MILAP CHANDRA JAIN, J. - (1.) THIS appeal has been filed against the' preliminary decree passed by the learned Additional District Judge, No. 2, Sri Ganganagar dated August 3, 1990 by which the shares of the parties and the date of dissolution of the partnership have been adjudicated and the parties have been directed to produce all the account books of the partnership firm since April 2, 1981 before the Commissioner by August 18, 1990 and the Commissioner has been required to examine the account-books and to submit his report.
(2.) THIS preliminary decree has been challenged by the learned counsel for the plaintiff-appellant on two grounds namely, in directing the plaintiff-appellant only to produce the account-books and in examining the accounts from the commencement of the partnership business. His contention is that the accounts were duly settled in between the parties on March 31, 1985, as such there is no question of examining the accounts of the period prior to this date, and the accounts can be taken by the Commissioner with effect from April 1, 1985. He relied upon Suraj Bahadur vs. Mahadev (1 ). In reply, it is contended by the learned counsel for the defendant-respondents that it has nowhere been pleaded in the plaint that accounts upto March 31, 1985 were settled in between the parties. He also contended that the plaintiff-appellants have filed a photostat copy of the power of attorney executed by all the partners in favour of the partner Indra Kumar (plaintiff-appellant no. 1) authorising him to carry on the business of the partnership firm for and on their behalf and as such all the account-books were with him. There is no force in this appeal. It is simply stated in para no. 7 of the plaint that amounts of Rs. 1,68,711/- and Rs. 1,46, 628. 39p. were out" standing against the defendants Savitri Devi and Deeplata respectively on March 31, 1985, they did not pay the same despite several demands and as a result thereof the financial position of the firm deteriorated. In the prayer (Kha) it has simply been prayed that the Commissioner be appointed for taking the accounts of the firm. It has not been prayed that the account be taken with effect from April 1, 1985 and not with effect from April 2, 1981. It has nowhere been stated in the plaint that accounts till March 31, 1985 were settled in between the parties as has been mentioned in para no. 4 of the memorandum of appeal. It has also not been mentioned in the notice given by the plaintiffs to the defendants that the accounts till March 31, 1985 were settled in between the parties. In view of these facts and circumstances, it is very difficult to hold that accounts till March 31, 1985 were settled in between the parties and amounts of Rs. 1,68,711/- and Rs. 1,46,628. 39p. were found outstanding against the defendant Savitri Devi and Deeplata respectively in favour of the firm. The learned trial court has rightly directed the plaintiff-appellants to produce all the account books of the firm since its commencement. Admittedly, the plaintiff-appellants have themselves filed a photostat copy of the power of Attorney executed by all the partners of the firm in favour of Indra Kumar (plaintiff-appellant no. 1 ). According to it, the entire business of the firm was to be carried out and looked after and the accounts books were to be maintained by him. It has also nowhere been stated in the plaint that the account-books were in the possession of the defendant-respondents. The learned counsel for the defendant-respondents now submits that the plaintiff-appellants are running the factory under the name and style of the firm, they are interested in delaying the disposal of the application moved under order 40 rule 1, C. P. C. by the defendants and requests that the trial court be directed to expedite the disposal of the said application.
(3.) CONSEQUENTLY, the appeal is dismissed with costs. The trial court will expeditiously decide the application moved under order 40 rule 1, C. P. C. The Commissioner will submit his report before the trial court within three months from today. The plaintiff-appellants are directed to produce forthwith all the account-books of the firm since its commencement i. e. from April 2, 1981, before the Commissioner. A certified copy of this order will be produced before the Additional District Judge no. 2, Sri Ganganagar and he will see that the record of the case is received by him within ten days of the receipt thereof and a date is fixed for hearing arguments on the said application moved under order 40 rule 1, C. P. C. ;