S. P. MISRA & ORS.versusMOHD. LAIQUDDIN KHAN & ANR.

                         [2019] 13 S.C.R. 497                           497


                       S. P. MISRA & ORS.                               A
                                 v.
              MOHD. LAIQUDDIN KHAN & ANR.
                  (Civil Appeal No. 3311 of 2015)
                        OCTOBER 18, 2019                                B
    [INDU MALHOTRA AND R. SUBHASH REDDY, JJ.]
       Indian Partnership Act, 1932 – s.42(c) – Predecessor-in-
interest of the appellants and that of the respondents entered into
partnership for carrying on business in real estate, by developing
                                                                        C
the land which formed part of Paigah Compound – Predecessor-
in-interest of the respondents is the owner of open land with
structures situated in Paigah Compound bearing no.156-159 ad-
measuring 22,253 sq. mtrs. approx. – Predecessor of the appellants
filed suit – Major portion of the land was developed– Dispute to an
extent of 3381 sq. mtrs., claimed by the plaintiff, forming part of     D
Property No.156-159 of Paigah Compound – Suit decreed –
Predecessor of the appellants and the respondents died – Appellants
filed Execution Petition before the Trial Court – In the Execution
Petition, respondents filed application u/s.47, CPC, 1908 – Allowed
– Challenged by the respondents – Allowed by the High Court – On
                                                                        E
appeal, held: Reliefs sought in execution petition are going beyond
the scope of the decree – Executing Court cannot travel beyond the
decree – In the present case, there were only two partners, the
partnership itself stand dissolved, in view of death of a partner –
Once the partnership comes to an end, by virtue of death of one of
the partners, there will not be any partnership existing in which       F
legal representatives of late respondents could be taken in – Decree
obtained by late predecessor of the appellants against late
predecessor of the respondents, in pursuance of the partnership
deed, cannot bind the legal representatives of late respondents, as
such, the decree is not executable against them – When such legal
                                                                        G
representatives are not parties to the contract, such contract cannot
confer rights or impose obligations arising under it on any third
party, except parties to it – Executable decree depend on the rights
litigated by the parties – Original decree was obtained against the
predecessor of the respondents, who was party to partnership deed–
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                                497
498            SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     Thus, when the partnership stands dissolved statutorily, by operation
      of law, in view of provision u/s. 42(c) of the 1932 Act, the question
      of execution in pursuance of the decree does not arise – No error
      committed by the High Court by dismissing the Civil Revision Petition
      filed by the appellants – Code of Civil Procedure, 1908 – s.47.
B           Dismissing the appeal, the Court
             HELD : 1.1 In the case on hand, as much as there were
      only two partners, the partnership itself stand dissolved, in view
      of death of a partner. It is true that as per the deed of partnership,
      the partners have agreed, in the event of death of either party,
C     their respective legal representatives shall automatically become
      partners in the partnership firm and they shall continue to act as
      partners of the firm, till the venture envisaged under said
      partnership is completed and such legal representatives who
      become partners shall have the same rights and shall be subject
      to same liabilities and responsibilities, as the deceased partner.
D     Once the partnership comes to an end, by virtue of death of one
      of the partners, there will not be any partnership existing in which
      legal representatives of late predecessor-in-interest of the
      respondents could be taken in. The judgment and decree obtained
      by late predecessor-in-interest of the appellants against late
E     predecessor-in-interest of the respondents, in pursuance of
      partnership deed dated 14.04.82, cannot bind the legal
      representatives of late predecessor-in-interest of the
      respondents, as such, decree is not executable against them. The
      legal representatives of late predecessor-in-interest of the
      respondents are not the partners of the original partnership deed
F     dated 14.04.82. When such legal representative are not parties
      to the contract, such contract cannot confer rights or impose
      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’.
G     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,
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 S. P. MISRA & ORS. v. MOHD. LAIQUDDIN KHAN & ANR.                    499


against the third parties, such clauses will not bind them, such of   A
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.
[Paras 16-18] [505-A-G]
       1.2 The executable decree depend on the rights litigated       B
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        C
the partnership firm, they are not bound by the decree obtained
by the predecessor of the appellant. More so, when it is a case of
the respondents that they have not derived any assets and
liabilities arising out of the partnership firm, decree obtained by
the original plaintiff is not executable against the respondents.     D
During the life time of late predecessor-in-interest of the
respondents, she also filed Suit in O.S. No. 1061 of 1990 on the
file of VII Senior Civil Judge, City Civil Court, Hyderabad, for
dissolution of partnership firm constituted under deed of
partnership dated 26.06.1977 and also for rendition of accounts.
It is true that same is a different partnership but, parties are      E
same. In such suit filed by late predecessor-in-interest of the
respondents, predecessor of the appellants, filed IA No. 1649 of
1997, to dismiss the said suit, claiming that in view of death of
one of the partners, during the pendency of the suit, there is no
room for third party to be introduced. It was the case of late        F
predecessor-in-interest of the appellants that partnership stood
dissolved. However, in a similar situation arising out of
partnership deed dated 14.04.1982, the appellants claim the
decree is executable against the respondents, who are the legal
heirs of the judgment-debtor. The respondents were not parties
to the partnership deed and the partnership stands dissolved, in      G
view of death of one of the partners, the respondents have not
derived the benefit of assets of the partnership firm, the decree
obtained by the predecessor of the appellants, is not executable
against the respondents. The Trial Court rightly allowed the
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500             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     application filed by the respondents under Section 47 of C.P.C.
      and there is no error committed by the High Court, in confirming
      such order by dismissing the Civil Revision Petition filed by the
      appellants herein. [Paras 21-23] [507-C-H; 508-A]
            Prabhakara Adiga v. Gowri and Others (2017) 4 SCC
B           97 : [2017] 1 SCR 724 – referred to.
                               Case Law Reference
      [2017] 1 SCR 724                   referred to               Para 19
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3311
C     of 2015.
            From the Judgment and Order 09.04.2009 of the High Court of
      Andhra Pradesh at Hyderabad in Civil Revision Petition No. 4894 of
      2006.
            A. Subba Rao, Adv. for the Appellants.
D
           B. Adi Narayana Rao, Sr. Adv., Venkateswara Rao Anumolu,
      Chandra Mohan Anisetty, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            R. SUBHASH REDDY, J.
E            1. This civil appeal is filed by the appellants, in Civil Revision
      Petition No. 4894 of 2006, dated 09.04.2009, passed by the High Court
      of Judicature, Andhra Pradesh at Hyderabad, whereby the High Court
      has confirmed the order dated 01.02.2006, in E.A. No. 6 of 2005 in E.P.
      No. 122 of 2003 in O.S. No. 580 of 1980, passed by the II Senior Civil
F     Judge, City Civil Court, Hyderabad.
             2. By the aforesaid order, learned II Senior Civil Judge, City Civil
      Court, Hyderabad, allowed the application filed by the respondents, under
      Section 47 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’).
              3. All the appellants herein are legal heirs of late Sri Jai Narayan
G     Misra and all the respondents herein are legal heirs of late Smt.
      Hashmatunnisa Begum. During the life 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
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  S. P. MISRA & ORS. v. MOHD. LAIQUDDIN KHAN & ANR.                            501
                 [R. SUBHASH REDDY, J. ]

structures, situated in Paigah Compound bearing No. 156-159 ad-                A
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.
                                                                               B
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          C
respondents, late Smt. Hashmatunnisa Begum, died on 17.05.1996. During
the life time, the predecessor of the appellants late Sri Jai Narayan Misra,
has filed a Suit in O.S No. 580 of 1988, on the file of II Additional Judge,
City Civil Court, Hyderabad, claiming the following reliefs:
      “1. to grant permanent injunction against the defendant restraining      D
      the defendant and all the persons claiming through the defendant
      from preventing the plaintiff from carrying out the work of
      preparing layout plan, developing the property and sale thereof, in
      an extent of 3,381 square meters;
      2. to grant mandatory injunction directing the defendant to sign         E
      the layout and other documents submitting to the Cantonment
      Board for sanction in respect of the land admeasuring 3,381 square
      meteres forming part of Paigah Colony situated at S.P. Road,
      Secunderabad, and for costs.”
       5. The said Suit was decreed on 14.07.1993, by the Trial Court,         F
granting the following reliefs:
      “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;                                   G
      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.”
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502             SUPREME COURT REPORTS                             [2019] 13 S.C.R.


A           6. After death of the original plaintiff, the legal heirs of the plaintiffs
      have filed Execution Petition before the Trial Court, by claiming the
      following reliefs:
             “1. to direct the J.Dr. No.2 to 4 to sign the layout plan for submitting
             to the Cantonment Board, Secunderabad for sanction in respect
B            of the suit schedule property;
             2. to sign new/revised layout drawing, earmarking the additional
             land for development;
             3. to break the existing boundary wall at the appropriate place to
             enable to have access into the additional land for which layout
C            plan is being submitted;
             4. to sign a letter to Cantonment Board, undertaking not to claim
             any water connection for the next 10 years;
             5. to sign all other documents that may be required now or in
D            future in connection with the development of the additional land;
             6. to join in executing sale deeds and present the memo for
             registration, in favour of purchasers of the suit land, all under
             Order XXI Rules 32 and 34 and Section 151 C.P.C.”
             7. In the following Execution Petition, respondents have filed an
E     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
F
      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
G     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.
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    S. P. MISRA & ORS. v. MOHD. LAIQUDDIN KHAN & ANR.                            503
                   [R. SUBHASH REDDY, J. ]

       9. It is contended by Sri. A.Subba Rao, learned counsel appearing         A
for the appellants that as per the terms of the partnership deed, in the
event of death of either of the party, their legal representatives shall
automatically become partners in the partnership firm and they shall
continue to act as partners of the firm till the venture envisaged under
partnership is completed and such legal representatives, who become
                                                                                 B
partners, shall have same rights and shall be subject to same liabilities
and responsibilities, as the deceased partner. The relevant clauses of the
partnership deed dated 14.04.1982, read as under:
         “This partnership shall not be dissolved till the completion of the
         venture except by mutual agreement reduced in writing.
                                                                                 C
            The parties hereby expressly and specifically agree that in the
         event of death of either party their respective legal representatives
         shall automatically become partners in the partnership firm and
         they shall continue to act as partners of the firm till the venture
         envisaged under this partnership is completed and such legal
         representatives who become partners shall have the same rights          D
         and shall be subject to the same liabilities and responsibilities as
         the deceased partner.”
        10. By referring to the contents of the partnership deed, it is
contended by Sri. A. Subba Rao, learned counsel appearing for the
appellants that the decree obtained by the predecessor of the appellants         E
is executable and against the respondents, who are the legal
representatives of the original partner. The Trial Court as well as the
High Court have erroneously held that the decree which has become
final, is not executable against the respondents.
      11. Learned counsel has placed strong reliance on a judgment of            F
this Court, in the case of Prabhakara Adiga v. Gowri and Others1.
       12. On the other hand, it is the contention of Sri. B. Adi Narayana
Rao, learned senior counsel appearing for the respondents that as there
were only two partners and on death of one of the partners, partnership
stands dissolved, in view of the provision under Section 42(c) of the            G
Partnership Act, 1932. It is submitted that when the right litigated upon
is readable, only in such event, decree can be executed. It is submitted
that respondents were not the partners in the partnership deed and if,
any clause in the partnership deed which runs contrary to statutory
1
    (2017) 4 SCC 97                                                              H
504             SUPREME COURT REPORTS                              [2019] 13 S.C.R.


A     provisions are void, such clauses are against the public policy. It is
      submitted 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
B     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
C     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
D            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.”
E
              15. From a perusal of the relief sought for in the Execution Petition,
      by the legal heirs of the original plaintiff, itself makes it clear that reliefs
      sought in Execution Petition are going beyond the scope of the decree.
      It is fairly well-settled that, the Executing Court cannot travel beyond
      the decree. The only question which fell for consideration before the
F     Trial Court in E.A. No. 6 of 2005, was whether the decree obtained by
      the predecessor of the appellants, can be executed against the appellants
      or not. Section 42 of the Partnership Act, 1932, deals with the situations
      of dissolution of partnership, on happening of certain contingencies. As
      per the said provision, subject to contract between the partners, a firm is
      dissolved when:
G
             (a) if constituted for a fixed term, by the expiry of that term;
             (b) if constituted to carry out one or more adventures or
             undertakings, by the completion thereof;
             (c) by the death of a partner; and
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  S. P. MISRA & ORS. v. MOHD. LAIQUDDIN KHAN & ANR.                             505
                 [R. SUBHASH REDDY, J. ]

      (d) by the adjudication of a partner as an insolvent.                     A
      16. In the case on hand, as much as there were only two partners,
the partnership itself stand dissolved, in view of death of a partner.
       17. It is true that as per the deed of partnership, the partners have
agreed, in the event of death of either party, their respective legal
representatives shall automatically become partners in the partnership          B
firm and they shall continue to act as partners of the firm, till the venture
envisaged under said partnership is completed and such legal
representatives who become partners shall have the same rights and
shall be subject to same liabilities and responsibilities, as the deceased
partner.                                                                        C
       18. At this stage, it is to be noticed that once the partnership comes
to an end, by virtue of death of one of the partners, there will not be any
partnership existing in which legal representatives of late Smt.
Hashmatunnisa Begum could be taken in. The judgment and decree
obtained by late Sri Jai Narayan Misra against late Smt. Hashmatunnisa          D
Begum, in pursuance of partnership deed dated 14.04.1982, cannot bind
the legal representatives of late Smt. Hashmatunnisa Begum, as such,
decree is not executable against them. The legal representatives of late
Smt. Hashmatunnisa Begum are not the partners of the original
partnership deed dated 14.04.1982. When such legal representative are
not parties to the contract, such contract cannot confer rights or impose       E
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            F
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       G
are also opposed to public policy.
      19. In the case of Prabhakara Adiga v. Gowri and Others1, on
which strong reliance is placed by Sri. A.Subba Rao, learned counsel
appearing for the appellants, would not render any assistance to support
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506             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     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 Civil Judge, City
      Civil Court, Hyderabad. In the case of Prabhakara Adiga1, plaintiff
      was allotted suit scheduled property in a registered partnership deed
      and he was in possession thereof. The defendant, on partition in the
      family, had been allotted a portion of the land. When there was
B
      interference on the suit scheduled property, which fell to the share of
      plaintiff, as per the registered partnership deed, a suit for permanent
      injunction was filed.
            20. In the aforesaid case, after suffering decree for permanent
      injunction, judgment-debtor died. When the heirs of the judgment-debtor
C     in violation of the decree for permanent injunction tried to forcibly
      dispossesess the decree-holder, decree-holder filed the Execution Petition.
      The Executing Court held that heirs of the judgment-debtor were not
      bound by the decree. When such order is questioned before the High
      Court, the Writ Petition is allowed. The High Court held that decree of
D     permanent injunction cannot be enforced against the legal heirs of
      judgment-debtor, as an injunction does not travel with the land. This
      Court, by referring to provision under Section 50 of C.P.C. read with
      Order 21 Rule 32 of C.P.C, has held that such a decree can be executed
      against the legal representatives. But, at the same time, the paragraph
      25 of the judgment, which is relied on by Sri. B. Adi Narayana Rao,
E     learned senior counsel appearing for the respondents, reads as under:
            “25. In our considered opinion the right which had been adjudicated
            in the suit in the present matter and the findings which have been
            recorded as basis for grant of injunction as to the disputed property
            which is heritable and partible would enure not only to the benefit
F           of the legal heir of decree-holders but also would bind the legal
            representatives of the judgment-debtor. It is apparent from Section
            50 CPC that when a judgment-debtor dies before the decree has
            been satisfied, it can be executed against legal representatives.
            Section 50 is not confined to a particular kind of decree. Decree
G           for injunction can also be executed against legal representatives
            of the deceased judgment-debtor. The maxim “actio personalis
            moritur cum persona” is limited to certain class of cases as
            indicated by this Court in Girijanandini Devi v. Bijendra Narain
            Choudhary [Girijanandini Devi v. Bijendra Narain Choudhary, AIR
            1967 SC 1124] and when the right litigated upon is heritable, the
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  S. P. MISRA & ORS. v. MOHD. LAIQUDDIN KHAN & ANR.                             507
                 [R. SUBHASH REDDY, J. ]

      decree would not normally abate and can be enforced by legal              A
      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
                                                                                B
      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         C
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           D
the partnership firm, they are not bound by the decree obtained by the
predecessor of the appellant. More so, when it is a case of the respondents
that they have not derived any assets and liabilities arising out of the
partnership firm, decree obtained by the original plaintiff is not executable
against the respondents.
                                                                                E
       22. It is also to be noticed that during the life time of late Smt.
Hashmatunnisa Begum, she also filed Suit in O.S. No. 1061 of 1990 on
the file of VII Senior Civil Judge, City Civil Court, Hyderabad, for
dissolution of partnership firm constituted under deed of partnership dated
26.06.1977 and also for rendition of accounts. It is true that same is a
different partnership but, parties are same. In such suit filed by late         F
Smt.Hashmatunnisa Begum, predecessor of the appellants Late Sri Jai
Narayan Misra, filed IA No. 1649 of 1997, to dismiss the said suit,
claiming that in view of death of one of the partners, during the pendency
of the suit, there is no room for third party to be introduced. It was the
case of late Sri Jai Narayan Misra that partnership stood dissolved.            G
However, in a similar situation arising out of partnership deed dated
14.04.1982, the appellants claim the decree is executable against the
respondents, who are the legal heirs of the judgment-debtor. As much
as, we are of the view that the respondents were not parties to the
partnership deed and that the partnership stands dissolved, in view of
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508               SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     death of one of the partners, the respondents have not derived the benefit
      of assets of the partnership firm, the decree obtained by the predecessor
      of the appellants, is not executable against the respondents herein.
             23. In view of the same, we are of the view that the Trial Court
      has rightly allowed the application filed by the respondents under Section
B     47 of C.P.C. and there is no error committed by the High Court, in
      confirming such order by dismissing the Civil Revision Petition filed by
      the appellants herein.
           24. We do not find any merit in this appeal so as to interfere in the
      impugned well reasoned order.
C              25. This civil appeal is, accordingly, dismissed, with no order as to
      costs.


      Divya Pandey                                                   Appeal dismissed.
D




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