S.V.S. Davey Sons vs Liberty Dry Cleaners

Venkataswami, J.—These two civil revision petitions under Article 227 of the Constitution of India arise out of R.C.O.P. No. 2439 of

1974, on the file of the Xth Judge, Court of Small Causes, Madras.

Brief facts arc the following:

The petitioner-firm filed R.C.O.P. No. 2439 of 1974, for eviction of the respondent, on the grounds of additional accommodation, conversion and

acts of nuisance. The learned Rent Controller ordered eviction on all the grounds. The respondent tenant preferred an appeal, and the order of

eviction was set aside. The petitioner/landlord, aggrieved by the dismissal of the eviction petition by the Appellate Authority, preferred a revision

petition in this Court in C.R.P. No. 2048 of 1978, this Court allowed the said civil revision petition and ordered eviction on the ground of nuisance.

The tenant/respondent preferred an appeal to the Supreme Court and the Supreme Court, in Civil Appeal No. 79 of 1980, dismissed the said

appeal, by judgment dated 12.7.1990 and granted time till 31.1.1991 to vacate the premises, on condition of the respondent filing in undertaking in

the Supreme Court within four weeks from 12.7.1990. That it shall not induct any other person in the suit premises and shall handover vacant and

peaceful possession of the demised premises to the landlord on or before 31.1.1991. The Supreme Court also further held that on the failure of the

tenant filing such an undertaking within the stipulated time, the decree shall become executable forthwith. It is common ground that the

respondent/tenant did not file the undertaking and consequently the decree for eviction became executable on and from 12.8.1990. As the

tenant/respondent did not file the undertaking as directed by the Supreme Court, the petitioner filed E.P. No. 638 of 1990, praying the executing

court to issue warrants for delivery of vacant possession of veranda and two rooms in the front in premises bearing old Door Number 57, New

Door Number 15, Sir Theyagaraja Road, T. Nagar, Madras-600017. When that execution petition was pending, the respondent/tenant filed an

application, namely M.P. No. 1052 of 1990, purporting to be one u/s 47 of the Civil Procedure Code, contending that the individual partners of

the respondent-firm should have been brought on record, and, since the petitioner-firm has already transferred is ownership of the premises in

question to one of its partners, namely, Harihar Davey, after dissolution, the decree cannot be executed by the decree-holder-firm, which is no

longer in existence.

The executing court rejected the first contention of the respondent herein, holding that inspite of the petitioners demand for the names and

addresses of the partners of the respondent-tenant (firm) during the pendency of the R.C.O.P. neither the names of the partners were given nor

whispered in the counter statement that their''s was a partnership concern, and, therefore, they are estopped from raising that pica now. However,

the executing court accepted the second contention of the respondent tenant and held that the decree cannot be executed by the firm. Consequent

to the order passed in M.P. No. 1052 of 1990, the executing court dismissed the E.P. filed by the petitioner by an one line order''. The petitioner

preferred a revision under Article 227 of the Constitution of India, questioning the correctness of the order of the executing court dismissing E.P.

No. 638 of 1990 and preferred an appeal to the appellate authority in R.C.A. No. 438 of 1991, on the file of the VIIIth Judge, Court of Small

Causes, Madras, against allowing M.P. No. 1052 of 1990.

When C.R.P. No. 2234 of 1991 filed against the order in E.P. No. 638 of 1990 came up for final disposal, after hearing learned Counsel on

both sides for some time, it was felt that the appeal filed by the petitioner before the Appellate Authority (VIIIth Judge, Court of Small Causes,

Madras) in R.C.A. No. 438 of 1991 must be transferred to this Court and heard along with C.R.P. No. 234 of 1991. Learned Counsel on both

sides agreed for that course. Accordingly, by order dated 23.7.1993, direction was given to the appellate authority to send all the papers in

R.C.A. No. 438 of 1991. On receipt of the papers in R.C.A. No. 438 of 1991, it was numbered as C.R.P. No. 2195 of 1993, and, by consent

of learned Counsel on both sides, C.R.P. No. 2195 of 1993 was heard along with C.R.P. No. 2234 of 1991.

Before going into the questions of law advanced before me, I must state that C.R.P. No. 2234 of 1991 was allowed exparte and subsequently

the ex parte order was set aside on the ground that notice was not properly served on the respondent. At the time of final hearing of both these

civil revision petitions, learned Counsel for the petitioner and the learned Senior Counsel for the respondent appeared and advanced arguments.

Mr. M.N. Padmanabhan, learned Counsel appearing for the petitioner, submitted that the court below went wrong in holding that the petitioner

firm was dissolved during the pendency of the civil revision petition in this Court, and, as per the partition entered into among the partners, the

premises in question was allotted to one Harihar Davey and the said Harihar Davey should have been brought on record to continue the

proceedings and the order obtained in this Court in C.R.P. No. 2048 of 1978 was by suppressing the dissolution of petitioner''s partnership firm.

He also submitted that the view taken by the court below on the scope of Section 47 of the Indian Partnership Act was not correct. His further

submission was that a transferee of a decree or a subsequent purchaser of a property can continue the execution proceedings and, therefore, the

view taken by the court below, that the decree cannot be executed, was not correct. According to the learned Counsel, u/s 47 of the Indian

Partnership Act, unfinished proceedings can be continued in the name of the co-owner, and the contrary view taken by the court below cannot be

sustained. It was further contended that the executing court cannot go behind decree, and in particular, in this case the respondent having failed to

file an undertaking as directed by the Supreme Court, cannot be permitted to file an Application u/s 47 of the Civil Procedure Code. Lastly, he

contended that Article 227 of the Constitution of India should be invoked to avail abuse of process of court. In support of his contentions Mr.

M.N. Padmanabhan placed reliance on the following decisions : Motilal v. Sarup Chand AIR 1937 Bom. 81, Saligram Ruplal Khanna and

Another Vs. Kanwar Rajnath, , Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Others, , V. Shanmugham and Anr. v. Carona Sahu Co. Ltd.

(1991) 1 L.W. 349 and V. Shanmugha Mudaliar Vs. IX Assistant Judge, City Civil Court and Another, .

Mr. G. Subramaniam, learned Senior Counsel appearing for the respondent, submitted that the view taken by the court below is unassailable,

and the failure of the petitioner to inform this Court when the civil revision petition was disposed of, about the dissolution of the firm was fatal to the

petitioner further proceeding with the matter. He also submitted that Article 227 of the Constitution of India cannot be invoked merely because the

court below has committed an error of law. According to the learned senior counsel, the contention that a subsequent purchaser of the property

can continue the eviction proceedings by executing the eviction order is contrary to a decision of this Court in Syed Shafee and Another Vs. S.

Asmath Basha Another, . In support of his contentions, he placed reliance on some mere decisions also. They are : Mohan Ram v. Sundararamier

1960 M.W.N. 389 : AIR 1960 Mad. 377, Vedanayagam Vs. Janaki Ammal, and R. Mohamood v. Ebrahim Saifuddin and Co. A.I.R 1962 Mad

3 : 94 L.W. 387.

I have considered the rival submissions.

Before dealing with the questions of law, I would like to stale that this is a case of clear abuse of process of court by the respondent-tenant. The

petitioner-landlord, who obtained an order of eviction as early as on 28.10.1976, is still knocking at the doors of the court for getting vacant

possession of the premises in question, in spite of the judgment of the Supreme Court.

The facts are not in dispute. The eviction order was passed on 28.10.1976. Appeal against the eviction order was allowed on 17.1.1978.

Dissolution of the petitioner''s partnership firm took place on 31.3.1979. The civil revision petition (C.R.P. No. 2048 of 1978) was allowed by this

Court, granting an order of eviction on the ground of nuisance, on 26.10.1979. A partition deed was entered into on 30.11.1979, and the same

was registered on 7.12.1979. The registration was completed on 20.12.1979. The respondent-tenant filed SLP before the Supreme Court on

11.1.1980. The Supreme Court dismissed the appeal preferred by the tenant on 12.7.1990.

It is in evidence that notwithstanding the dissolution, the respondent-tenant was paying rents in the name of the partnership firm, and the

cheques were encashed in the account maintained in the name of the petitioner''s partnership firm. In the partition deed, the suit premises was

allotted to Harihar Davey, and the other partners have agreed to continue the proceedings till the allottees gets possession. It is also not in dispute

that there is no winding up of the firm. That being the position, whether Section 47 of the Indian Partnership Act will come to the rescue of the

petitioner, will have to be considered.

In Motilal v. Samp Chand AIR 1937 Bom. 81, a learned single Judge of that High Court, on the scope of Section 47 of the Partnership Act,

held as follows:

Though the dissolution of a firm causes a dissolution of the partnership between the partners, the partnership still subsists, but merely for the

purpose of winding up its business and adjusting the rights of the partners inter se, and for this purpose the authority of the partners to bind the firm,

and all their other mutual rights and obligations, continue notwithstanding the dissolution. The power of each partner, however, extends only so far

as it is necessary to wind up the affairs of the firm and to complete transactions already begun. If a debt is owing to a firm, payment by the debtor

to any one of the partners extinguishes the claim of all the partners and discharges the debtor, even though a particular partner of a third person is

appointed to collect the debts owing to the firm, and whether the debtor is aware of such appointment or not. Any partner of a dissolved firm can

therefore recover payment of a debt due to the firm. He can effectually release the debtor and also give a valid receipt for the debt. But neither the

release nor the receipt will be binding on his co-partners if the receipt is given, or the releasing partner acts, in fraud of his co-partners and in

collusion with the debtor. It is not a necessary act in the winding up of a dissolved firm of a partner to create a ''novatic'' in respect of debt owing

to the firm. That is not recovering a debt, but really continuing ii through somebody else as the debtor. His partners may previously consent to it or

subsequently ratify on acquiesce in it; otherwise it is not binding upon them. But even assuming for the sake of argument that the making of a

nevatio"" is a necessary act in the winding up, it will still not be binding upon the co-partners, if it is tainted by fraud or collusion. So, a partner

cannot, on his own authority, bind his co-partners by allowing moneys due by one firm to be paid by another firm with which his co-partners have

no concern.

In Saligram Ruplal Khanna and Another Vs. Kanwar Rajnath, , their Lordship of the Supreme Court, on the scope of Section 47 of the Indian

Partnership Act, held as follows:

According to Section 47 of the Indian Partnership Act after the dissolution of the firm the authority of each partner to bind the firm and the other

mutual rights and obligations of the partners continue notwithstanding the dissolution so far as maybe necessary to wind up the affairs of the firm

and to complete transactions begun but unfinished at the time of dissolution but not otherwise. The word ''transaction'' in Section 47 before not

merely to a commercial transaction of purchase and sale but would include also all other matters relating to the affairs of the partnership. The

completion of a transaction would cover also the taking of necessary steps in connection with the adjudication on a dispute to which the firm before

its dissolution was a party. In the instant case after dissolution, the partnership subsisted merely for the purpose of completing pending transactions,

winding up the business and adjusting the rights of partners and for these purposes and these only the authority, rights and delegations of the

partners continued.

From the above decisions, it can be seen that the dissolution of a partnership firm will not liable the partnership continuing action in all cases

initiated before dissolution. In this case, we have noticed that the eviction order was obtained before dissolution, and this Court confirmed the

order of eviction, passed by the Rent Com roller by reversing the judgment of the appellate authority. Further, we have noticed that the rents were

paid in the name of the partnership firm, and that shows that there was no winding up pursuant to the dissolution. Apart from that, Section 47 of the

Indian Partnership Act enables the partners notwithstanding the dissolution to continue the unfinished proceedings in the name of the firm. Further,

paragraph 12 of the partition deed dated 30.11.1979. Inter alia states that all proceedings commenced before the dissolution shall be continued in

the same way until the firm is finally wound up. That being the position, it cannot be said that the petitioner cannot execute the decree granted in

favour of the firm.

In Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Others, , their Lordships have considered the effect of a direction by the court to give an

undertaking while granting time to the tenant to vacate the premises. Their Lordships have held as follows:

...Where an order of eviction passed against a firm was confirmed by the Supreme Court and it was ordered that the order of eviction should not

be executed for a period of six months on firm''s riling usual undertaking in the court and the order was not complied with inasmuch as ho such

undertaking was given nor the premises were vacated by the firm, it was held that the firm and its partners were bound to comply with the order of

Supreme Court and the order cannot be defeated by the sons and grandsons of the partners of the firm by filing a suit for permanent injunction

against landlords and one of the partners restraining them from ejecting the said plaintiffs and by obtaining order of temporary injunction in that suit.

The plaintiffs in the said Suit must be held to have deliberately hot objected to Supreme Court passing the order and thereby allowed the firm to

mislead the court. Though, contempt is a serious matter and it interferes with the right of these who are found guilty of contempt, no court should

allow any party to mislead the court and thereby frustrate its order. Thus, in such a case, assuming that the firm and its partners could not be found

guilty of violation any undertaking as there was none, in the facts and circumstances of the ease the court should ensure compliance with its order

and see that vacant and peaceful possession is given to the landlord in the interest of justice. It was further observed by the Supreme Court that

save as aforesaid there would be no other order on the petition for contempt.

The above extract shows that the executing court should ensure compliance of the order of the Supreme Court and sec that vacant and

peaceful possession is given to the landlord in the interest of justice.

In this case, the order of the Supreme Court reads as follows:

That the appeal above-mentioned be and is hereby dismissed, but the appellant herein be and is hereby allowed time to vacate the premises in

dispute till 31st January, 1991 subject to appellant herein filing in this Court an undertaking within four weeks from this the 12th day of July, 1990

to the following effect:

(i) That the appellant herein shall not induct any other person in the suit premises and shall handover vacant and peaceful possession of the said

premises to the respondent-landlord herein on or before the 31st day of January, 1991.

(ii) That the appellant herein shall pay to the respondent-landlord herein arrears of rent, if any, within one month from this the 12th July, 1990 and

shall pay to the respondent landlord future compensation, for the use and occupation of the suit premises month by month before the 10th of every

month.

That in the event of the appellant herein failing to comply with any one or more of the conditions stated above or if the undertaking is not filed as

required within the stipulated time the decree for eviction shall become executable forthwith.

In V. Shanmugha Mudaliar Vs. IX Assistant Judge, City Civil Court and Another, , Srinivasan, J. has considered the scope of Article 227 of

the Constitution of India and after referring to number of judgments of various High Courts and Supreme Court, teamed Judge has observed that

Article 227 must be invoked where there was a clear 3busa of the process of court.

The discussion made so far is sufficient to come to a conclusion that the order of the court below cannot be sustained; in holding that the

decree for eviction cannot be executed, and the respondent/tenant has accused the process of the court in not obeying the order of the Supreme

Court, while getting time for vacating the premises. Therefore, this is a fit case for exercising the jurisdiction under Article 227 of the Constitution of

India, The cases relief on by the learned. Senior Counsel for the respondent are not apposite to the facts of this case.

The reliance placed by Mr. G. Subramaniam on the decision reported in Mohan Ram v. Sundararamier 1960 M.W.N. 389 : AIR 1960 Mad.

377 is of no help as in that case the question referred to the Full Bench and the answer given by the learned Judges am to the effect that under

certain exceptional circumstances, an executing court can go behind the decree and refuse to execute a decree which is both opposed to public

policy and to enacted law. That is not the situation here as could be seen from the fact narrated above.

The next case relied on by the learned Senior Counsel was, Syed Shafee and Another Vs. S. Asmath Basha Another, . Here again, a learned

single Judge of this Court has held that in proceedings under Rent Control Act, the purchaser of the suit premises must be brought an record and

that the criminal landlord cannot continue the proceedings without doing so. The learned Judge also held that subsequent events must be taken note

of. On the facts of this case, the case cited above is again of no help.

On the scope of Section 47 of the CPC the case relied on by the learned senior counsel is the one reported in Vedanayagam Vs. Janaki

Ammal, . In that case, Ratnam, J. has observed as follows:

...The entrustment of the powers of execution to the Rent Controller and the conferment of all the powers of a civil court on him with reference to

such execution would take in all the provisions of Order 21 of the CPC as well as of Section 47....

Here, the application u/s 47 of the CPC was not dismissed on the ground that no such application will lie, but on merits. Therefore, that decision

also does not apply to the facts of this case.

Lastly, learned Senior Counsel placed reliance on the decision reported in R. Mohamood v. Ebrahim Saifuddin and Co. AIR 1962 Mad 3 : 94

L.W. 387, wherein, Mohan, J., as the learned Judge then was, has held that under Article 226 of the Constitution of India, this Court can call for a

finding from the lower authority instead of taking evidence in relation to factual matters. No such circumstance arises here.

In view of the discussion made above, it is clear that the respondent/tenant has abused the process of the court, arid also in view of the fact

that Section 47 of the Indian Partnership Act, has not been property appreciated by the court below, 1 hold that the order of the court below in

M.P. No. 1052 of 1990 cannot be sustained. Accordingly, C.R.P. No. 2195 of 1993 is allowed. No costs.

Consequent to the order of the court below in M.P. No. 1052 of 1990, the Execution petition itself was dismissed by an ''one line order'' after

referring to the order in M.P. No. 1052 of 1990. As the order passed in M.P. No. 1052 of 1990 is set aside, the order dismissing the execution

petition is also set aside, and the court below is directed to restore E.P. No. 638 of 1990 on its file and dispose of the same within six weeks from

the date of receipt of a copy of this order and report to this Court about the disposal of the said execution petition without fail. C.R.P. No. 2234 of

1991 is allowed as indicated above. No costs.