IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1130 of 2004()
1. K.EASWARY, KUNNUVILA VEEDU,
... Petitioner
2. M.KOCHUCHERUKKAN, DO. DO.
3. A.LEELA, DO. DO.
Vs
1. R.ACHUTHAN, PLAKODU-KONATHU
... Respondent
2. ANILKUMAR, KALLUMTHAZHATHU,
3. DILEEP KUMAR, DO. DO.
4. SUNIL KUMAR, DO. DO.
5. ANITHA KUMARI, DO. DO.
6. AJAY KUMAR, DO. DO.
7. K.S.KRISHNA SASTHRI,
8. R.RAGHAVAN, PLAKODUKONATHU,
9. S.ACHUTHAN, KUNNUVILA VEEDU,
For Petitioner :SRI.V.P.REGHURAJ
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.No.1130 of 2004
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Dated this the 16th day of February, 2010
O R D E R
The revision petitioners are defendants 3,
5 and 7 in O.S.No.32/82 on the file of the
Munsiff’s Court, Attingal. The above suit was
filed to remove the 6th defendant, who is no more,
who was managing the affairs of a cashew factory
of the firm viz., M/s.Ambedkar Memorial Cashew
Factory, Andoor. Previously, another suit had
been instituted as O.S.No.54/79 by the same
plaintiff as O.S.No.32/82 with four others for
preparing a scheme for management of the above
factory, belonging to the firm. That suit, after
trial, was dismissed from which an appeal was
preferred as A.S.No.117/81 before the Sub Court,
Attingal. Pending that appeal, the second suit
O.S.No.32/82, after trial, was decreed declaring
the 1st defendant unfit to hold the post of the
Managing Director. Under the decree, 9th defendant
was appointed in the suit as the receiver to
C.R.P.No.1130 of 2004
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manage the factory. Against the decree in
O.S.No.32/82 an appeal was preferred as
A.S.No.35/85. That appeal was heard along with
the appeal preferred from O.S.No.54/79.
A.S.No.35/85 was dismissed, and A.S.No.117/81 was
allowed, reversing the dismissal of O.S.No.54/79
directing preparation of a scheme for management
of the factory. The receiver appointed was
directed to continue till the passing of the final
decree approving the scheme. There was a second
appeal against the judgment of the appellate
court. That appeal was dismissed. During the
pendency of the final decree proceedings, the
present petitioner moved an application for
removal of the receiver stating that the previous
firm had been dissolved and a new firm was
constituted in its place. In other words, they
canvassed a case that new scheme in respect of the
firm as directed under the decree was not called
for and the receiver has to be removed handing
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over the factory to the newly constituted firm.
Plaintiffs in O.S.No.32/82 too moved another
application for removal of the receiver imputing
mis-management of the factory. Both the
applications were considered together and disposed
by the learned Munsiff by common order dated 13th
August, 2001. The petition moved by the revision
petitioners was dismissed for the reason that they
did not produce any documents, nor let in any
evidence to establish their case that a new firm
after the dissolution of the earlier firm had been
constituted. The application moved by the
plaintiffs in O.S.No.32/82 was dismissed since
they did not produce any material supporting the
mis-management imputed against the receiver. The
petitioners alone challenged the order in their
I.A.No.467/95 preferring an appeal as
C.M.A.No.16/03 before the Sub Court, Attingal.
Learned District Judge, concurring with the
conclusion formed by the court below, dismissed
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that application. Feeling aggrieved, the revision
petitioners have preferred this revision.
2. Though notice on the revision had been
served on the respondents, except the 8th
respondent – the receiver, others remain absent.
I heard learned counsel for the petitioners and
also the counsel appearing for the receiver.
3. At the time of hearing, the learned
counsel for the petitioners canvassed only a
limited relief for a fresh opportunity to
substantiate their case that the firm had been
dissolved and in its place a new firm was
constituted.
4. The preliminary decree passed had
directed the appointment of a Senior Advocate as
Commissioner at the instance of the plaintiffs for
framing a scheme for management of the factory and
the firm and for settling the claims of the first
plaintiff and the 7th defendant, as seen from the
common judgment rendered in A.S.No.35/85 and
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117/81 dated 13.11.1987, a copy of which was
handed over to me for perusal by the learned
counsel for the revision petitioners. So much so,
prima facie, it is seen, the decree granted by the
court below envisages something more than the
management of the factory and the firm, settling
the claims of some of the parties as well. So
much so, the removal of the receiver appointed by
the court for running the factory belonging to the
firm till a final decree is passed cannot be
decided solely on the basis of the dissolution of
the firm or its reconstitution. That question may
have to be looked into with reference to whether
a scheme in terms of the decree is to be prepared
or not and also what further steps are needed to
settle the rights of other co-owners the 1st and 7th
defendants in the suit as directed under the
decree passed by the appellate court. So,
essentially, these questions can be considered
only in the proceedings taken before the court in
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continuation of the preliminary decree,
irrespective of the question whether a final
decree is to be passed in the suit or not in case
the firm has already been dissolved. In the given
facts of the case, I find, the revision
petitioners’ right to claim such relief should not
be foreclosed by the orders passed by the two
courts below, since the question of removal of the
receiver appointed by the court alone, it is seen,
was canvassed by the revision petitioners on the
premise that the firm had been dissolved and in
its place a new firm was constituted. The
impugned orders declining the relief canvassed by
them shall be treated as precluding them from
challenging removal of the receiver alone, but not
of canvassing before the court below the
reconstitution of the firm, after its dissolution,
for appropriate orders on the question whether a
scheme has to be framed in the suit in pursuance
of the preliminary decree passed earlier. I also
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make it clear that the dismissal of the
application for removal of the receiver filed by
the petitioner will in no way interdict them from
canvassing for appropriate reliefs taking
appropriate proceedings as envisaged by law for
safeguarding their interests and rights, if any,
over the property involved in the suit.
Civil Revision Petition is disposed of as
above.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
SK/-
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