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                   REPORTABLE   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3311 OF 2015

S.P. Misra & Ors.                        ...Appellants

Versus

Mohd. Laiquddin Khan & Anr.             ...Respondents

J U D G M E N T

R.Subhash Reddy,J.  

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 Judge,

City Civil Court, Hyderabad.

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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 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

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

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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 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 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 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.”

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5. The said Suit was decreed on 14.07.1993, by the

Trial Court, 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;

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.”

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 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 plan is being submitted;

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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 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  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

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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 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  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:

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“This  partnership  shall  not  be dissolved till the completion of the venture  except  by  mutual  agreement reduced in writing.  

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  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  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 this Court, in the case of  Prabhakara

Adiga v. Gowri and Others1.

1 (2017) 4 SCC 97

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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 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  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 deed there were only two

partners, namely, late Smt. Hashmatunnisa Begum, who

is  the  owner  of  the  land/predecessor  of  the

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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 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 Trial Court in E.A. No. 6

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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:

(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

(d) by  the  adjudication  of  a  partner  as  an   

insolvent.

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

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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.  

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 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 obligations arising under it on any

third party, except parties to it. No one but the

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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

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 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

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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 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 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  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

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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,

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 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 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 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

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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 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,

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decree  obtained  by  the  original  plaintiff  is  not

executable against the respondents.  

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  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. 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

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parties  to  the  partnership  deed  and  that  the

partnership stands dissolved, in 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 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 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.  

25. This civil appeal is, accordingly, dismissed,

with no order as to costs.

   ...................J.      [Indu Malhotra]

   ....................J.     [R. Subhash Reddy]

New Delhi;     October 18,2019