O.P.Garg, J. - (1.) The present writ petition under Article 225 of the Constitution of India involves the determination of the validity, justification, correctness and properties of the order of appointment of receiver under provisions of Order XL Rule 1 of the Code of Civil Procedure in a suit for the relief of dissolution of the firm, rendition of accounts and partition and distribution of the properties and assets between the partners.
(2.) The woodcut profile of the case is that a firm know as M/s. Ayodhya Prasad and Sons, a partnership firm was constituted and brought into existence for carrying on the business in Burmah Shell Products, Hindustan Livers Limited products and Cement etc. on 1st April, 1953. The partnership business of the firm was initially spread-over at five places, namely, Bilsi, Shaswan, Mathura, Ujhiani and Badaun. After sometimes, the business establishments at Mathura and Badaun were closed down on account of the policy of the Government to promote Indian Oil Corporation in preference to Burmah Shell. The firm business further got fillip as it was expanded in Delhi, Kasganj, and Biswauli. The headquarters of the firm were at Ujhiani where the consolidated account of all the branches of the firm business were main tained. The partners of the firm, as would be apparent from the deed of partnership, which is Annexure C.A. 1 to the counter affidavit, were (1) Krishna Bhagwan Agarwal (present petitioner No. 1), (2) Ayodhya Prasad Agarwal (3) Sharawan Kumar Agarwal (plaintiff-respondent No. 2), (4) Krishna Murari and (5) Hari Bhagwan. Krishna Bhagwan Agarwal, petitioner No. 1 had 50 per cent share of the profit or loss in the business while Ayodhya Prasad Agarwal had 20 per cent share. The other three remaining partners, namely, Sharawan Kumar, Krishna Murari and Hari Bhagwan each had a share to the extent of 10 per cent The various branches of the partnership firm were managed by different partners for the sake of convenience and efficient working. Ayodhya Prasasd Agarwal was in the control and super vision of the branch at Ujhiani while Hari Bhagwan Agarwal was looking after the -business at Bilsi and Shaswan. Krishna Bhagwan Agarwal petitioner No. 1 came to control and supervise the business of the branches at Delhi, Kasganj, Bisauli, though Sharwan Kumar is alleged to have managed Delhi and Kasganj branches up to the year 1979. Sharawan Kumar Agarwal, it appears, was aggrieved on account of the fact that the other partners who were in collusion with each other and had stopped working honestly, failed to submit the true accounts after 31.3.1979 and that the Income and Sales Tax returns had not been filed regularly with the result recovery of huge amounts were taken out and he was harassed for the payment of dues which he alone was not liable to pay. He served a notice dated 21.4.1981 on all the partners manifesting his intention to dissolve the partnership which was At Will and thereafter instituted a suit No. 65 of 1982 in the court of Civil Judge, Badaun for the relief of dissolution of partnership, rendition of accounts and for partition and distribution of the properties and assets of the firm. The details of all the branches of partnership business are given at the foot of the plaint. With the filing of the suit, the plaintiff-respondent No. 2 moved an application for appointment of receiver. The contesting partners who are defendant No. 1 to 4 to the suit, filed the objection as well as written statement. The plea taken by them is that the plaintiff-respondent No. 2 had no share in the patnership business and its properties and that the firm had been dissolved on 30.9.1979 with the consent of all the partners after settling the accounts and that a new firm was brought into existence on 1.10.1979 of which the present petitioner Krishna Bhagwan and Vishnu Bhagwan only are the partners. It was further maintained that Bisauli Petrol Pump is only property subject to partition and the petitioner respondent No. 2 has no share in the properties of the other branches of the business establishment. Ayodhya Prasad and Krishna Murari who were defendant No. 2 and 3 in the suit respectively died on 18.1.1980 and 20.9.1991. Their legal heirs and representatives have been substituted. The application for the appointment of the receiver moved by the plaintiff respondent No. 2 was rejected by the trial Court on 11.9.1997. The plaintiff-respondent No. 2 preferred a Misc. Civil Appeal No. 59 of 1992 which came to be decided by the 1st Additional District Judge. Badaun who passed an order dated 9.2.1999 for the appointment of receiver. To challenge the said order passed in appeal the petitioners have involved the extraordinary jurisdiction of this court under Article 225 of the Constitution of India with the prayer that the order of appointment of receiver dated 9.2.1999 passed by the 1st Additional District Judge, Badaun in Misc. Civil Appeal No. 59 of 1992 be quashed.
(3.) Counter and rejoinder affidavits have been exchanged and with the consent of the parties' counsel this writ petition is being finally disposed of on merits in accordance with the Rules of the court.;