TaxTMI 
TaxTMI 
2019 (11) TMI 1
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....ife time of late Sri Jai Narayan Misra and late Smt. Hashmatunnisa Begum, they entered into a partnership deed dated 14.04.1982. As stated in the partnership deed, late Smt. Hashmatunnisa Begum is the owner of open land with structures, situated in Paigah Compound bearing No. 156-159 ad-measuring 22,253 square meters approximately. After obtaining exemption from Government of India, Ministry of Defence, New Delhi, under Clause 20(1)(b) of the Urban Land (Ceiling and Regulation) Act, 1976, both the partners have entered into partnership, for carrying on business in real estate, by developing the land which forms the part of Paigah Compound. It appears that a major portion of the land is already developed, but dispute is to an extent of 3381 square meters, which is claimed by the original plaintiff, forming part of property No.156-159 of Paigah Compound. There were only two partners, as per the partnership deed. 4. The plaintiff in Original Suit No. 580 of 1988, filed by late Sri Jai Narayan Misra, died on 04.01.2001, whereas the predecessor of the respondents, late Smt. Hashmatunnisa Begum, died on 17.05.1996. During the life time, the predecessor of the appellants late Sri Jai N....
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....owing Execution Petition, respondents have filed an application under Section 47 of C.P.C., in E.A. No. 6 of 2005, before the Court of II Senior Civil Judge, City Civil Court, Hyderabad, claiming the relief, to dismiss the Execution petition, as the decree is void and un-executable. By a well reasoned Order, dated 01.02.2006, passed by the II Senior Civil Judge, City Civil Court, Hyderabad, allowed the application filed under Section 47 of C.P.C. The said Order is challenged by the respondents, by way of Civil Revision Petition No. 4894 of 2006, before the High Court of Judicature, Andhra Pradesh at Hyderabad. The High Court, vide impugned order, confirmed the Order passed by the Trial Court, holding that the decree obtained against the predecessors of the respondents, namely, late Smt. Hashmatunnisa Begum, is not executable against the legal representatives. 8. We have heard Sri. A.Subba Rao, learned counsel appearing for the appellants and Sri. B. Adi Narayana Rao, learned senior counsel appearing for the respondents, assisted by Sri. Venkateswara Rao Anumolu, Advocate on-record. 9. It is contended by Sri. A.Subba Rao, learned counsel appearing for the appellants that as per t....
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....d that when the partnership itself stands dissolved on death of one of the partners, the appellants claiming right under a decree obtained by the original partner, cannot be executed against the respondents. 13. In this case, it is not in dispute that as per the original partnership deed there were only two partners, namely, late Smt. Hashmatunnisa Begum, who is the owner of the land/predecessor of the respondents and late Sri Jai Narayan Misra, who is the predecessor of the appellants herein. 14. From the Suit filed in O.S. No. 580 of 1988, the original plaintiff has obtained a decree on 14.07.1993 from the Trial Court, which granted the reliefs as under: "1. the defendant and all the persons claiming through the defendant be and that are hereby permanently restrained from carrying the work of developing the property and sale thereof in respect of the suit schedule property; 2. the defendant is hereby directed to sign the layout plan and other documents for submitting to the Cantonment Board, Secunderabad for sanction in respect of the suit schedule property; 3. Each party shall bear their own costs." 15. From a perusal of the relief sought for ....
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....mpose obligations arising under it on any third party, except parties to it. No one but the parties to the contract can be entitled under it or born by it. Such principle is known as 'Privity of Contract'. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy. 19. In the case of Prabhakara Adiga v. Gowri and Others (2017) 4 SCC 97, on which strong reliance is placed by Sri. A.Subba Rao, learned counsel appearing for the appellants, would not render any assistance to support his case, having regard to facts of the case on hand and the rights litigated in the Suit in O.S. No. 580 of 1988, before the II Senior ....
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....ated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 CPC, such a decree can be executed against legal representatives." 21. From a reading of the aforesaid judgment, it is clear that the executable decree depend on the rights litigated by the parties. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by....