ORDER
C.Y. Somayajulu, J.
1. ASMP No. 2587 of 2006 is filed to direct the first respondent to pay Rs. 10,000/- per month to the second petitioner or in the alternative place the first petitioner firm in the hands of the second petitioner on deposit of Rs. 4,00,000/-p.a. for the benefit of the firm pending disposal of the appeal and ASMP No. 2588 of 2006 is filed to appoint a Receiver to manage the day to day affairs of the first petitioner firm.
2. Petitioners in these petitions filed the suit seeking dissolution of the first petitioner firm and to direct the first respondent to render true and correct accounts of the firm from 18-3-1998 onwards. After contest by the respondents the trial Court passed a preliminary decree dissolving the first petitioner firm with effect from 31-5-1997 and declared the shares of the different partners and also appointed a commissioner for taking accounts. Aggrieved by the said decree, Defendants 1, 3 to 7, 9 to 11, 14 and 15 preferred the appeal and filed ASMP No. 484 of 2006 seeking suspension of the decree passed by the trial Court. By the order dated 11-7-2006 a learned Judge stayed passing of the final decree only.
3. Now the petitioners, who are the plaintiffs in the suit, came up with the above petitions.
4. The main contention of the learned Counsel for the petitioners is that since the firm stood dissolved and since the first respondent in these petitions who is running the theatre, is not rendering proper accounts and is appropriating the income for himself, in the interests of justice, a Receiver should be appointed to manage the affairs of the theatre, or in the alternative, inasmuch as the second petitioner is prepared to deposit of Rs. 4,00,000/- p.a. he may be permitted to run the theatre or in the alternative, the first respondent may be directed to pay Rs. 10,000/- p.m. to the second petitioner for his sustenance and medical requirements. The contention of the learned Counsel for the first respondent is that the second petitioner, while managing the affairs of the firm, indulged in several irregularities and as such he was expelled from the firm, and being aggrieved thereby second petitioner is sending petitions to various authorities alleging irregularities by the first respondent and had also filed writ petitions in this Court and tried to stall the running of the theatre, and the second petitioner having misappropriated the amounts of the partnership, created promissory notes and got suits filed by the creditors and those suits were dismissed against respondents after contest by them and decrees were passed in those suits only against the second petitioner and contended that inasmuch as the second petitioner is causing hindrance in renewing of licence of the theatre, first respondent, by filing writ petition, sought a direction to the Joint Collector for issuance of licence and thereafter he has been clearing the debts incurred by the second respondent on behalf of the firm and since the irregularities, if any, were committed by the second petitioner but not by the first respondent, there are no ground to appoint a Receiver or to place the second petitioner in management of the theatre. It is also his contention that since the firm still owes certain amounts to others, question of paying any amount to the second petitioner at this stage does not arise.
5. All the events referred to by the learned Counsel for the respondents seems to have taken place prior to the institution of the suit because first respondent admittedly was in management of the theatre even by the date of institution of the suit. The specific case of the respondents is that they expelled the second petitioner from the firm. Issue No. 1 framed by the trial Court relates to the expulsion of the second petitioner. The finding of the trial Court is that inasmuch as no resolution of the partners expelling the second petitioner from the firm is produced, it cannot be said that the second petitioner was expelled by majority of partners. The judgment of the trial Court shows that Exs. B1 to B19 were marked on behalf of the respondent. None of them relate to expulsion of the second petitioner from the firm. As per Section 33 of the Partnership Act, which relates to expulsion of a partner, majority of partners cannot expel a partner unless such power is conferred by the contract between them, and that power is exercise bona fide. The partnership deed admittedly does not contain a clause relating to expulsion of partners from the firm. For that reason and since the resolution of majority of the partners expelling the second petitioner from the firm is produced, prima facie, the contention of the respondents that second petitioner was expelled from the firm cannot be accepted, more so because, no document is produced to show that second petitioner was put on notice of his alleged expulsion from the firm.
6. The finding recorded by the trial Court is that inasmuch as the partnership is at will and since there is no clause in the partnership deed to continue the firm even after the death of one of the partners, the firm stood dissolved on 31-5-1997 on the death of Padarthi Lakshmamma one of the partners of the firm. Even otherwise also since the partnership is at will, on the institution of the suit for dissolution of the partnership, the firm stands dissolved after service of notice upon all the partners as held in Banarsi Das v. Kanshi Ram and Ors. , referred to and relied on by the trial Court. So prima facie the first petitioner firm stood dissolved long prior to the decree of the trial Court. In Sudhansu Kanta v. Manindra Nath AIR 1965 Pat. 144, grounds for appointment of a Receiver in a suit for dissolution of partnership were considered. It is held therein that appointment of Receiver should be made as a matter of course in case of a dissolved firm to wind up the partnership business. The said decision was referred to and followed by a Division Bench of the High Court of Jammu and Kashmir in Tilak Chand Jain v. Darshan Lal Jain and Anr. AIR 1985 J&K 50 and in Sharyau Armando Pereira v. Vishnu Yeshwant Sawant and Anr. AIR 1981 GOA 57.
7. All the above apart, from the contentions of the learned Counsel on both sides, it is clear that parties are trading charges and have no faith in the other. In Sheonarain Jaiswal and Ors. v. Shree Kripa Shankar Jaiswal and Anr. , a Division Bench of Patna High Court held that in a suit for distribution or partition of the assets of a dissolved firm, if it is found that the relations between the partners are strained, Court can appoint a Receiver as a matter of course and so I feel that it is just and convenient to appoint a Receiver to manage the affairs of the firm i.e., first petitioner-theatre during the pendency of the appeal.
8. Since I held that it is just and convenient to appoint a Receiver, the prayer of the second petitioner to keep him in management of the first petitioner theatre on condition of his depositing money, or giving any direction to the first respondent to pay him any amount does not arise.
9. For the above reasons, ASMP No. 2587 of 2006 is dismissed and ASMP No. 2588 of 2006 is allowed. The trial Court is directed to appoint an advocate Receiver to manage the day-to-day affairs of the firm i.e., first petitioner theatre and fix his fee. The Receiver should maintain true and correct account of income and expenditure and file copy of the account into Court once in two months, after giving notice to Counsel for both sides, and deposit monies into Court as per the directions of the Court. No costs.