IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 FAO.No. 200 of 2005() --------------------- AGAINST THE ORDER DATED 22/03/2005 IN IA 1914/01 IN OS.125/2001 of SUB COURT, TIRUR .................... APPELLANT/PETITIONER -------------------------------------- K.MOHAMMED SALIH NAHA, AGED 45 YEARS, SON OF AVUKOYA NAHA, RESIDING AT SAFA MANZIL, CALIICUT ROAD, POKKUNNU KINASSERI AMSOM AND DESOM KOZHIKODE DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. M/S.NAHA SHOPPING COMPLEX, PAYANINGAL (DIED) JUNCTION, REP. BY MANAGING PARTNER AVUKOYA NAHA, PARAPPANANGADI, NEDUVA AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. K.NAFEESA, AGED 41 YEARS, WIFE OF P.V. AHAMEDKUTTY, ADVOCATE, MANJERI AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 3. C.P.HAMZATH, AGED 37 YEARS, SON OF K.AVUKOYA NAHA, PARAPPANANGADI AMSOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4. C.P.AYISHAKUTTY, AGED 32 YEARS, W/O.DR.HANEEFA, SHIFA HOSPITAL, KALLAMPARA, FEROKE AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 5. C.P.ZUBAIR, AGED 30 YEARS, SON OF K.AVUKOYA NAHA, RESIDING AT NAHA MANZIL, PARAPPANANGADI AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 6. C.P.SAINABA, AGED 28 YEARS, W/O.A.M.A NAZAR, ETISALAT, P.B.NO.14, FUJAIRAH, UNITED ARAB EMIRATES. 7. C.P.ABDURAHIMAN, AGED 24 YEARS, SON OF K.AVUKOYA NAHA, PARAPPANANGADI AMSOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 8. C.P.ABDULMANNAN, AGED 25 YEARS, SON OF K.AVUKOYA NAHA, PARAPPANANGADI AMSOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 9. C.P.JASEENA AGED 22 YEARS, W/O.ABDUL MAJEED E.P, EDAKKULATH PUTHUPPARIYIL HOUSE, TIRUNAVAYA AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT 10. K.KUNHIKOIDEENKUTTY NAHA @ KUNHIBAPPU, SON OF LATE AVUKOYA NAHA AGED 40 YEARS, KACHERIPADY, VENGARA MASOM & DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT. 11. C.P.PATHEEVI, W/O.LATE AVUKOYA NAHA, AGED 60 YEARS, ANCHAPPURA, PARAPPANANGADI AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 12. U.K.ASMA, W/O.LATE AVUKOYA NAHA, 60 YEARS, NEDUVA VILLAGE, CHERAMANGALAM, PARAPPANANGADI AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. IT IS RECORDED THAT THE FIRST RESPONDENT DIED AND THE APPELLANT AND RESPONDENTS 2 TO 12 ARE HIS LEGAL REPRESENTATIVES VIDE ORDER DATED 1.2.2007 IN I.A.309/2007. ADV. SRI.BABU KARUKAPADATH FOR 4,7-9,11,12. SRI.K.A.NOUSHAD FOR R4,7-9,11 & 12. SRI.K.V.SOHAN FOR R2 SRI.R.SUDHISH FOR R2 SRI.BABU KARUKAPADATH FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 200 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Raman, J, This is an appeal against an order dismissing an application for appointment of a receiver. The appellant is the plaintiff in the suit. The suit is one for dissolution and rendition of accounts of the partnership firm, “Naha Shopping Complex”, to which plaintiffs and defendants were partners. The second defendant was the Managing Partner. He died during the pendency of the suit. Several allegations were raised against the second defendant and contended that he acted in a manner to destroy the assets of the firm and it would ultimately result in irreparable loss in case receiver is not appointed to manage the properties. 2. Respondents resisted and contended that the partnership was dissolved on 24.9.1998, that the second defendant had made constructions in the property described as FAO. 200/2005. 2 C schedule and the firm had constructed only two buildings in the property and that the claims of the partners were settled at the time of dissolution of the firm. Properties after dissolution vested on the second defendant. The second defendant had executed a registered deed wakffing an item and also executed gift deeds to his children and the donees had taken possession. It is also contended that even the plaintiff had gifted the properties. Thus no properties are available to be kept under receivership and the application was dismissed. 3. Exts.A1 to A10 were marked on the side of the plaintiff and Exts.B1 to B34 were marked on the side of the respondents. 4. The point considered by the court below was as to whether it is just and convenient to appoint a receiver. On an over all analysis of the materials produced in the case, the court below found that the petitioner was not successful enough to produce any document to prove that the firm was carrying on any business after FAO. 200/2005. 3 24.9.1998. Exts. B6 and B23 documents evidences that the construction had been done in the gifted property. One item was given as wakaf. On an over all consideration, prima facie, it was found that there are no sufficient grounds to come to the conclusion that the firm is still carrying on any business and the plaint schedule properties are available as assets of the firm. In the above circumstances, the application for receivership was dismissed. Against which, the present appeal is preferred. 5. We find that the order impugned was passed on 22.3.2005. At this distance of time, the question of appointing any receiver on the grounds as alleged in the receiver application does not survive for consideration. It is also not shown that the observations made by the court below even for the limited purpose of a prima facie case is wrong. The court below has considered the grounds urged and found that a case has not been made out to appoint a receiver and that the continuance of the firm after 24.9.1998 is not established on the evidence on record. FAO. 200/2005. 4 In the circumstances, we find no reason to interfere with the impugned order. There is no merit in the appeal. The same is dismissed. But the observations made above will not affect the trial of the suit and the finding thereon, in case the suit is still pending. P.R. Raman, Judge P. Bhavadasan, Judge sb.