LAXMI NARAIN SHARMA Vs. FIRM SRINIWAS AND COMPANY

JUDGEMENT

(1.) THE present revision petition has been filed by the petitioner -judgment -debtor under Sec. 115 of CPC, challenging the order dt. 23.11.2010 passed by the Additional District Judge, Fast Track No. 2, Alwar (hereinafter referred to as "the executing Court") in execution petition No. 3/2004, whereby the executing Court has dismissed the application of the petitioner to drop the execution proceedings on account of death of one of the partners of the respondent -firm. In the instant case it appears that the respondent -firm alongwith its partner Shriram had filed the suit against the petitioner -defendant for the recovery of Rs. 3,05,267/ - with interest, stating interdict that the plaintiff was a partnership firm registered in the Partnership Act and its partners were Sriniwas and Shriram. The said suit was resisted by the petitioner -defendant. However the trial Court decreed the suit, directing the petitioner -defendant to pay a sum of Rs. 1,87,554.60/ - with interest @ 12% per annum from 30.08.1995 till payment. Being aggrieved of the said judgment and decree passed by the trial Court, the petitioner preferred the first appeal before this Court which is pending for hearing. It is not disputed that in the said first appeal the petitioner had sought for stay of execution proceedings, however the said application was rejected by the Court. Under the circumstances, the respondents -plaintiffs -decree holders filed the execution petition being No. 3/2004 before the executing Court. In the said execution proceedings, the property of the petitioner was attached and sold by auction sale. The said sale has also been made confirmed by the Court. However, the petitioner submitted an application before the executing Court for dropping the proceedings on the ground that one of the partners deceased Shriram had already retired from the firm on 30.09.1999, and therefore the firm had stood dissolved on the date of decree. The executing Court rejected the said application of the petitioner vide the impugned order dt. 23.11.2010. Hence the petitioner has preferred the petition invoking the revisional jurisdiction under Sec. 115 of CPC.

(2.) THE learned Senior Counsel Mr. J.P. Goyal, for the petitioner relying on the provisions contained in the Partnership Act more particularly Sections 41 & 42 thereof, submitted that on the retirement of the one of the partners of the partnership firm, i.e. Shriram, the firm had already got dissolved automatically on the date of decree, and therefore the execution proceedings were not maintainable. The counsel has relied upon the judgment of the Apex Court in case of Mohd. Liquiddin & Anr. vs. Kamala Devi Misra (Dead) By LRs. & Ors., : 2010(1) WLC 189, in support of his submissions that in absence of any agreement to the contrary, on the death or retirement of one of the partners, the partnership firm is deemed to have dissolved.

(3.) IN the instant case, it is not disputed that the original suit was filed by the respondent -partnership firm alongwith its partner Shriram, and that the said suit was decreed against the petitioner, whereby the petitioner was directed to pay a sum of Rs. 1,87,554.60/ - with interest @ 12% per annum. It is also not disputed that the said decree was challenged by the petitioner before this Court by way of filing first appeal, which is pending for hearing and that the application seeking stay on execution proceedings filed by the petitioner was rejected by the Court. It is also not disputed by the petitioner that the executing Court having proceeded with the execution proceedings, has already sold out the properly of the petitioner and the sale has also been confirmed. The only contention raised by the learned Senior Counsel for the petitioner is that the at the time of passing of the decree, one of the partners i.e. Shriram had already retired on 30.09.1999 and therefore the decree was not executable. The Court does not find any substance in the said submission made by the learned Senior Counsel Mr. Goyal. From the impugned order passed by the executing Court and from the certified copies of the partnership deed dt. 01.10.1999 and 06.04.1999 produced by the learned counsel Mr. Mohit Gupta, for the respondent -firm for the perusal of the Court it appears that during the pendency of the suit one more partner named Purushotam Agarwal was also made partner in the partnership firm and entry with regard to the said change was also made in the Office of Registrar of Firms. It is true that the partner Shriram had retired from the said firm on 30.09.1999 and the said change was also entered in the record of Office of Registrar of Firm, however as per one of the clauses of the said deeds, it was agreed between the partners that upon retirement of one of the partners, the partnership shall not be automatically dissolved or come to an end, but may be continued by the remaining partners. In the instant case though the partner Shriram had retired from the firm, the other two partners had continued the partnership firm, and therefore it could not be said that on his retirement, the firm had got dissolved automatically. The executing Court having rightly appreciated the provisions contained in the Partnership Act in the light of the documents of record, the Court does not find any illegality or infirmity in the impugned order passed by the executing Court. In that view of the matter, the revision petition being devoid of merits deserves to be dismissed and is accordingly dismissed.