GAIANAN Vs. PRAVINCHANDRA

JUDGEMENT

(1.) Plaintiffs have filed this Revision application against an order passed by the learned Extra Assistant Judge, Aurangabad discharging the receiver that was appointed by the trial Court. Ordinarily, in an order of this type I would have been slow to exercise my revisional powers. However, on admitted facts it is so patently erroneous that ends of justice require that the order that has been passed by the trial Court ought to be restored. By a deed of partnership dated January 7, 1972, the plaintiffs (Petitioners) and the defendants entered into a partnership with effect from December 14, 1971, under which the plaintiffs were entitled to 65 per cent of the profits and were liable to bear 60 percent of the losses that may be incurred by the firm. It may be stated that but of the plaintiffs, plaintiffs nos. 4 and 5 are minors and they are entitled only to the benefits of the partnership to the extent of 10 per cent, respecttively in the profits of the firm, while the losses are to be borne by plaintiff No. 1 at 35% and by plaintiff No. 2 at 25%. The partnership is at will. On March 23, 1976 the plaintiffs filed a suit for a declaration that the suit partnership is dissolved and for accounts and distribution of the property in accordance with respective rights of the parties. In that suit on the application of the plaintiffs a receiver was appointed by the trial Court on July 23, 1976. In an appeal preferred by the defendants the order passed by the trial Court has been reversed by the appellate Court on the ground that the allegation made by the plaintiffs that defendants have committed defalcations has not been prima facie established and accordingly the receiver appointed by the trial Court was discharged. It is against this order passed by the appellate Court that the present revision Application is filed.

(2.) Mr. Agrawal on behalf of the plaintiffs (Petitioners) submitted that admittedly there is a partnership between the parties, that the said partnership is at will and that some of the plaintiffs are minors who are admitted to the benefits of the partnership. These facts by themselves are sufficient for appointment of a receiver notwithstanding " the fact that the court may take the view that the allegation about defalcation by the defendants has not prima facie been established. He submitted that once the partnership is admitted and it is at will as admitted by the defendants and more so when the dissolution is admitted, instead of either party to the suit being in possession of the suit properties, it should be a third party like a receiver who should be in possession so that the properties may be in the custody of the court. He, therefore, submitted that the appellate court was in error in discharging the receiver.

(3.) The partership in this case is admitted and it is also not disputed that it is at will. In fact, the dissolution has been admitted by the defendants. If that was so, then the receiver should go as a matter of course; more so; when some of the plaintiffs who are admitted to the benefits of the partership, are parties to this litigation. It is immaterial in the case of this type whether the allegation about defalcation by the defendants has prima facie been established or not. Even without that the other facts are sufficient to warrant the appointment of a receiver so that the properties of the firm which is admittedly dissolved should remain in the custody of the court.