Turlapati Murali Krishna vs Turlapati Hanumantha Rao 11 Ors.
2021 Latest Caselaw 4955 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No. 1143 of 1999

JUDGMENT:

The appellant was the plaintiff in O.S.No.503 of 1980 on the file of

the Court of the learned II Additional Subordinate Judge (Senior Civil

Judge), Vijayawada. The respondents were the defendants.

2. The appellant laid the suit for dissolution of the 6th respondent

firm and for rendition of accounts. On contest, a preliminary decree was

passed in this suit on 20.07.1982 declaring that the appellant is entitled to

15% of the profits of the 6th respondent among other directions.

3. A commissioner was appointed directing to determine this 15%

share of the profits of the 6th respondent by the trial Court when passing

the preliminary decree.

4. It appears, an application to pass a final decree was filed by the

appellant in terms of the preliminary decree. A judgment was passed on

31.07.1986 by the trial Court, without referring to such proceedings being

related to passing a final decree. The learned commissioner reported that

the appellant did not co-operate in execution of the warrant and acting

upon the same it was confirmed. The trial Court further held that the

contention of the respondents that the accounts were already settled, who

need not pay any amount to the appellant, is acceptable. Thus, by the

judgment dated 31.07.1986 the trial Court held accordingly.

5. In appeal in A.S.No.36 of 1989 on the file of the Court of the

learned II Additional District Judge, Krishna at Vijayawada, the same was

confirmed, while also considering the plea of the respondents that the

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claim of the appellant was adjusted outside the Court, under an

agreement dated 21.12.1986 between the appellant and the respondents.

6. Questioning these observations and findings, the appellant has

presented this second appeal.

7. Heard Sri V.S.Prasad, learned counsel, for Sri Y.Nagaiah, learned

counsel for the appellant and Sri Sai Gangadhar Chamarthy, learned

counsel for the 4th respondent.

8. This second appeal was admitted on the substantial questions of

law set out in ground No.16 of the memorandum of appeal of the

appellant.

9. These substantial questions predominantly relate to nature of

judgment of the trial Court as well as the appellate Court, meeting the

requirements of Section 2(8) CPC and maintainability of I.A.No.2177 of

1996 filed in the appeal by the respondents for recording adjustment of

the preliminary decree under the alleged agreement dated 21.12.1996.

Related question is in respect of bar of time in recording such adjustment

by the appellate Court. They also relate to the failure of the appellate

Court in remanding the matter to the trial Court for fresh consideration

and failure to exercise jurisdiction therefor.

10. As seen from the judgment of the trial Court dated 31.07.1986,

there is no indication that the learned trial Judge was considering the

matter as a final decree petition filed pursuant to preliminary decree dated

20.07.1982. The dissolution of the 6th respondent firm came into effect on

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31.07.1980 and the preliminary decree directed ascertainment profits

payable to the appellant at 15%, by the above date.

11. The trial Court completely acted upon the report of the

commissioner who expressed his inability to execute the warrant and

determine quantum of profits payable to the appellant pursuant to the

preliminary decree. The complaint that the appellant did not cooperate in

execution of the warrant, was apparently on account of the involvement

of the learned counsel appearing for him at that stage in an accident and

who was undergoing treatment. In such circumstances, when there is

already declaration of entitlement of the profits in favour of the appellant,

the learned commissioner could have waited for some more time before

returning the warrant on such premise.

12. The trial Court is not justified in the above circumstances in

accepting the report of the learned commissioner. Considering that part of

the so called judgment of the trial Court in accepting the version of the

respondents that the claim of the appellant in this respect was already

settled, without there being any opportunity to any of the parties to lead

evidence in that respect or place material, recording such findings by the

trial Court is completely uncalled for. The whole approach of the trial

Court in this context is highly improper.

13. The trial Court did not address the whole matter bearing in

mind that it was a final decree application which it was deciding and went

on considering the matter as if its judgment was an extension to the

preliminary decree.

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14. It is unfortunate that the learned appellate Judge chose to

accept the findings of the learned trial Judge. On this score even the

judgment of the appellate Court suffers the same malady.

15. In the course of appeal, a petition was filed for recording

adjustment outside the Court of the claim of the appellant in I.A.No.2177

of 1996 under Section 151 CPC. This alleged adjustment is based on an

agreement entered into among these parties on 21.12.1986. It is on

record that the appellant resisted such claim of the respondents and

sought to explain the circumstances under which he was made to sign in

that agreement.

16. However, the learned appellate judge chose to consider that

the appellant had admitted his signature in this agreement and its terms

and conditions. No opportunity was given to the appellant to lead any

evidence in that context. However, the appellate Court held that the

appellant did not place any material in support of such contention in

opposing the above petition. Further observation of the learned appellate

Judge is that till the aforestated agreement is set aside by any competent

Authority or Court, it is binding on the appellant. Basing on its terms, the

learned appellate Judge further observed that the appellant cannot

continue the proceedings in the appeal and that the respondents are

authorized to get them terminated lawfully.

17. Without inviting the parties to let-in evidence in this respect

and more particularly without considering the question of limitation

applicable in such circumstances in getting an adjustment recorded, of

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satisfaction of the preliminary decree in favour of the appellant, the

learned appellate Judge is not right in recording these observations.

18. As rightly contended for the appellant, the course for the

appellate Court having regard to the nature of the so-called judgment of

the trial Court was to remand the matter for fresh consideration. Instead

the appellate Court erroneously chose to support the judgment of the trial

Court and the reasons stated therein.

19. Therefore, in these circumstances, since the approach of both

the Courts below is not in legally tenable terms, that grossly erred in

drawing such conclusions and inferences, it is now required for this Court

to interfere. This course is required in the interests of justice.

20. The course now left is to remand this matter to the trial Court

for fresh consideration of the pleas of the appellant, giving opportunity to

all the parties and to decide the matter afresh. Though this case is more

than two decades old, this Court has no other option in the circumstances

to direct likewise, which step is required to set right the situation.

21. In the result, the second appeal is allowed and the decree and

judgment of the appellate Court and in turn that of the trial Court stand

set aside. The matter is remanded to the trial Court for fresh

consideration in all respects and in accordance with law. It shall not be

influenced by earlier proceedings and shall decide independently on the

material. The trial Court shall issue notice to the parties concerned give

them an opportunity to be heard, to lead evidence if any and dispose of

the matter in accordance with law preferably within a period of six (06)

months. The trial Court is directed to appoint a commissioner afresh for

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the purpose required in terms of the preliminary decree dated 20.07.1982

and shall follow the directions therein towards rendition of accounts of the

respondent no.6. Thereafter the share payable to the appellant shall be

arrived at. No costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

_________________________ JUSTICE M.VENKATA RAMANNA Dt:03.12.2021 RR

MVR,J S.A.No.1143 of 1999

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.1143 of 1999

Dt:03.12.2021

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