S.P.Misra vs Mohd.Laiquddin Khan

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3311 OF 2015

S.P. Misra & Ors. ...Appellants

Versus

Mohd. Laiquddin Khan & Anr. ...Respondents

J U D G M E N T

R.Subhash Reddy,J.

1. This civil appeal is filed by the appellants,

in Civil Revision Petition No. 4894 of 2006, dated

09.04.2009, passed by the High Court of Judicature,

Andhra Pradesh at Hyderabad, whereby the High Court

has confirmed the order dated 01.02.2006, in E.A.

No. 6 of 2005 in E.P. No. 122 of 2003 in O.S. No.

Signature Not Verified 580 of 1980, passed by the II Senior Civil Judge, Digitally signed by NEELAM GULATI Date: 2019.10.18 15:26:13 IST Reason: City Civil Court, Hyderabad.

C.A. No.3311 of 2015 2

2. By the aforesaid order, learned II Senior Civil

Judge, City Civil Court, Hyderabad, allowed the

application filed by the respondents, under Section

47 of the Code of Civil Procedure, 1908 (for short,

‘C.P.C.’).

3. All the appellants herein are legal heirs of

late Sri Jai Narayan Misra and all the respondents

herein are legal heirs of late Smt. Hashmatunnisa

Begum. During the life time of late Sri Jai Narayan

Misra and late Smt. Hashmatunnisa Begum, they

entered into a partnership deed dated 14.04.1982. As

stated in the partnership deed, late Smt.

Hashmatunnisa Begum is the owner of open land with

structures, situated in Paigah Compound bearing No.

156-159 ad-measuring 22,253 square meters

approximately. After obtaining exemption from

Government of India, Ministry of Defence, New Delhi,

under Clause 20(1)(b) of the Urban Land (Ceiling and

Regulation) Act, 1976, both the partners have

entered into partnership, for carrying on business

in real estate, by developing the land which forms

the part of Paigah Compound. It appears that a major

portion of the land is already developed, but C.A. No.3311 of 2015 3

dispute is to an extent of 3381 square meters, which

is claimed by the original plaintiff, forming part

of property No.156-159 of Paigah Compound. There

were only two partners, as per the partnership deed.

4. The plaintiff in Original Suit No. 580 of 1988,

filed by late Sri Jai Narayan Misra, died on

04.01.2001, whereas the predecessor of the

respondents, late Smt. Hashmatunnisa Begum, died on

17.05.1996. During the life time, the predecessor of

the appellants late Sri Jai Narayan Misra, has filed

a Suit in O.S No. 580 of 1988, on the file of II

Additional Judge, City Civil Court, Hyderabad,

claiming the following reliefs:

“1. to grant permanent injunction against the defendant restraining the defendant and all the persons claiming through the defendant from preventing the plaintiff from carrying out the work of preparing layout plan, developing the property and sale thereof, in an extent of 3,381 square meters;

2. to grant mandatory injunction directing the defendant to sign the layout and other documents submitting to the Cantonment Board for sanction in respect of the land admeasuring 3,381 square meteres forming part of Paigah Colony situated at S.P. Road, Secunderabad, and for costs.” C.A. No.3311 of 2015 4

5. The said Suit was decreed on 14.07.1993, by the

Trial Court, granting the following reliefs:

“1. the defendant and all the persons claiming through the defendant be and that are hereby

permanently restrained from carrying the work of developing the property and sale thereof in respect of the suit schedule property;

2. the defendant is hereby directed to sign the layout plan and other documents for submitting to the Cantonment Board, Secunderabad for sanction in respect of the suit schedule property;

3. Each party shall bear their own costs.”

6. After death of the original plaintiff, the legal

heirs of the plaintiffs have filed Execution

Petition before the Trial Court, by claiming the

following reliefs:

“1. to direct the J.Dr. No.2 to 4 to sign the layout plan for submitting to the Cantonment Board, Secunderabad for sanction in respect of the suit schedule property;

2. to sign new/revised layout drawing, earmarking the additional land for development;

3. to break the existing boundary wall at the appropriate place to enable to have access into the additional land for which layout plan is being submitted;

C.A. No.3311 of 2015 5 4. to sign a letter to Cantonment Board, undertaking not to claim any water connection for the next 10 years;

5. to sign all other documents that may be required now or in future in connection with the development of the additional land;

6. to join in executing sale deeds and present the memo for registration, in favour of purchasers of the suit land, all under Order XXI Rules 32 and 34 and Section 151 C.P.C.”

7. In the following Execution Petition, respondents

have filed an application under Section 47 of

C.P.C., in E.A. No. 6 of 2005, before the Court of

II Senior Civil Judge, City Civil Court, Hyderabad,

claiming the relief, to dismiss the Execution

petition, as the decree is void and un-executable.

By a well reasoned Order, dated 01.02.2006, passed

by the II Senior Civil Judge, City Civil Court,

Hyderabad, allowed the application filed under

Section 47 of C.P.C. The said Order is challenged by

the respondents, by way of Civil Revision Petition

No. 4894 of 2006, before the High Court of

Judicature, Andhra Pradesh at Hyderabad. The High

Court, vide impugned order, confirmed the Order C.A. No.3311 of 2015 6

passed by the Trial Court, holding that the decree

obtained against the predecessors of the

respondents, namely, late Smt. Hashmatunnisa Begum,

is not executable against the legal representatives.

8. We have heard Sri. A.Subba Rao, learned counsel

appearing for the appellants and Sri. B. Adi

Narayana Rao, learned senior counsel appearing for

the respondents, assisted by Sri. Venkateswara Rao

Anumolu, Advocate on-record.

9. It is contended by Sri. A.Subba Rao, learned

counsel appearing for the appellants that as per the

terms of the partnership deed, in the event of death

of either of the party, their legal representatives

shall automatically become partners in the

partnership firm and they shall continue to act as

partners of the firm till the venture envisaged

under partnership is completed and such legal

representatives, who become partners, shall have

same rights and shall be subject to same liabilities

and responsibilities, as the deceased partner. The

relevant clauses of the partnership deed dated

14.04.1982, read as under:

C.A. No.3311 of 2015 7

“This partnership shall not be dissolved till the completion of the venture except by mutual agreement reduced in writing.

The parties hereby expressly and specifically agree that in the event of death of either party their respective legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm till the venture envisaged under this partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to the same liabilities and responsibilities as the deceased partner.”

10. By referring to the contents of the partnership

deed, it is contended by Sri. A. Subba Rao, learned

counsel appearing for the appellants that the decree

obtained by the predecessor of the appellants is

executable and against the respondents, who are the

legal representatives of the original partner. The

Trial Court as well as the High Court have

erroneously held that the decree which has become

final, is not executable against the respondents.

11. Learned counsel has placed strong reliance on a

judgment of this Court, in the case of Prabhakara

Adiga v. Gowri and Others1.

1 (2017) 4 SCC 97 C.A. No.3311 of 2015 8

12. On the other hand, it is the contention of Sri.

B. Adi Narayana Rao, learned senior counsel

appearing for the respondents that as there were

only two partners and on death of one of the

partners, partnership stands dissolved, in view of

the provision under Section 42(c) of the Partnership

Act, 1932. It is submitted that when the right

litigated upon is readable, only in such event,

decree can be executed. It is submitted that

respondents were not the partners in the partnership

deed and if, any clause in the partnership deed

which runs contrary to statutory provisions are

void, such clauses are against the public policy. It

is submitted that when the partnership itself stands

dissolved on death of one of the partners, the

appellants claiming right under a decree obtained by

the original partner, cannot be executed against the

respondents.

13. In this case, it is not in dispute that as per

the original partnership deed there were only two

partners, namely, late Smt. Hashmatunnisa Begum, who

is the owner of the land/predecessor of the C.A. No.3311 of 2015 9

respondents and late Sri Jai Narayan Misra, who is

the predecessor of the appellants herein.

14. From the Suit filed in O.S. No. 580 of 1988, the

original plaintiff has obtained a decree on

14.07.1993 from the Trial Court, which granted the

reliefs as under:

“1. the defendant and all the persons claiming through the defendant be and that are hereby permanently restrained from carrying the work of developing the property and sale thereof in respect of the suit schedule property;

2. the defendant is hereby directed to sign the layout plan and other documents for submitting to the Cantonment Board, Secunderabad for sanction in respect of the suit schedule property;

3. Each party shall bear their own costs.”

15. From a perusal of the relief sought for in the

Execution Petition, by the legal heirs of the

original plaintiff, itself makes it clear that

reliefs sought in Execution Petition are going

beyond the scope of the decree. It is fairly well-

settled that, the Executing Court cannot travel

beyond the decree. The only question which fell for

consideration before the Trial Court in E.A. No. 6 C.A. No.3311 of 2015 10

of 2005, was whether the decree obtained by the

predecessor of the appellants, can be executed

against the appellants or not. Section 42 of the

Partnership Act, 1932, deals with the situations of

dissolution of partnership, on happening of certain

contingencies. As per the said provision, subject to

contract between the partners, a firm is dissolved

when:

(a) if constituted for a fixed term, by the expiry

of that term;

(b) if constituted to carry out one or more

adventures or undertakings, by the completion

thereof;

(c) by the death of a partner; and

(d) by the adjudication of a partner as an

insolvent.

16. In the case on hand, as much as there were only

two partners, the partnership itself stand

dissolved, in view of death of a partner.

17. It is true that as per the deed of partnership,

the partners have agreed, in the event of death of

either party, their respective legal representatives

shall automatically become partners in the C.A. No.3311 of 2015 11

partnership firm and they shall continue to act as

partners of the firm, till the venture envisaged

under said partnership is completed and such legal

representatives who become partners shall have the

same rights and shall be subject to same liabilities

and responsibilities, as the deceased partner.

18. At this stage, it is to be noticed that once the

partnership comes to an end, by virtue of death of

one of the partners, there will not be any

partnership existing in which legal representatives

of late Smt. Hashmatunnisa Begum could be taken in.

The judgment and decree obtained by late Sri Jai

Narayan Misra against late Smt. Hashmatunnisa Begum,

in pursuance of partnership deed dated 14.04.1982,

cannot bind the legal representatives of late Smt.

Hashmatunnisa Begum, as such, decree is not

executable against them. The legal representatives

of late Smt. Hashmatunnisa Begum are not the

partners of the original partnership deed dated

14.04.1982. When such legal representative are not

parties to the contract, such contract cannot confer

rights or impose obligations arising under it on any

third party, except parties to it. No one but the C.A. No.3311 of 2015 12

parties to the contract can be entitled under it or

born by it. Such principle is known as ‘Privity of

Contract’. When the partnership stands dissolved by

operation of law under Section 42(c) of the Indian

Partnership Act, 1932, the question of execution in

pursuance of the decree does not arise. There cannot

be any contract unilaterally without acceptance and

agreement by the legal heirs of the deceased

partner. If there are any clauses in the agreement,

entered into between the original partners, against

the third parties, such clauses will not bind them,

such of the clauses in the partnership deed, which

run contrary to provisions of Indian Partnership

Act, 1932, are void and unenforceable. Such clauses

are also opposed to public policy.

19. In the case of Prabhakara Adiga v. Gowri and

Others1, on which strong reliance is placed by Sri.

A.Subba Rao, learned counsel appearing for the

appellants, would not render any assistance to

support his case, having regard to facts of the case

on hand and the rights litigated in the Suit in O.S.

No. 580 of 1988, before the II Senior Civil Judge,

City Civil Court, Hyderabad. In the case of C.A. No.3311 of 2015 13

Prabhakara Adiga1, plaintiff was allotted suit

scheduled property in a registered partnership deed

and he was in possession thereof. The defendant, on

partition in the family, had been allotted a portion

of the land. When there was interference on the suit

scheduled property, which fell to the share of

plaintiff, as per the registered partnership deed, a

suit for permanent injunction was filed.

20. In the aforesaid case, after suffering decree

for permanent injunction, judgment-debtor died. When

the heirs of the judgment-debtor in violation of the

decree for permanent injunction tried to forcibly

dispossesess the decree-holder, decree-holder filed

the Execution Petition. The Executing Court held

that heirs of the judgment-debtor were not bound by

the decree. When such order is questioned before the

High Court, the Writ Petition is allowed. The High

Court held that decree of permanent injunction

cannot be enforced against the legal heirs of

judgment-debtor, as an injunction does not travel

with the land. This Court, by referring to provision

under Section 50 of C.P.C. read with Order 21 Rule

32 of C.P.C, has held that such a decree can be C.A. No.3311 of 2015 14

executed against the legal representatives. But, at

the same time, the paragraph 25 of the judgment,

which is relied on by Sri. B. Adi Narayana Rao,

learned senior counsel appearing for the

respondents, reads as under:

“25. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from Section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim “actio personalis moritur cum persona” is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary [Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124] and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over C.A. No.3311 of 2015 15

again against the legal representatives of the judgment- debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 CPC, such a decree can be executed against legal representatives.”

21. From a reading of the aforesaid judgment, it is

clear that the executable decree depend on the

rights litigated by the parties. In the case on

hand, the original decree was obtained against the

predecessor of the respondents, who was party to

partnership deed. In view of death of one of the

partners, the partnership itself stands dissolved

statutorily, by operation of law, in view of

provision under Section 42(c) of the Indian

Partnership Act, 1932. When the respondents are not

parties to the partnership firm, they are not bound

by the decree obtained by the predecessor of the

appellant. More so, when it is a case of the

respondents that they have not derived any assets

and liabilities arising out of the partnership firm, C.A. No.3311 of 2015 16

decree obtained by the original plaintiff is not

executable against the respondents.

22. It is also to be noticed that during the life

time of late Smt. Hashmatunnisa Begum, she also

filed Suit in O.S. No. 1061 of 1990 on the file of

VII Senior Civil Judge, City Civil Court, Hyderabad,

for dissolution of partnership firm constituted

under deed of partnership dated 26.06.1977 and also

for rendition of accounts. It is true that same is a

different partnership but, parties are same. In such

suit filed by late Smt.Hashmatunnisa Begum,

predecessor of the appellants Late Sri Jai Narayan

Misra, filed IA No. 1649 of 1997, to dismiss the

said suit, claiming that in view of death of one of

the partners, during the pendency of the suit, there

is no room for third party to be introduced. It was

the case of late Sri Jai Narayan Misra that

partnership stood dissolved. However, in a similar

situation arising out of partnership deed dated

14.04.1982, the appellants claim the decree is

executable against the respondents, who are the

legal heirs of the judgment-debtor. As much as, we

are of the view that the respondents were not C.A. No.3311 of 2015 17

parties to the partnership deed and that the

partnership stands dissolved, in view of death of

one of the partners, the respondents have not

derived the benefit of assets of the partnership

firm, the decree obtained by the predecessor of the

appellants, is not executable against the

respondents herein.

23. In view of the same, we are of the view that the

Trial Court has rightly allowed the application

filed by the respondents under Section 47 of C.P.C.

and there is no error committed by the High Court,

in confirming such order by dismissing the Civil

Revision Petition filed by the appellants herein.

24. We do not find any merit in this appeal so as to

interfere in the impugned well reasoned order.

25. This civil appeal is, accordingly, dismissed,

with no order as to costs.

...................J. [Indu Malhotra]

....................J. [R. Subhash Reddy]

New Delhi;

October 18,2019