K.J. Jacob vs K.J. Alex

M.N. Krishnan, J.—This appeal is preferred against the final decree application in a suit for dissolution of partnership. The learned Counsel for the appellant had made available before me a certified copy of the judgment rendered by a Division Bench of this Court in A.S. 238/87 which was preferred against the preliminary judgment in O.S. 24/85 of the Sub Court, Cochin. As per the judgment of this Court the operative portion reads as follows. "In the circumstances, we vacate the finding regarding the benami transaction in paragraph 8 of the judgment" and hold that "the finding under issue No. 2 shall stand altered to make both the plaintiff and defendant liable to settle the accounts between them in terms of Section 48 of the Partnership Act and Ext.A2 with reference to the evidence on record." This Court also held that the Court shall appoint a Commissioner to settle the accounts between the parties after determining the assets and liabilities. It is unfortunate that the Court below has not adverted its mind to the directions given by this Court in the appeal. It has extracted the preliminary decree passed by the Court below which has been modified by the appellate court. The Court has just casually mentioned about some figures and had passed a final decree directing the defendant to deposit Rs. 1,70,070/-. I find that the total approach rendered by the trial court is erroneous which requires correction and therefore the finding under challenge is set aside and the matter is remitted back to the trial court with a direction to comply with the directions of this Court in A.S. 238/87. For the said purpose opportunity shall be given to the parties to produce materials and also adduce evidence and if necessary appoint a Commissioner for settlement of accounts. Parties are directed to appear before the trial court on 4.10.2010.