1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5442 OF 2008 Shreedhar Govind Kamerkar ...Petitioner vs. 1)Yeshwant Govind Kamerkar 2)Prabhakar Govind Kamerkar ...Respondents Shri Tulzapurkar, Sr.Counsel a/w Mr.P.N.Patwardhan and Mr.Kantilal Kanojia for the petitioner Mr.N.V.Walawalkar, Sr.Counsel with Mr.P.G.Karande for respondent nos.1 and 2 CORAM :A.S.OKA,J. DATE :OCTOBER 8, 2009 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. The petition arises out of execution proceeding. The execution proceeding arises out of a decree passed in a suit filed by the first respondent against the petitioner and the second respondent. The petitioner was the first defendant in the said suit. The suit was for dissolution of the partnership. The suit was dismissed by the trial court. Against the decree of dismissal of the suit, an Appeal was preferred before this court. This court 2 allowed the appeal by passing the following operative order : “Appeal is allowed. Judgment of the trial court to the extent of dismissing the suit is set aside and the suit has to be decreed as follows : a) It is declared that the plaintiff and defendant nos. 1 and 2 have 1/3rd share each in the business of Deepak General Stores carried on the ground floor in Navalkar Building at N.C.Kelkar Road, Dadar, Mumbai 400 028 and also equal tenancy rights in the premises where Deepak General Stores business was being carried out ; b) It is declared that partnership business of Deepak General Stores at the aforesaid premises stood dissolved as from July 1981. c) The accounts of the partnership business of Deepak General Stores shall be made and the plaintiff and the defendants will be entitled to amount found to their share at the foot of the account. d) Partnership premises where Deepak General Stores was being run shall be partitioned by metes and bounds and they will be entitled to possession 3 of 1/3rd share and will be placed in possession. e) There will be an enquiry into the mesne profits from the date of the suit till delivery of possession in respect of Deepak General Stores and that of the premises.” 2 It must be stated here that a Special Leave Petition was filed by the petitioner before the Apex Court against the decree passed by this Court and the Apex Court has dismissed the same. 3 The dispute is as regards the execution of the clause (d) of the operative part of the order passed by this Court which directs that the premises in which the partnership business was being carried on shall be the divided by metes and bounds and the three brothers- partners shall be given possession of 1/3rd equal share each. 4 The first respondent -plaintiff filed an application for execution of the aforesaid decree. In the said execution application he made an application praying for an appointment of a Court Commissioner for the purposes of preparing a plan for dividing the business shop premises into three equal parts in terms of clause (d) of the operative part of the decree. The present petitioner filed a chamber summons containing various prayers including a prayer for dismissal of the execution application. The application made by the first respondent and the chamber summons taken out by the petitioner 4 were decided by a common Judgment and Order dated 6th June 2008. The executing court, by the said Judgment and Order, allowed the prayer for appointment of a Court Commissioner for suggesting partition. Accordingly, an architect was appointed as the Court Commissioner. The chamber summons taken out by the petitioner was rejected. By this writ petition under article 227 of the Constitution of India, the petitioner has challenged the aforesaid order dated 6 th June 2008. 5 The learned counsel for the petitioner submitted that the decree is a preliminary decree of dissolution of partnership. He submitted that the said decree is not capable of being executed. He submitted that the final decree which may be passed on the basis of his preliminary decree will be an executable decree. He submitted that in any event , before any steps can be taken for implementing clause (d), the accounts of the partnership business will have to be made in terms of clause(c) of the decree. He relied upon section 48 of the Indian Partnership Act, 1932 (hereinafter referred to as the said Act). He submitted that the assets of the partnership will have to be applied in the manner provided by the said section 48 of the said Act. He pointed out that as per rule 15 of Order XX of the Code of the Civil Procedure, 1908 (hereinafter referred to as the said Code),the decree is a preliminary decree. He submitted that the decree being the one of dissolution of partnership, it is a preliminary decree. He submitted that clause (d) will have to be read with clause (c). He submitted that independent of clause (c), the clause (d) 5 cannot be considered. He pointed out that while dismissing the special leave petition filed by the petitioner, the Apex Court has held that the leasehold rights in respect of the business premises of the partnership firm form part of the assets of the firm. He submitted that the question of distributing the same will not arise till the accounts in terms of clause (c) of the decree of the partnership business are made. He submitted that thereafter the assets of the firm including leasehold rights will have to be applied in the manner provided by section 48 of the said Act. He submitted that after applying the assets as aforesaid, only the residue can be distributed amongst the partners. He submitted that once the leasehold rights in respect of the shop premises are held to be partnership property, without following due procedure, the same cannot be divided. He placed reliance on the decision of the Apex Court in case of Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and others (AIR 2007 SC 1077). He also relied upon the decision of the Apex Court in case of Annasaheb Rajaram Nagane and another Vs. Rajaram Maruti Nagane and others [2001 (3) Mh.L.J. 53) and submitted that after passing of a preliminary decree for partition ,the decree cannot be made effective without there being a final decree. He also relied upon the decision of Madras High Court in the case of Ramanathan Chetty vs. Alagappa Chetty and others (AIR 1930 Madras 528) in support of his arguments. He also relied upon the decision of Apex Court in case of Addanki Narayanappa and another vs. Bhaskara Krishnapp (dead)by his heirs (A.I.R. 1966 SC 1300) and submitted that the impugned order be set aside. 6 6 The learned counsel for the respondents supported the impugned order. He relied upon a decision of the Apex Court in the case of Bikoba Deora Gaikwad and others vs.Hirabai Marutirao Ghorgare and others [(2008) 8 SCC 198] in support of his submissions. He submitted that no interference is called for. He submitted that the operative part of the decree passed by this Court shows that this Court passed a final decree of partition of the shop premises. He therefore submitted that no interference is called for. 7 I have given careful consideration to the submissions. The clause (d) of the operative part of the decree passed by this court clearly provides that the business premises of the partnership shall be divided by metes and bounds. It further provides that the three partners shall be entitled to possession of 1/3rd share each in the said business premises. The said decree was challenged by the petitioner by preferring a special Leave Petition. The special leave petition was dismissed by the Apex Court. The Apex Court specifically held that the tenancy rights /leasehold rights in respect of the business premises form part of the assets of the firm. However the Apex Court has not disturbed the clause (d) of the decree passed by this court. The argument of the learned senior counsel appearing for the petitioner is that the accounts of the firm will have to be made and the assets of the firm including the business premises will have to be applied in the manner provided under section 48 of the said Act. The submission is that the business premises cannot be divided into 7 three separate shares. The said submission cannot be accepted. The executing court cannot go behind the decree. The argument advanced by the learned senior counsel appearing for the petitioner is an argument on merits of the decree which cannot be considered in execution. It is pertinent to note that the decree passed by this court which is sought to be executed has attained finality. Even after recording a finding that the leasehold rights in respect of the business premises form part of the assets of the firm, the Apex Court has not disturbed the decree of division of the said premises passed by this court. The decision of the Apex Court in the case of Addanki (supra) reiterates the principles which form part of section 48 of the said Act. In view of the confirmation in special leave petition of the decree passed by this Court , the said decision will not help the petitioner. For the same reason, the decision of the Madras High Court will not help the petitioner. 8 As far as clause (d) is concerned, the same will have to be implemented by appointing a Court Commissioner for suggesting partition. The Commissioner has been appointed in exercise of powers under rule 13 of Order XXVI of the said code. The Commissioner will have to visit the property after notice to the parties and will have to submit a report. The parties will be entitled to file their objections to the report including an objection that the premises are not capable of being divided. In short, the executing court will have to follow the procedure provided by the rule 14 of Order XXVI of the said code. It is obvious that the executing court will 8 be bound by sub rule 2 of rule 18 of Order XX of the said code. 9 Hence, it is not possible to interfere with an order by which a Court Commissioner has been appointed in exercise of powers under rule 13 of Order XXVI of the said Code for suggesting partition in terms of clause(d) of the decree passed by this court. The objections raised by the petitioner by filing chamber summons have been rightly rejected by the trial court. 10 There is no merit in the petition and subject to what is observed above, the same is rejected. 11 The learned counsel for the petitioner prays for continuation of interim relief. 12 It is directed partition shall not be effected and the petitioner shall not be dispossessed for a period of 12 weeks from today. 13 It is made clear that the trial court will proceed to deal with the report of the Court Commissioner and it will be open for the trial court to pass final order on the basis of the report of the Court Commissioner notwithstanding the continuation of aforesaid interim order. JUDGE