JUDGMENT
Pendse, J.
1. These two revision applications can be conveniently disposed of by a common judgment as the parties to the dispute in these two applications are the same and the dispute also is interrelated. The facts to be set out hereinafter would clearly demonsrate the grievance of the applicants in the two petitions.
2. Hari Vishnu Lotlekar and Bhaskar M. Nagvenkar instituted Suit No. 46/69/B in the Court of the Civil Judge, Senior Division, Margao for dissolution and accounts against three defendants, Xembu Purshotam Nagvenkar, Krishna Pandurong Nagvenkar and Sadashiv Nagvenkar. The plaintiffs claimed that the company was constituted by deed dated May 1, 1950, under the provisions of the law of Sociedades por Quotas of 1901 under the name and style of “Nagvenkar and Company”. This company, which is equivalent to a partnership firm under the Partnership Act or private limited company under the Companies Act, consisted of the plaintiffs and the defendants as members. The defendants together held 12 3/4 annas interest in the company while the remaining belonged to the plaintiffs. Defendant No. 1 held the lion’s share of 6 1/4 annas. The suit was dismissed by the trial court on March 29, 1985, on a preliminary objection. The plaintiffs preferred Appeal No. 18 of 1985 before the District Court, Sough Goa at Margao. During the pendency of the appeal, plaintiff No. 2 and defendant No. 1 died. Defendant No. 3 transferred his share to remaining members. The District Court, by judgment dated January 30, 1987, allowed the appeal and remanded the suit to the trial court for disposal on merits. After remand, the legal representatives of defendant No. 1 were brought on record on July 21, 1987. Defendant No. 2 died on August 15, 1987, and his legal representatives of defendant No. 1 were brought on record on July 21, 1987. Defendant No. 2 died on August 15, 1987, and his legal representatives were also brought on record.
3. On November 2, 1987 the plaintiffs filed a an application for amendment of the plaint and the application was numbered as exhibit 137. The plaintiffs claimed that, on the death of defendant No. 2, the company stands automatically dissolved as the number of members stands reduced to one. The plaintiffs claimed that the plaint should be permitted to be amended and the plaintiffs sought a declaration that the sociedate stands dissolved on the death of defendant No. 1 on August 15, 1987. The plaintiffs also sought appointment of the liquidator under article 1.123 of Portuguese Code of Civil Procedure with direction to the liquidator to take account of the company and determine the sums payable towards the share of each of the members. The application was resisted by the legal representatives of defendant No. 2, inter alia, claiming that on the death of defendant No. 2, the suit abates and it is not permissible for the plaintiffs to seek a declaration and accounts in the present suit. According to the legal representatives of defendant No. 2, they were brought on record not in their capacity as members of the company but merely as legal representatives of the deceased member. The trial judge was impressed by the defence and by order dated December 16, 1987, dismissed the application for amendment on the ground that it is untenable in law. The legal representatives of defendant No. 2 have filed a revision application No. 18 of 1988 to challenge certain observations made by the trial court while dismissing the application filed by the plaintiffs for amendment of the plaint. In my judgment the revision application is wholly misconceived. It is not permissible to file a revision application to challenge certain observations made by the trial judge while the final order is in favour of the party. Shri Shinkre, learned counsel appearing on behalf of the legal representatives of defendant No. 2, submitted that the trial judge observed that when the legal representative is brought on record, his status and rights will be the same as of the deceased and this observation is not correct. Learned counsel urged that, under the Portuguese Law, when a member of the company dies, his legal representatives will not automatically become the member of the company unless a separate deed of conveyance is executed. Learned counsel urged that, taking into consideration this position in law, the observation of the trial judge is incorrect. I am not inclined to entertain this submission and exercise my jurisdiction under section 115 of the Code of Civil Procedure. The trial judge has ultimately rejected the application for the amendment and it is not open to a party to file a revision application to challenge some of the observations. Accordingly, revision application No. 18 of 1988 is dismissed with costs.
4. The plaintiffs filed an application, exhibit 140 on December 21, 1987 seeking appointment of Mr. D.R. Mungrey, Chartered Accountant, as a liquidator. The plaintiffs claim that on the death of defendant No. 2, the company stands dissolved and the entire assets of the company are in possession of the legal representatives of defendant No. 2. The plaintiffs claim that it is desirable that the liquidator should take possession of the assets and determine the liabilities and thereafter distribute the assets according to the shares. The application were resisted by the legal representatives of defendant No. 2 on the ground that the application for appointment of liquidator is not maintainable as the suit had abated. It is also claimed that the proper remedy of the plaintiffs is to institute a fresh civil suit. The trial judge, by order dated January 6, 1988 turned the defence and appointed Mr. Mungrey, Chartered Accountant, as the liquidator with a direction to ascertain the assets of the company and pay the debts and liabilities and then submit the report. The legal representatives of defendant No. 2 have filed Civil Revision Application No. 19 of 1988 to challenge the legality of this order.
5. Shri Shinkre, learned counsel appearing on behalf of the applicants, submitted that the appointment of liquidator is not correct because the assets of the company are in the hands of legal representatives of defendant No. 2, not in their capacity as members of the company. I am not impressed by the submission. It is not permissible for the legal representatives of defendant No. 2 to enjoy the assets of the company when the legal representatives are not members of the company. Indeed, the plaintiff is the only member of the company who is alive and it is the plaintiff who should have really got the assets in hand. In these circumstances, the appointment of the liquidator made by the trial judge is in accordance with law and justice and equity and is not required to be disturbed in revisional jurisdiction. Shri Shrinkre then submits that even if the liquidator is appointed, the liquidator should be directed not to disturb the possession of the legal representatives of defendant No. 2 and the legal representatives should be permitted to run the business as agents of the liquidator on terms and conditions to be settled. In my judgment, the request made by learned counsel is just. There would be no advantage in the liquidator taking over the business as the liquidator would not be in a position to run the business efficiently. The liquidator should take over the business but then appoint the legal representatives of defendant No. 2 as agents to carry on the business till all the assets and liabilities are determined. They liquidator should settle the terms and conditions on which the legal representatives should be appointed as agents and these terms and conditions shall be certified by the trial court. It is open for the parties to approach the trial court to suggest appointment of any other person as liquidator and the trial court may substitute another liquidator, if the parties so agree.
6. Accordingly, Revision Application No. 19 of 1988 also fails and rule is discharged, but without any order as to costs.