IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 CRP.No. 1130 of 2004() ---------------------- {CMA.16/2003 OF THE PRINCIPAL SUB COURT,ATTINGAL OS.32/1982 OF THE MUNSIFF COURT,ATTINGAL (IA.467/95 & 932/99)} .................... REVN. PETITIONER(S): APPELLANTS ------------------------------- 1. K.EASWARY, KUNNUVILA VEEDU, *DIED KARUKKADA, ANDOOR, KIZHUVILAM VILLAGE. 2. M.KOCHUCHERUKKAN, DO. DO. 3. A.LEELA, DO. DO. * ADDITIONAL P4 TP P8: 4. A.VIJAYAN, KUNNUMPURATHU VEEDU, ELIYAMVILAKAM, CHEUNIYOOR P.O., VARKALA. 5. A.VIKRAMAN, KUNNUVILA VEEDU, KURAKKADA P.O., KIZHUVILAM, ATTINGAL. 6. E. SARALA, SUJITH BHAVAN, KURAKKADA P.O., KIZHUVILAM, ATTINGAL. 7. E.VALSALA, QUARTERS NO.C/215, VSSS HOUSING COLONY, THUMBA, PALLITHURA P.O., TRIVANDRUM 695 586. 8. A. VINAYAN, KUNNUVILA VEEDU, KURAKKADA P.O., KIZHUVILAM, ATTINGAL. ADDITIONAL PETITIONERS P4 TO P8 ARE IMPLEADED AS THE LRS OF THE DECEASED 1ST PETITIONER IN THE CRP 1130/04 AS PER ORDER DT. 2ND MARCH 2006 IN I.A.574 & 576/2006. BY ADV. SRI.V.P.REGHURAJ CRP.No. 1130 of 2004 :: 2 :: RESPONDENT(S): --------------- 1. R.ACHUTHAN, PLAKODU-KONATHU CHARUVILA VEEDU, KIZHUVILAM VILLAGE, ATTINGAL. 2. ANILKUMAR, KALLUMTHAZHATHU, CHENPAKULATHU VEEDU, KILIKOLLOOR, KOLLAM. 3. DILEEP KUMAR, DO. DO. 4. SUNIL KUMAR, DO. DO. 5. ANITHA KUMARI, DO. DO. 6. AJAY KUMAR, DO. DO. 7. K.S.KRISHNA SASTHRI, THATTASSERI VEEDU, SOORANADU, KUNNATHOOR. 8. R.RAGHAVAN, PLAKODUKONATHU, CHARUVILA VEEDU, KIZHUVILAM VILLAGE, ATTINGAL. 9. S.ACHUTHAN, KUNNUVILA VEEDU, ANDOOR, KURAKKADA P.O., KUZHUVILAM VILLAGE, ATTINGAL. R8 BY ADV. SRI.SIBY MATHEW & SRI.A.A.MOHAMMED NAZIR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------------ C.R.P.No.1130 of 2004 ----------------------------------------------- Dated this the 16th day of February, 2010 O R D E R The revision petitioners are defendants 3, 5 and 7 in O.S.No.32/82 on the file of the Munsiff's Court, Attingal. The above suit was filed to remove the 6th defendant, who is no more, who was managing the affairs of a cashew factory of the firm viz., M/s.Ambedkar Memorial Cashew Factory, Andoor. Previously, another suit had been instituted as O.S.No.54/79 by the same plaintiff as O.S.No.32/82 with four others for preparing a scheme for management of the above factory, belonging to the firm. That suit, after trial, was dismissed from which an appeal was preferred as A.S.No.117/81 before the Sub Court, Attingal. Pending that appeal, the second suit O.S.No.32/82, after trial, was decreed declaring the 1st defendant unfit to hold the post of the Managing Director. Under the decree, 9th defendant was appointed in the suit as the receiver to C.R.P.No.1130 of 2004 :: 2 :: manage the factory. Against the decree in O.S.No.32/82 an appeal was preferred as A.S.No.35/85. That appeal was heard along with the appeal preferred from O.S.No.54/79. A.S.No.35/85 was dismissed, and A.S.No.117/81 was allowed, reversing the dismissal of O.S.No.54/79 directing preparation of a scheme for management of the factory. The receiver appointed was directed to continue till the passing of the final decree approving the scheme. There was a second appeal against the judgment of the appellate court. That appeal was dismissed. During the pendency of the final decree proceedings, the present petitioner moved an application for removal of the receiver stating that the previous firm had been dissolved and a new firm was constituted in its place. In other words, they canvassed a case that new scheme in respect of the firm as directed under the decree was not called for and the receiver has to be removed handing C.R.P.No.1130 of 2004 :: 3 :: over the factory to the newly constituted firm. Plaintiffs in O.S.No.32/82 too moved another application for removal of the receiver imputing mis-management of the factory. Both the applications were considered together and disposed by the learned Munsiff by common order dated 13th August, 2001. The petition moved by the revision petitioners was dismissed for the reason that they did not produce any documents, nor let in any evidence to establish their case that a new firm after the dissolution of the earlier firm had been constituted. The application moved by the plaintiffs in O.S.No.32/82 was dismissed since they did not produce any material supporting the mis-management imputed against the receiver. The petitioners alone challenged the order in their I.A.No.467/95 preferring an appeal as C.M.A.No.16/03 before the Sub Court, Attingal. Learned District Judge, concurring with the conclusion formed by the court below, dismissed C.R.P.No.1130 of 2004 :: 4 :: that application. Feeling aggrieved, the revision petitioners have preferred this revision. 2. Though notice on the revision had been served on the respondents, except the 8th respondent - the receiver, others remain absent. I heard learned counsel for the petitioners and also the counsel appearing for the receiver. 3. At the time of hearing, the learned counsel for the petitioners canvassed only a limited relief for a fresh opportunity to substantiate their case that the firm had been dissolved and in its place a new firm was constituted. 4. The preliminary decree passed had directed the appointment of a Senior Advocate as Commissioner at the instance of the plaintiffs for framing a scheme for management of the factory and the firm and for settling the claims of the first plaintiff and the 7th defendant, as seen from the common judgment rendered in A.S.No.35/85 and C.R.P.No.1130 of 2004 :: 5 :: 117/81 dated 13.11.1987, a copy of which was handed over to me for perusal by the learned counsel for the revision petitioners. So much so, prima facie, it is seen, the decree granted by the court below envisages something more than the management of the factory and the firm, settling the claims of some of the parties as well. So much so, the removal of the receiver appointed by the court for running the factory belonging to the firm till a final decree is passed cannot be decided solely on the basis of the dissolution of the firm or its reconstitution. That question may have to be looked into with reference to whether a scheme in terms of the decree is to be prepared or not and also what further steps are needed to settle the rights of other co-owners the 1st and 7th defendants in the suit as directed under the decree passed by the appellate court. So, essentially, these questions can be considered only in the proceedings taken before the court in C.R.P.No.1130 of 2004 :: 6 :: continuation of the preliminary decree, irrespective of the question whether a final decree is to be passed in the suit or not in case the firm has already been dissolved. In the given facts of the case, I find, the revision petitioners' right to claim such relief should not be foreclosed by the orders passed by the two courts below, since the question of removal of the receiver appointed by the court alone, it is seen, was canvassed by the revision petitioners on the premise that the firm had been dissolved and in its place a new firm was constituted. The impugned orders declining the relief canvassed by them shall be treated as precluding them from challenging removal of the receiver alone, but not of canvassing before the court below the reconstitution of the firm, after its dissolution, for appropriate orders on the question whether a scheme has to be framed in the suit in pursuance of the preliminary decree passed earlier. I also C.R.P.No.1130 of 2004 :: 7 :: make it clear that the dismissal of the application for removal of the receiver filed by the petitioner will in no way interdict them from canvassing for appropriate reliefs taking appropriate proceedings as envisaged by law for safeguarding their interests and rights, if any, over the property involved in the suit. Civil Revision Petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//