THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1246 of 2011 December 30, 2011 Between: Yidala Sreeramachandra Murthy, S/o.Ramamurthy ... Appellant And Balusu Satyanarayana Murthy, S/o.late Anand And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1246 of 2011 JUDGMENT: The appellant herein is the plaintiff in O.S.No.772 of 2002 on the file of the Court of the Principal Junior Civil Judge, Kakinada. He filed the suit for partition of plaint schedule property, mesne profits from the date of filing of suit till the delivery of possession, and rendition of accounts. Having been partly unsuccessful before the trial Court as well as the appellate Court in A.S.No.5 of 2010, he filed the instant second appeal. By referring the parties as they are arrayed in the suit, the brief factual background is noticed herein below. Yidala Ramamurthy (father of the plaintiff) and 17 others purchased the land admeasuring Acs.4.72 with a rice mill and machinery under registered sale deed 29.1.1971. They formed into partnership firm M/s.Coringa Rice Mill. The father of the plaintiff had 12/100 share. The defendants 1, 2, 18 and 20 were managing the rice mill. They did not disburse profits to other partners. After death of the father, the plaintiff succeeded to father’s share. He issued legal notice demanding partition in vain and, therefore, he filed the suit for partition of property into 100 shares and for allotment of 12 shares to him, for mesne profits and for rendition of accounts of the partnership firm. The defendants 1 and 2 filed separate written statements. According to the first defendant, as per the partnership deed dated 01.2.1971 there were 18 sharers. Another partnership deed was executed on 22.2.1975 when the third defendant was admitted to the partnership after he attained majority. The father of the plaintiff and one Batchu Anand were managing partners of the rice mill. Both of them died in 1985 as a result of which, the business of the rice mill was stopped. The second defendant filed separate written statement alleging that the father of the plaintiff alone managed and maintained accounts of the firm; he was enjoying the profits and after father’s death the plaintiff was enjoying the profits. Therefore the plaintiff alone is answerable to the profits derived from the assets. He further alleged that all the sharers mortgaged the schedule property to Andhra Bank and obtained loan. The debt of Andhra Bank increased over and above the value of the property and, therefore, all the sharers left the schedule property without paying the principal or interest. He expressed no objection for partition of the property after discharging the debt to Andhra Bank. The defendants 3 to 16, 19 to 22 and 24 to 32 adopted the written statement of first defendant. The defendants 17 and 18 adopted the written statement of second defendant. The defendants 23 and 33 to 39 remained exparte. The defendant No.18 died during the pendency of the trial. The trial Court framed four issues. The plaintiff deposed as P.W.1 and marked Exs.A1 to A12. P.W.2 was also examined. The defendants examined two witnesses but did not mark any document. On considering the oral and documentary evidence, the trial Court came to the conclusion that by selling the movable property of the rice mill the Bank debt was discharged. Therefore the trial Court passed preliminary decree directing division of vacant site of schedule property into 100 shares and allotting 12 shares to the plaintiff with possession. Remaining shares were allotted to the defendants in proportion to the amounts invested and percentage of shares owned by them. Aggrieved by the denial of mesne profits and decree for accounts, the plaintiff filed A.S. No.5 of 2010 on the file of the Court of the III Additional Senior Civil Judge, Kakinada. By judgment and decree dated 04.7.2011 the first appellate Court dismissed the appeal confirming the judgment of the trial Court. Having noticed that the firm was not dissolved by execution of a deed, it was held that the suit for rendition of accounts cannot be decreed and that as admitted by the plaintiff as P.W.1, the father did not initiate any action for rendering accounts or for dissolution of the firm. In this appeal, the Counsel for the appellant/plaintiff would submit that the denial of the relief of mesne profits and decree for accounts by the Courts below is erroneous. The Courts ought to have directed the firm to be dissolved and grant relief for accounts and profits. The defendants 1 and 2 alleged that after death of the plaintiff’s father the business of the rice mill was stopped and there was no business carried on. The trial Court found that Andhra Bank debt was discharged by selling the machinery of the rice mill and what remained is vacant site forming part of the schedule property. As there was no dispute or serious controversy about this aspect a decree was passed to the extent of granting division of the property into 100 shares and allotment of the shares to the partners proportionately. Insofar as the claim for rendition of accounts is concerned, the trial Court found that since the business was stopped in 1987, the claim made by the plaintiff for profits in the business in 2002 is clearly barred by limitation. This view is found favour with appellate Court as well. A plain reading of Article 5 of the Limitation Act, 1963 would show that a suit for rendition of accounts has to be made within three years from the date of its dissolution. But in this case the suit was filed beyond the period of limitation and, therefore, though a suit for partition would lie as it is a continuous cause of action, the claim for rendition of accounts would not lie. The Courts below have appreciated the facts as well as the principle applicable to the facts and applied it correctly. The Second Appeal is misconceived and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. _______________ (V.V.S.RAO, J) December 30, 2011 YS