by which the appeal filed by deceased respondent who is represented through his heirs and legal representatives in this appeal came to be allowed and thereby the Judgment and final decree dated 2/5/1997 recorded in Regular Civil Suit No.191 of 1966 by the learned Civil Judge (S.D.)., Palanpur decreeing the suit filed by the appellant for an amount of Rs.1,04,838.75 Ps. together with interest at the rate of 6% per annum from the date of the suit till its realization on the basis of the Commissioner's report at Ex.124 came to be quashed and set aside and the matter was remanded to the Court of learned Civil Judge (S.D.)., Palanpur to decide it afresh after hearing both the parties and after considering the objections Ex.51 and also permitted the respondents to prove or disprove the account- that may be submitted by the parties with regard to the partnership firm and also cross objections at Ex.11 filed by the appellant was rejected with a liberty to the appellant to agitate the said question regarding interest before the learned trial Judge.

(2.) For the sake of eovenience, the parties hereafter referred to as they are arrayed in the trial court.

(3.) The facts leading to the present Second Appeal in nutshell are as under: The plaintiff and deceased defendant were partners of the firm in the name of Bhagyoday Engineering Company at Palanpur from 19.1.1960 to 9.9.1965. The said firm came to be dissolved with the consent of the deceased defendant. On the day of the dissolution of the firm both of them have agreed to act for goodwill and accounts as per the writing made on the same day. As per the averments made in the plaint, the deceased defendant refused to render the account, as per the said writing dated 9.9.1965. The plaintiff therefore filed suit for taking accounts of the partnership firm Bhagyoday Engineering Company. The said suit was contested by the deceased defendant by filing written statement. The learned trial Judge who conducted the suit, vide judgment dated 29.7.1975 dismissed the suit filed by the plaintiff.