IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1398 OF 2017 C/W REGULAR FIRST APPEAL No.1397 OF 2017 In RFA No.1398/2017 BETWEEN Dattatreya Kushappa Desai, S/o. Sri. Kushappa, Aged about 85 years, 12/13, Sy. No.116, Rajagopalanagar, Peenya 2nd Stage, Bengaluru-560058.
(By Sri.C.G.Gopalaswamy, Advocate) AND 1. Panduranga Krishnaji Bugad, Aged about 78 years, R/at No.8/296, Mangalwarpet, Inchalkaraji, Kolhapur District, Maharashtra-416115.
2. Tukaram Shivram Bugad, Aged about 83 years, R/at No.77, Ward No.9, Inchalkaraji, Kolhapur District, Maharashtra-416115.
…Appellant 3. Annashankar Tarlekar Since dead represented by His legal representatives a). Smt. Vimal Ashok Divate D/o. Sri. Annashankar Tarlekar, Aged about 61 years, R/at Power House Road, Near Swagat Printing Press, Near Nana Patil Statue, At & Post, VITA District, Sanjli, Maharashtra State-415311.
b). Smt. Sunita Sadashiv Lole, D/o. Sri. Annashankar Tarlekar, Aged about 58 years, At & Post, Pethwadagaon Taluk, Hatkanangale, Kolhapur District, Maharashtra State-416101.
c). Smt. Anita Gajanna Mirage, D/o. Sri. Annashankar Tarlekar, Aged about 56 years, R/at Ward No.16, H.No.644, Mhetar Tully, Shivajinagar Post, Ichalakaranji, Kolhapur District, Maharshtra State-416115.
d). Smt. Sangita Yashavwant Stapute, D/o. Sri. Annashankar Tarlekar, Aged about 54 years, R/at Near Sri. Chowdeshwari Mandir, Ward No.8, H.No.277, Mangalwar Pet, Post Ichalakaranji, Kolhapur District, Maharashtra State-416115.
e). Smt. Sujatha Ravindra Bhute, D/o. Sri. Annashankar Tarlekar, Aged about 52 years, Ward No.2, H.No.2947, At & Post Dattanagar, Kabanur, Kolhapur District Maharashtra State-416129.
f). Prasad Anna Tarlekar, S/o. Sri. Annashankar Tarlekar, Aged about 45 years, R/at House No.227, Ward No.12 (New), Shivajinagar Post, Ichalakaranji, Kolhapur District, Maharashtra State-416115.
3(a) to 3(f) represented by their Power of Attorney holder Sri. B.V.Chandrashekar 4. Manohar Apparao Korade Since dead represented By his legal representatives a). Smt. Lathika Apparao Korade, W/o. Sri. Manohar Apparao Korade, Aged about 80 years, b). Kiran Korade, S/o. Sri. Manohar Apparao Korade, Aged about 62 years, c). Ravi Korade, S/o. Sri. Manohar Apparao Korade, Aged about 59 years, 4(a) to 4(c) address is C/o. Ravikiran Products, Kirron, M.Korade,G-38, MIDC, Miraj, Block Miraj-426420.
d). Smt. Meena Harishchandra Litake, W/o. Sri. Harishchandra Litake, Aged about 57 years, R/at Sathoshima Margh, Kakraje, Poone-411001.
e). Smt. Neena Gopalrao Ralekar, W/o. Sri. Gopalrao Ralekar, Aged about 55 years, R/at Vidhya Nagar, Near Mayur High School, Gokak-591307.
4(a) to 4(e) represented by their Power of Attorney holder Sri B.V.Chandrashekar 5. Bhojagade Krishnaji Venkaborao, Since dead represented By his legal representatives a). Sharada Bai B.V., W/o. Sri. Bhojagade Krishnaji Venkaborao, Since dead, represented by Legal representatives 5(b) to (e), b). B.V.Chandrashekar, S/o. Sri. Bhojagade Krishnaji Venkaborao, Major by age, c). B.V.Baskar, S/o. Bhojagade Krishnaji Venkaborao, Major, d). Manjula Bai, D/o. Sri. Bhojagade Krishnaji Venkaborao, Major, e). Shashikala, D/o. Sri. Bhojagade Krishnaji Venkaborao, Major, 5(a) to 5(e) residing at No.192, V Main, Vyalikaval, Bangalore-560003, And represented by their Power of Attorney holder Sri. B.V.Chandrashekar.
…Respondents [By Sri K.G.Sadashivaiah, Adv., for R5 (b) & GPA holder of R-1 to 3 (a) to (f), 4(a) to 4(e) & 5(a), (c) to (e)] This RFA is filed under Section 96 read with Order XLI Rule 1 of CPC 1908 against the judgment and decree dated 28.01.2017 passed in FDP No.104/2001 (c/w FDP No.20/2003) on the file of the XVI Additional City Civil Judge, Bengaluru (CCH-12), drawing final decree.
In RFA No.1397/2017 BETWEEN Dattatreya Kushappa Desai, S/o. Sri. Kushappa, Aged about 85 years, 12/13, Sy. No.116, Rajagopalanagar, Peenya 2nd Stage, Bengaluru-560058.
(By Sri.C.G.Gopalaswamy, Advocate) AND 1. Panduranga Krishnaji Bugad, Aged about 78 years, …Appellant R/at No.8/296, Mangalwarpet, Inchalkaraji, Kolhapur District, Maharashtra-416115.
2. Tukaram Shivram Bugad, Aged about 83 years, R/at No.77, Ward No.9, Inchalkaraji, Kolhapur District, Maharashtra-416115.
3. Annashankar Tarlekar Since dead represented by His legal representatives a). Smt. Vimal Ashok Divate D/o. Sri. Annashankar Tarlekar, Aged about 61 years, R/at Power House Road, Near Swagat Printing Press, Near Nana Patil Statue, At & Post, VITA District, Sanjli, Maharashtra State-415311.
b). Smt. Sunita Sadashiv Lole, D/o. Sri. Annashankar Tarlekar, Aged about 58 years, At & Post, Pethwadagaon Taluk, Hatkanangale, Kolhapur District, Maharashtra State-416101.
c). Smt. Anita Gajanna Mirage, D/o. Sri. Annashankar Tarlekar, Aged about 56 years, R/at Ward No.16, H.No.644, Mhetar Tully, Shivajinagar Post, Ichalakaranji, Kolhapur District, Maharshtra State-416115.
d). Smt. Sangita Yashavwant Stapute, D/o. Sri. Annashankar Tarlekar, Aged about 54 years, R/at Near Sri. Chowdeshwari Mandir, Ward No.8, H.No.277, Mangalwar Pet, Post Ichalakaranji, Kolhapur District, Maharashtra State-416115.
e). Smt. Sujatha Ravindra Bhute, D/o. Sri. Annashankar Tarlekar, Aged about 52 years, Ward No.2, H.No.2947, At & Post Dattanagar, Kabanur, Kolhapur District Maharashtra State-416129.
f). Prasad Anna Tarlekar, S/o. Sri. Annashankar Tarlekar, Aged about 45 years, R/at House No.227, Ward No.12 (New), Shivajinagar Post, Ichalakaranji, Kolhapur District, Maharashtra State-416115.
3(a) to 3(f) represented by their Power of Attorney holder Sri. B.V.Chandrashekar 4. Manohar Apparao Korade Since dead represented By his legal representatives a). Smt. Lathika Apparao Korade, W/o. Sri. Manohar Apparao Korade, Aged about 80 years, b). Kiran Korade, S/o. Sri. Manohar Apparao Korade, Aged about 62 years, c). Ravi Korade, S/o. Sri. Manohar Apparao Korade, Aged about 59 years, 4(a) to 4(c) address is C/o. Ravikiran Products, Kirron, M.Korade,G-38, MIDC, Miraj, Block Miraj-426420.
d). Smt. Meena Harishchandra Litake, W/o. Sri. Harishchandra Litake, Aged about 57 years, R/at Sathoshima Margh, Kakraje, Poone-411001.
e). Smt. Neena Gopalrao Ralekar, W/o. Sri. Gopalrao Ralekar, Aged about 55 years, R/at Vidhya Nagar, Near Mayur High School, Gokak-591307.
4(a) to 4(e) represented by their Power of Attorney holder Sri B.V.Chandrashekar 5. Bhojagade Krishnaji Venkaborao, Since dead represented By his legal representatives a). Sharada Bai B.V., W/o. Sri. Bhojagade Krishnaji Venkaborao, Since dead, represented by Legal representatives 5(b) to (e), b). B.V.Chandrashekar, S/o. Sri. Bhojagade Krishnaji Venkaborao, Major by age, c). B.V.Baskar, S/o. Bhojagade Krishnaji Venkaborao, Major, d). Manjula Bai, D/o. Sri. Bhojagade Krishnaji Venkaborao, Major, e). Shashikala, D/o. Sri. Bhojagade Krishnaji Venkaborao, Major, 5(a) to 5(e) residing at No.192, V Main, Vyalikaval, Bangalore-560003, And represented by their Power of Attorney holder Sri. B.V.Chandrashekar.
…Respondents [By Sri K.G.Sadashivaiah, Adv., for R5 (b) & GPA holder of R-1 to 3 (a) to (f), 4(a) to 4(e) & 5(a), (c) to (e)] This RFA is filed under Section 96 read with Order XLI Rule 1 of CPC 1908 against the judgment and decree dated 18.08.2005 passed in FDP No.20/2003 on the file of the XVI Additional City Civil Judge, Bengaluru (CCH-12), decreeing the FDP proceedings.
These appeals coming on for further hearing this day, the court delivered the following:
JUDGMENT Common order dated 28.1.2017 in FDP 104/2001 and FDP 20/2003 is challenged in these two appeals. Stated briefly the background for these two appeals, it is as follows:-
2. The respondents 1, 2 and 3 deceased persons namely, Annashankar Taralakar, Manohar Apparao Korade and Bhojagadde Krishnaji Venkoba Rao, being the partners brought a suit O.S.1551/1980 in the City Civil Court, Bengaluru, against another partner, i.e, the appellant in these two appeals for dissolution and taking of accounts of the firm ‘Bangalore Ice Factory’. They sought for inclusion of another business concern ‘Lakshmi Ice and Cold Storage’ in the suit on the allegation that the appellant ran the latter business concern by divulging the funds of Bangalore Ice Factory. The City Civil Court, by its judgment dated 31.7.1991, decreed the suit and ordered for drawing up of preliminary decree. The appellant preferred an appeal, RFA 460/1991 to this court challenging the preliminary decree. On 3.6.2002, this appeal was allowed with observations that the partnership firm stood dissolved deemingly with effect from 21.8.1976 and that issue No.2 should be decided in final decree proceeding. The issue No.2 is “Whether the second concern styled as ‘Lakshmi Ice and Cold Storage’ is a part and parcel of suit partnership as contended by the plaintiffs?” or “Whether the said concern belongs exclusively to defendant No.1 as contended by him”?
3. Pursuant to the decision in the appeal, the appellant initiated FDP 104/2001 and the original plaintiffs in the suit filed FDP 20/2003. Consolidating these two proceedings for adjudication, the trial court decided issue No.2 holding that Lakshmi Ice and Cold Storage was a part of Bangalore Ice Factory and consequently all the partners had 1/7 share each in the capital account of the partnership firm. With these observations, both FDP petitions were disposed of with a direction to draw final decree. The share of 6th plaintiff was purchased by other plaintiffs. This judgment was challenged before this court in RFA 1574/2005 by the appellant herein, but by judgment dated 25.10.2013, this court dismissed the appeal. A Special Leave Petition (Civil) No. 3495/2014, preferred by the appellant before the Hon’ble Supreme Court was also dismissed.
4. In the final decree proceedings, the plaintiffs made an application under Order VI Rule 17 of Civil Procedure Code (‘the Code’ for short) seeking an amendment to the plaint in order to include the assets of another concern, Lakshmi Ice and Cold Storage. The court below did not grant the application, but made certain observations which will be referred to little later. The appellant in these two appeals being respondent in FDP 20/2003 made an application under Order 26 Rule 13 of the Code seeking appointment of a Commissioner to make a partition of the property as per the preliminary decree. This application being objected to by the respondents herein, was dismissed. It appears that the appellant as also one of the defendants in the suit were appointed as receivers. On 11.11.2015, the court below passed one more order holding that since the order for drawing up final decree had attained finality, necessity to appoint a Commissioner for effecting division would not arise, and the course open to the parties was to execute the decree after obtaining the final decree drawn up. On 24.9.2016, the trial court passed an order on a memo to the effect that the property belonging to Lakshmi Ice and Cold Storage Factory should be included at the time of drawing up final decree and that the appellant (respondent in FDP 20/2003) should furnish the details of assets of Lakshmi Ice and Cold Storage. On 28.1.2017 the trial court passed one more order upon an application filed by the appellant under section 151 of the Code. In this application, the appellant sought for deferment of orders; he gave the reasons that he had filed writ petitions challenging the order dated 16.8.2005 and 24.9.2016 and till conclusion of these writ petitions, no further order should be passed in the final decree proceedings. On 28.1.2017, the trial court dismissed the said application and passed an order stating that the petitioners in FDP 20/2003 were also entitled to share in the property of Lakshmi Ice and Cold Storage, that it should be divided among the parties and that the final decree should be drawn by including the property of Lakshmi Ice and Cold Storage. It is this order that is challenged in these two appeals.
5. Though the learned counsel for the appellant, Sri S.V.Bhat, addressed lengthy argument, the gist of his argument is that the trial court should not have ordered for drawing up of final decree again by including the property of Lakshmi Ice and Cold Storage as it had become ‘Functus Officio’ in the light of judgment dated 18.8.2005 which disposed of two final decree proceedings. He also argued that in view of application filed under Order VI Rule 17 of the Code by the respondents herein to include the immovable property of Lakshmi Ice and Cold Storage having stood dismissed, the impugned order directing the inclusion of the very same property for drawing up final decree suffers from illegality. He also argued that in a suit for dissolution of a partnership firm, there cannot be a division of property as is done in a suit for partition. In support of his argument, he has referred to some decided cases which will be referred to contextually.
6. The learned counsel for the respondents Sri K.G.Sadashivaiah met the arguments of Sri S.V.Bhat by arguing that the appellant is wrongly interpreting the order of the court below on the application for amendment; the said application was dismissed for the reason that Lakshmi Ice and Cold Storage was held to be part of Bangalore Ice Factory and therefore the properties of Lakshmi Ice and Cold Storage would obviously belong to Bangalore Ice Factory. He also argued that since the immovable property of Lakshmi Ice and Cold Storage had not been included in the preliminary decree, it was sought to be included again. He also emphasized that till final decree is drawn, there can be any number of preliminary decrees and that a property left out initially can be included at any time before final decree is drawn. He too has placed reliance on some of the decided cases to garner support for his argument.
7. The arguments of the learned counsel give rise to the moot point, “Did the trial court become ‘Functus Officio’ and lack jurisdiction to pass an order for drawing up final decree by including the immovable property of Lakshmi Ice and Cold Storage?
8. Given a look at chronological events, it can very well be said that a mistake or wrong procedure that appears to have been committed or adopted by the trial court is the main reason for all these anomalies. Litigation that commenced in the year 1976 is still alive. A suit for dissolution of a partnership firm requires a preliminary decree to be drawn. At this stage all that the court enquires into is whether the partner seeking for dissolution of the firm and its accounts has made out grounds for dissolution. If a case for dissolution is made out, preliminary decree will be drawn. The actual dissolution process like taking stock of assets and liabilities of the firm, and its accounts is to be taken up in final decree proceeding. Section 48 of the Indian Partnership Act envisages this procedure. It is only after this process is completed, final decree shall be drawn. Execution arises later.
9. Now in this case, when the trial court took up adjudication of issue No.2 pursuant to judgment of this court in RFA 460/1991, and when it held that Lakshmi Ice and Cold Storage was a part of the firm Bangalore Ice Factory, it should not have further held that the two petitions for final decree stood disposed of. It was not a stage to close the petitions. Having held issue No.2 in affirmative, the trial court should have proceeded further to take stock of the two business concerns and paved the way for actual dissolution. Actually this judgment is like a preliminary decree. In the context of procedure to be followed in a suit for dissolution; I find it apt to refer to two judgments cited by Sri S.V.Bhat. In the case of Smt. Sundar Devi vs Brij Lal and Others [AIR 1981 DEL 208], it is held as below: -
“17. Section 48 next elaborates the mode of settlement of amounts between partners. Losses, including deficiency of capital, have first to be paid out of profits, next out of capital and lastly if necessary, by the partners individually, in the proportions in which they were entitled to share profits. As regards, the assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, the mode to be adopted is that first the debts of the firm to third parties have to be paid, then the loans as distinguished from capital investments given by partners to 'the firm rateably discharged. Thereafter each partner is rateably given what is due to him on account of capital. The residue left thereafter has to be divided amongst the partners in proportion in which they were entitled to share profits”.
(emphasis supplied) 10. The Hon’ble Supreme Court in the case of Asandas Mitharam Narsinghani and Others vs Tekchand Mitharam Sevakramani and Others [AIR 1999 SC 3802], has approved the procedure followed by the arbitrator by observing as below : -
“7. Learned Counsel for the appellants has taken us through the award of the arbitrator. On going through the said award we do not find that the same is not in conformity with the mode prescribed by the said Section. Without going into the question as to whether there was an agreement between the partners not to adhere to the mode prescribed by Section 48, as was sought to be contended by Mr. Ramchandran, learned senior Counsel, we find that the award has dealt with all the aspects referred to in Section 48. After going through the accounts the arbitrator has not determined any loss of partnership. As far as the assets of the firm are concerned it has made provisions with regard to the payment of debts of the firm to the third party. It has then provided for the manner in which each partner has to be paid from the assets of the firm and how the Division of the firm's property is to take place. The award of the arbitrator is very detailed and elaborate, even though it is not a speaking award. We, therefore, are unable to agree with the conclusion of the trial Court as well as the High Court that provisions of Section 48 had not been complied with. We also note that neither the trial Court nor the High Court have pointed out as to how the provisions of Section 48 have not been complied with. The said Courts, have in a way, assumed non-compliance of Section 48 of the Act. On going through the award we do not find any warrant for such an assumption. We, therefore, hold that the award is not in conflict with the provisions of Section 48.
11. Also this court in the case of K.A.Gundu Rao and Others vs. Ramanarayana Avadhani and Others, AIR 1994 KAR 217, the Division bench of this Court has held as below:-
“11. ……… After the losses are made up, debts due to third parties are paid, advance made by the partners are refunded or repaid in full or rateably, from the balance remaining, the capital contributed by each partner shall have to be paid to him rateably. After, these payments are made if further funds are available, referred to as the residue, same shall be distributed amongst the partners in proportion in which they were entitled to share the profits. In other words, the "residue" is equated to the profits of the firm to be shared by all the partners, in the manner they were sharing the profits of the firm. In law, there is no question of any 'asset' of the firm being left over 'in specie', at this stage. Each erstwhile partner takes the residue as the available profit out of their joint venture. Value of the assets would have already gone into the hotchpot of the firm, while applying the various clauses of section 48…..”
12. Sri S.V.Bhat has referred to three more decisions, viz., (1). R.M.Palat vs P.A.Nedungadi [AIR 1958 Kerala 377]; (2). Suresh Chandra Banerjee and Another vs United Bank of India and Another [AIR 1961 Calcutta 534] and (3). Smt. Savitri Devi vs Laxmi Narain and Others [AIR 1966 Rajasthan 261]. I wonder how these judgments have relevancy on the point under discussion. Be that as it may, the point is now clear that, unless the procedure contemplated under Section 48 of the Indian Partnership Act is followed after passing of preliminary decree, there is no effective final decree. This is one aspect of the matter.
13. The next aspect is with regard to inclusion of immovable property of Lakshmi Ice and Cold Storage in the final decree proceedings. It is quite clear that the appellant is opposing inclusion of this property tooth and nail as according to him the property belongs to him. Sri S.V.Bhat argued that the inclusion of this property in final decree proceeding is not permitted as the respondents’ application for amendment was rejected. But if the said order is perused, it is seen that amendment was not permitted because the finding of the trial Court on issue No.2 having attained finality with the dismissal of Special Leave Petition by the Supreme Court, the assets and liabilities of the Lakshmi Ice and Cold Storage merged with Bangalore Ice Factory. Receivers were also appointed to look after the assets and liabilities of both the firms. Actually the purport of this order is that in a situation like this, amendment was not necessary. This order does not say that inclusion of immovable property of Lakshmi Ice and Cold Storage was not required; rather it states that express permission to inclusion by amendment of plaint is unwarranted.
14. As it becomes clear that the assets of Lashmi Ice and Cold Storage are integral part of Bangalore Ice Factory, a question arises whether immovable property of Lakshmi Ice and Cold Storage can be included for drawing up final decree? This question has an answer in the judgment of this Court in the case of Smt. Janaki vs. Smt. Lalitha and others [(2015 (4) AKR 488)]. Referring to a decision of the Supreme Court in the case of Phoolchand and Another vs Gopal Lal [AIR 1967 SC 1470] and some decisions of other High Courts, a coordinate bench of this Court has held as below:
“22. In paragraph 7 of the decision rendered in Phoolchand’s case, it is held that passing of more than one preliminary decree is permissible if circumstances justify the same. It is further held that so far as partition of suits are concerned, the court has got powers to alter the change in share if an event transpires after the preliminary decree. Though Apex Court was concerned with the alternation of the shares because of death of one of the parties in Phoolchand’s case, the High Court of Patna in the case of Shub Karan and the High Court of Andhra Pradesh in the case of Somereddi have relied upon the decision of Phoolchand for amplifying that even if a property is left out in the preliminary decree can be the subject matter in the final decree proceedings in order to avoid multiplicity of suits and there could be another decree after a full fledged trial.”
(emphasis supplied) Therefore there is no bar for inclusion of the immovable property of Lakshmi Ice and Cold Storage in the final decree proceedings.
15. Sri S.V.Bhat, learned counsel for appellant argued very much that the court below is functus officio to entertain the matter. This point needs to be addressed. ‘Functus Officio’ means:
‘A person who has discharged his duty; or whose office or authority is at an end’. (Wharton’s Concise Law Dictionary) “having performed his or her office” (Black’s Law Dictionary) 16. In the case on hand, the Court having to reach the stage of ‘functus officio’ has not arisen, for as discussed above, before drawing up final decree, other stages are not completed. May be there is an order dated 18.08.2005 to close the final decree proceedings, but it was a sheer mistake which can always be corrected. Once preliminary decree is passed, until it is given into effect by completing the other steps culminating into final decree, there is no stop.
17. Meeting a situation akin to this in a suit for partition, the Supreme Court in the case of SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA VS. SITA SARAN BUBNA AND OTHERS ((2009) 9 SCC 689) observed as below:-
“9.3) As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion”.
18. Though the above ruling is in a suit for partition, the principle is very much applicable to a suit for dissolution of a partnership firm. As the preliminary decree only brings the suit for dissolution of a partnership firm to a certain stage, it is only by making further progress in the matter adopting such step as may be necessary for distribution of surplus at the end among the partners in proportion to their contribution to the firm, effective final decree can be drawn. If the procedure envisaged in section 48 of Partnership Act is not followed, and if there is no adjudication of the manner in which the firm must be subjected to dissolution there is no final decree at all. Probably for this reason, the court below ordered for drawing up final decree by passing the impugned order. The order dated 18.08.2005 passed by the trial Court in the first instance, did not bring the proceedings to logical end. Therefore I do not find that the trial Court has become functus officio and lacks jurisdiction.
19. Sri S.V.Bhat raised another point that the immovable property sought to be included in the final decree proceedings measures larger in area than shown in the sale deed and the extra land available belongs to appellant. There are chances that the appellant will be deprived of that land. To this submission, Sri K.G.Sadashivaiah replied that the respondents confine their claim to an area within the boundaries mentioned in the sale deed. Therefore, the trial Court shall take note of this aspect while holding an enquiry in the final decree proceedings. With these discussion I come to conclusion that the impugned order for drawing up final decree does not suffer from any illegality, but it requires to be modified to the extent that final decree shall not be drawn unless an enquiry by following the procedure envisaged in Section 48 of the Indian Partnership Act is held. The surplus, if any, shall be distributed or divided at the end among the partners or their legal representatives in proportion to the contribution of each partner. For division of immovable property, the procedure followed in a suit for partition may be adopted. It appears that execution petition has already been filed. No further steps can be taken in the execution until final decree is actually drawn. It can be closed and a new execution petition can be filed if necessary after final decree is drawn. With these observations the two appeals stand disposed of.
The trial Court is directed to expedite the adjudication of final decree proceedings. There is no order as to costs.
SD/- JUDGE Ckl/kmv