Judgment :- Common Judgment: C.M.A.NO.1485 OF 2004 The Civil Miscellaneous Appeal is preferred by the plaintiff in O.S.No.1601 of 1983 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. 1. 2. The suit was filed seeking accounts of the dissolved partnership firm business and payment of profits to the extent of 25ps towards share of the plaintiff. A preliminary decree was passed by the lower Court and later an application covered by I.A.No.1247 of 2001 was filed under Order 40 Rule 7 read with Section 151 C.P.C. to appoint a commissioner to take possession of the assets of the partnership firm including the land in Survey No.28/1 to 3 situated at Begumpet, Hyderabad and the account books of the firm M/s Viraj Constructions on the basis of inventory taken by a commissioner during pendency of the suit, after taking possession of the land and account books seeking to settle accounts pertaining to his share of profits as per preliminary decree, dated 06.11.1995 as modified by the High Court by its order dated 28.03.2001 in CCCA No.52 of 1999. 2. 3. The respondent opposed the application by contending that the commissioner cannot be appointed in view of the order of the High Court in L.P.A.No.271 of 2001 in dismissing the petition for appointment of receiver. The lower Court allowed the application by appointing an advocate commissioner for the purpose mentioned in the petition. The lower Court while passing the order observed that according to the order of the High Court dated 06.08.2002 in C.M.P.No.14038 of 2000 in L.P.A.No.271 of 2001 only stay of passing of final decree was passed, while allowing the other proceedings to go on. In another order, dated 23.01.2008, passed by the Division Bench of this Court in C.M.P.No.18249 of 2001 in L.P.A.No.271 of 2001 directed that both parties shall not alienate the suit schedule partnership properties pending disposal of the L.P.A. Subsequently, 3rd respondent filed C.M.P.No.17632 of 2001 to appoint a Court receiver to take possession of the assets of the partnership firm, sell away the same and deposit the sale proceeds to the credit of the said L.P.A. The High Court through its order dated 23.01.2002 mentioned that in the light of the orders passed earlier in C.M.P.No.18249 of 2001 restraining both parties concerned alienating the properties, the relief sought for in two applications cannot be granted. 3. 4. 3. 4. Learned counsel for respondents 4 and 5 contended before the lower Court that in view of the order passed by the High Court, the Commissioner cannot be appointed. The lower Court while rejecting the said contention observed that admittedly there is a stay of passing of the final decree. Therefore, it is quite evident that the Court cannot pass final decree and has to wait for the judgment of the High Court in L.P.A. There is no impediment for the Court for appointment of a commissioner for taking possession of the properties and account books of the firm so as to settle the accounts and submit a report to the Court. 4. 5. Being aggrieved by the said order, the respondents filed I.A.No.1404 of 2002 to review the orders passed in I.A.No.1247 of 2001 on 25.11.2002. 5. 6. In the grounds of review the applicants contended that if the defendants failed to render accounts as directed in the preliminary decree, the plaintiff is at liberty to file an application for appointment of commissioner for settlement of accounts of the partnership firm. In terms of the preliminary decree the plaintiff is entitled to claim interest at 12% on the amount if found to be due to the plaintiff towards his share after settlement of accounts from 01.04.1970 onwards till the date of realization. In the preliminary decree no where the Court directed to take possession of schedule property by appointing a commissioner, but it only directed to take accounts by appointing a commissioner. As the order of the Court in I.A.No.1247 of 2001 is contrary to the terms of the preliminary decree, the lower Court ought not have appointed a commissioner for taking possession of the schedule property and it might have confined the appointment of commissioner for rendering accounts and finalization of the same. The extent of land belonging to the firm is only Ac.2.27 guntas and Ac.3.27 guntas. The partnership firm was newly constituted with fresh partners and consequently the new firm is not a party to I.A.No.1247 of 2001. Therefore, the petitioners requested the Court to allow the review petition by setting aside the order passed in I.A.No.1247 of 2001. 6. 7. The extent of land belonging to the firm is only Ac.2.27 guntas and Ac.3.27 guntas. The partnership firm was newly constituted with fresh partners and consequently the new firm is not a party to I.A.No.1247 of 2001. Therefore, the petitioners requested the Court to allow the review petition by setting aside the order passed in I.A.No.1247 of 2001. 6. 7. The respondent/plaintiff filed counter by contending that as per the preliminary decree which was upheld by the High Court, the plaintiff is entitled to file a petition to pass final decree after appointing a commissioner for settlement of accounts of a partnership firm. After dissolution of the partnership firm every partner is entitled to his share as against other partners or their representatives, who are in possession of the properties of the firm. The partners are liable to discharge the debts and distribute the surplus among all the partners as on the date of the dissolution of partnership firm. Unless the assets of the firm is sold, no body can determine the share amount. None of the partners have exclusive right over the property of the firm. Majority of the partners are in favour of implementation of orders as per Section 12 of the Partnership Act. The taking possession of the property by the Commissioner for settlement of accounts is in accordance with the preliminary decree and provisions of Partnership Act. The petitioners in their written statement in the suit admitting that the extent of the property in possession of the firm is Ac.3.27 guntas situated at Begumpet in Survey No.28/1 to 3, therefore, they cannot deny the admitted facts. The assets of old dissolved firm cannot be transferred in favour of the new firm and such act is void ab initio. During subsistence of the firm no partner can deal with any portion of the property on his own nor can assign his interest in specific items of property of the firm to any one and after dissolution, he is entitled to a share in the assets of the firm, which remains after satisfying the liabilities. Therefore, requested the Court to dismiss the review petition with costs. .8. Therefore, requested the Court to dismiss the review petition with costs. .8. After hearing both the counsel, the lower Court passed an order dated 26.04.2004 allowing the .review petition by setting aside the order passed in I.A.No.1247 of 2001 to the extent of directing the commissioner to take possession of the property of the firm. The lower Court observed that since the respondent filed suit for rendition of accounts by the defendants for the dissolved firm and as the suit was decreed for passing preliminary decree as modified by the High Court in C.C.C.A.No.52 of 1999 the 1st respondent is only entitled for his share in the profits of the business run in the name of the firm till 18.10.1983. Therefore, he is not entitled for any share in the dissolved firm, which is being run with the remaining partners. The lower Court further observed that as per the preliminary decree the commissioner was appointed and he took possession of the account books and other relevant records in pursuance of the warrants for rendition of accounts and since the extent of land is also in dispute, because of the claim made by the Government, the commissioner need not be directed to take possession of the property and there is no need to sell the said property. The question of selling property will arise only when the other partners failed to pay the amount to the plaintiff in the suit. Therefore, the Commissioner need not take possession of the properties belonging to the dissolved firm for ascertainment of the accounts and thereby there is an error committed by this Court in directing the Commissioner to take possession of the property to settle the accounts. The review petition is accordingly allowed setting aside the order to the extent of directing the Commissioner to take possession of the property of the firm. 7. 9. The review petition is accordingly allowed setting aside the order to the extent of directing the Commissioner to take possession of the property of the firm. 7. 9. Being aggrieved by the said order, the present appeal has been filed by the plaintiff contending that the impugned order is illegal, hence, the review petition itself is not maintainable as it was filed long after the filing of the revision before the High Court and the order in I.A.No.1247 of 2001 dated 25.11.2002 got merged in C.R.P.No.5742 of 2002 the application covered by I.A.No.1404 of 2002 is not maintainable under Order 47 C.P.C. The observation of the lower Court that the respondents 1 and 2 were given liberty to file review application while withdrawing C.R.P.No.5742 of 2002, on the file of this Court is erroneous, as such liberty was not given to respondents 1 and 2. The order of the lower Court is illegal as he is entitled for settlement of accounts as per clause 4 of the decree and he is entitled for sale of the assets of the partnership firm as per Sections 46 and 48 of the Indian Partnership Act, 1932. The lower Court has considered only clause 2 of the decree while the right for settlement of accounts and for sale of the assets of the partnership firm, arises out of clauses 3 and 4 of the decree. The extent of Ac.3.27 guntas is not in dispute as the respondents themselves pleaded in their written statement in the main suit mentioning that the extent of land is Ac.3.27 guntas situated at Begumpet. Therefore, he requested to allow the appeal by setting aside the order passed by the lower Court. .10. Learned counsel for the appellant Sri M.V.S.Suresh Kumar submitted that the appellant filed suit for rendition of accounts on account of dissolution of the partnership firm he is entitled for 25% of the share in the assets and profits of the firm after discharging the liabilities of the firm as on the date of dissolution of the firm. The Court decreed the suit granting profits from the date of establishment of the firm till the date of dissolution on 18.10.1983. The appeal and L.P.A filed by defendants 4 and 5 .was dismissed. The Court decreed the suit granting profits from the date of establishment of the firm till the date of dissolution on 18.10.1983. The appeal and L.P.A filed by defendants 4 and 5 .was dismissed. I.A.No.1247 of 2001 filed by the plaintiff was allowed on 25.11.2008 directing the Commissioner to take possession of the properties and account books and other records of the firm for the settlement of the accounts and to submit his report. Against the said order respondents 4 and 5 preferred C.R.P.No.5742 of 2002 and stay was obtained. After appearance of the other party, the stay was vacated on 13.12.2002 and C.R.P. was withdrawn by the respondents. Subsequently, they filed review petition, covered by I.A.No.1404 of 2002 to review the order in I.A.No.1247 of 2001 and the review petition was allowed. Being aggrieved by the order of the review petition the present appeal has been filed on 10.05.2004 and on 11.05.2004, stay was granted against defendants 4 and 5 from alienating the property. Subsequently the stay was made absolute on 23.02.2005. Therefore, he requested to allow the appeal by setting aside the order of the lower Court in the review petition. 8. 11. Learned counsel for the appellant challenged the maintainability of the review petition on the ground that there is no error apparent on the face of the record and that no liberty is given to the respondents to file review petition at the time of dismissal of the revision petition as withdrawn. As per Sections 46 and 48 of the Partnership Act, the appellant is entitled to get a commissioner appointed to take possession of the property and bring the property for sale and the sale proceeds be deposited in the Court. The sale consideration and other assets of the firm, if any to be distributed among the partners by paying 25% of the said amount to the appellant. 9. 12. Learned Senior counsel for the respondent Sri Satyanarayana, submitted that as per Sections 9 of the Civil Courts Act and Sections 104 and 106 of the Civil Procedure Code, the appeal lies to the Chief Judge, City Civil Court, Hyderabad, but not to the High Court. Hence, Section 151 C.P.C. has no application to the facts of the present case. Therefore, he advanced arguments firstly on the question of jurisdiction of the Court to entertain the appeal and secondly on the merits of the case. Hence, Section 151 C.P.C. has no application to the facts of the present case. Therefore, he advanced arguments firstly on the question of jurisdiction of the Court to entertain the appeal and secondly on the merits of the case. He drew the attention of this Court through some judgments and submitted that the commissioner has no power to take possession of the property under Section 75 of C.P.C. Since the final decree petition is pending and as the Court passed only preliminary decree, the application for appointment of commissioner to take possession of the property cannot be maintained. Therefore, requested to dismiss the appeal. 10. 13. In the light of the contentions raised by both the counsel, the following are the points for consideration before this Court: 1. 1. Whether this Court cannot entertain the appeal when the appeal lies to the District Judge? 2. 2. Whether there are any grounds to review the order passed by the lower court in I.A.No.1247of 2001? POINT NO.1: 14. Section 9 of Civil Courts Act reads as follows: 9 Forum for appeals:- .(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding .(i) of the Chief Judge or the Additional Chief Judge of the City Civil Court, to the High Court; .(ii) of the Senior Civil Judge of the City Civil Court, (a) to the Court of the Chief Judge, when the amount or value of the subject matter of suit or proceeding is not more than rupees three lakh (b) to the High Court in other cases; and (iii) of the Junior Civil Judge of the City Civil Court to the Court of the Chief Judge (2) TheChief Judge may, subject to the orders of the High Court transfer for disposal any appeal filed in the City Civil Court to any Additional Chief Judge or any Senior Civil Judge. There is no doubt about the jurisdiction of the respective appellate Courts. In the present case the order was passed by the Senior Civil Judge, City Civil Court, Hyderabad. The Value of the suit is about Rs.25,000/- Therefore, in the normal circumstances, the appeal should lie to the District Judge/Chief Judge, City Civil Court, Hyderabad, but the appeal shall prefer before this Court. 15. Section 106 of C.P.C provides as to what Courts have to hear the appeals. The Value of the suit is about Rs.25,000/- Therefore, in the normal circumstances, the appeal should lie to the District Judge/Chief Judge, City Civil Court, Hyderabad, but the appeal shall prefer before this Court. 15. Section 106 of C.P.C provides as to what Courts have to hear the appeals. Section 106 of C.P.C. reads as follows: 106 What Courts to hear appeals. Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (Not being a High Court) in the exercise of appellate jurisdiction then to the High Court. As per this section, the appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or such order is made by a Court other than the High Court in the exercise of appellate jurisdiction the appeal shall lie to the High Court. 16. Learned counsel for the appellant Sri M.V.S.Suresh Kumar submitted that regarding the maintainability of the appeal, the respondents did not raise any objection till the end of 2008, though the appeal was filed in the year 2004. The silence on the part of the respondents for such a long period amounts to waiver. Therefore, they cannot now raise the objection regarding the maintainability of the appeal before this Court. He relied on certain judgments in support of his contention. In VALLABHANENI LAKSHMANA SWAMY v VALLURU BASAVAIAH 2004 (5) ALD 807 the full bench of this Court considered the maintainability of the appeal before different forums. In the light of the A.P. Civil Courts Amendment Act 30 of 1989 which enhance the pecuniary jurisdiction to it entertained the appeals and observed as follows: It is not a case as a case of right of appeal was taken away, while not disturbing the substantive right, if the forum is changed and the right of appeal in the forum are so inextricable that they cannot be separated by clear cut measure. It has to be held that the right of appeal as well as the forum are both substantive rights and therefore, they only apply to the cases in future and not applied to the pending cases. It has to be held that the right of appeal as well as the forum are both substantive rights and therefore, they only apply to the cases in future and not applied to the pending cases. The Court further observed as follows: "Sections (1) that the Civil Courts (Amendment) Act, 30 of 1989 is applicable prospectively from 1-12-1989. (2) Even in case of suits which were filed earlier to the amendment and they are pending disposal as on the date of the amendment came into force, the appeal if any has to be necessarily filed before the Forum created under the amended Act depending on the pecuniary limits. .... The pecuniary limits and forum go together and the amendment being prospective in operation, the appeals ought to have been filed before the amended forum. But, taking into consideration that large number of appeals were already admitted by this Court, and they are pending for a considerable length of time and keeping in view the maxim that "actus cruriae neminem gravabit (an act of the Court shall prejudice no man), we declare that such of the cases which were filed subsequent to amendment are deemed to have been transferred to this Court under Section 24 of Code of Civil Procedure for their disposal in accordance with law." 17. In HIRA LAL PATNI v KALI NATH 1962 AIR (SC) 199, the four Judge Bench of the Supreme Court observed as follows: The objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under Cl. 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through Court, he would be deemed to have waived his objection to the territorial jurisdiction of the Court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try case. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S. 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the Court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendant is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. 18. In BAHREIN PETROLEUM COMPANY LIMITED v P.J.PAPPU AIR 1966 (SC) 634 a three Judge Bench of the Supreme Court while considering the scope of jurisdiction observed as follows: As a general rule, neither consent nor wavier nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But S. 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under S. 21 is limited to objections in the appellate and revisional Courts. But S. 21 is a statutory recognition of the principle that the defect as to the place of suing under Ss. 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it. The Court further observed as follows: "The policy underlying Ss. But S. 21 is a statutory recognition of the principle that the defect as to the place of suing under Ss. 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it. The Court further observed as follows: "The policy underlying Ss. 21 and 99 of the Civil Procedure Code and S. 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.'' .19. In P.SUNDARA RAMI REDDY v THE SECRETARY TO GOVERNMENT, R & B, HYDERABAD in Civil Miscellaneous Appeal No.1726 of 1995, dated 24.09.2007 observed as follows: ."From the above well settled principles following the decisions neither there is any justification on behalf of the respondents, which only transpires the plea of territorial jurisdiction and it does not pertain to any inherent jurisdiction nor admittedly, no such plea having taken nor proper foundation laid and no opportunity is given. It is too early on the part of the respondents to raise such plea, in fact at the stage of arguments. Therefore, the court below was not right in entertaining such a plea during the course of arguments and consider the same." .20. The appeal was filed in the year 2004. It is likely to take some more years, if the appeal is returned for presentation before the appropriate Court. A Full Bench of this Court, in VALLABHANENI LAKSHAMANA SWAMY's case, observed that since the appeals are pending for a considerable length of time and keeping in view of the maxim that "an act of the Court shall prejudice no man", it is clear that such of the cases which were filed subsequent to the amendment are deemed to have been transferred to this Court under Section 24 of Code of Civil Procedure for disposal in accordance with law. If the appeal is returned at this stage, it is likely to cause prejudice to the appellant and further delay will be caused in disposing of the appeal. Therefore, the appeal is deemed to be transferred under Section 24 of the Civil Procedure Code and the appeal is accordingly disposed of. This point is answered accordingly. .POINT NO.2: .21. It is the contention of the respondents that they preferred a revision against the order of the lower Court in I.A.No.1247 of 2001. During the pendency of the revision petition, the review petition covered by I.A.No.1404 of 2002 was filed and orders were passed on 26th April, 2004. The Civil Revision Petition was dismissed as withdrawn on 13.06.2003. It is contended by the respondents that while dismissing the revision petition as withdrawn, this Court gave liberty to the respondents to file review petition before the lower Court. As seen from the order of this Court in C.R.P.No.5742 of 2002, dated 13.06.2003, no such permission or reservation is given to the respondents to file review petition before the lower Court. The following is the order of this Court in C.R.P.No.5742 of 2002: ."In view of the letter dated 07.06.2003 given to the Registrar by the petitioner's counsel the revision petition is dismissed as withdrawn." 2. 22. It is not known as to what is mentioned in the letter, dated 07.06.2003, filed before the Court. As per the record, no permission was granted by the Court to file review petition before the lower Court. 3. 23. Regarding the maintainability of the review petition, learned counsel for the appellant submitted that there is no error apparent on the face of the record. Therefore, the question of reviewing the order does not arise. The order was passed on merits. If there is any decision by the lower Court against the provision of law or on account of improper appreciation of the facts, it cannot be corrected by way of review petition and the remedy to the respondents is to carry the matter to higher forum, but not by way of review petition before the lower Court. .24. If there is any decision by the lower Court against the provision of law or on account of improper appreciation of the facts, it cannot be corrected by way of review petition and the remedy to the respondents is to carry the matter to higher forum, but not by way of review petition before the lower Court. .24. The learned counsel in support of his contention relied on a Judgment of this Court in PARSION DEVI v SUMITRI DEVI 1997 SCC 715 the Supreme Court observed as follows: ."An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the fact of the record justifying the court to exercise its power of review under Order 47 Rule 1 Civil Procedure Code. In exercise of the jurisdiction under Order 47 Rule 1 Civil Procedure Code it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 4. 25. Section 46 of the Partnership Act gives right to partners to have business wound up after dissolution. Section 46 of the Partnership Act reads as follows: 46 Rights of partners to have business wound up after dissolution . . On the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. 26. Section 48 of the Partnership Act deals with mode of settlement of accounts between the partners, which reads as follows: 48 Mode of settlement of accounts between partners . . In settling the accounts of a firm after dissolution, the following rules shall, subject to agreement by the partners, be observed:- .(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital, and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits. . In settling the accounts of a firm after dissolution, the following rules shall, subject to agreement by the partners, be observed:- .(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital, and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits. .(b) The assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order :-- .(i) in paying the debts of the firm to third parties; .(ii) in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital: (iii) in paying to each partner rateably what is due to him on account of capital; and (iv) the residue, if any, shall be divided among the partners, in the proportions in which they were entitled to share profits. 1. 27. According to Section 48(b), the assets of the firm shall be utilized for payment of debts to third parties, for payments to partners reteably what is due to him on account of capital and the residue, if any shall be divided among the partners in the proportions in which they were entitled to share profits. The language of the above section is very clear that the outgoing partner is entitled to get his share of profits out of the assets also in addition to other sources available for them for distribution after discharging the liabilities of third parties. When once there is a preliminary decree in favour of the plaintiff for ascertaining the profits on verification of the accounts rendered by the other partners value of the moveable and immoveables of the firm has to be ascertained and if the other partners who are running subsequent partnership business is ready to pay the share of the plaintiff, there would not be any problem, otherwise, the properties have to be brought to sale and the sale proceeds have to be distributed ratably as per their share in the partnership firm. 2. 28. 2. 28. Learned counsel for the appellant submits that it may not be possible for the commissioner to ascertain the profits unless and until the value of the landed property is assessed and in the event of the other partners not coming forward to pay the share of the plaintiff the commissioner has to bring the property to sale and distribute the assets according to the shares of the partners. The lower Court directed the commissioner to take possession of the property for the purpose of settlement of accounts after verification of the accounts of the firm. .29. He relied on the following judgment in support of his argument. The subject of dissolution of a firm and the consequences are dealt with in Chapter VI, Section 39 to 55 in ADDANKI NARAYANAPPA v BHASKARA KRISHNAPPA (DEAD) AND THEREAFTER HIS HEIRS 1966 AIR 1300 the Supreme Court observed that: ."It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act, and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of Lindley:" his proportion of the partnership assets after they have been all realized and converted into money, and all the partnership debts and liabilities have been paid and discharged." .30. The commissioner was appointed under Order 40 Rule 1(b) C.P.C. Order 40 deals with appointment of receivers. The counsel for the appellant in the lower Court instead of describing the Court officer as receiver mentioned as commissioner. But if the commissioner is treated as receiver under Order 40 C.P.C. the said officer is entitled to take possession of the property also and put the same to auction as per the Court instructions. Though the person appointed for taking possession .was described as commissioner he shall be treated as receiver for all practical purposes as the application was filed under Order 40 Rule 1(b) C.P.C. Therefore, the argument of the learned counsel for the respondents that under Order 26 C.P.C. no commissioner shall be appointed to take possession of the property holds no water and it is not sustainable. The lower Court passed an order appointing the commissioner to take possession of the landed property and account books of the firm to settle accounts after making enquiry and to submit a report to the Court. The commissioner submitted an interim report on 9.1.2003. In the said report, he mentioned that he gave notices to the advocates on record of both parties. He visited the suit schedule property and took possession of the landed property situated at Begumpet with the assistance of the Mandal Surveyor in the presence of advocates. He also mentioned that the counsel for respondents 4 and 5 handed over the ledger book, salary register and the day book etc and abstract of accounts from 1982-83. On 06.10.2003, the commissioner filed final report. In the said report, he mentioned that the Mandal Surveyor handed over a detailed sketch along with measurements prepared by him along with the Revenue Inspector. As per T.S.L.R record an extent of Ac.3.27 guntas land is shown in Survey No.28. As per Mandal Surveyor the extent came to Ac.3.27 guntas, which was clearly shown in the plan prepared by him after taking actual measurements. At the time of taking possession and measurements, there was no objection from any third party. He accordingly completed the proceedings of the warrant of commission and submitted the report. Under Order 40, the commissioner is entitled to take possession of the property and accordingly he took possession. It is not an illegality as contended by the respondents counsel. Now the commissioner has to take steps to get the value of the property assessed. After determining the value of the property, if the other partners come forward to pay 25% of the value of the property after deducting the liabilities, if any, the properties can be left to the partners after satisfying the share of the plaintiff, otherwise the property has to be sold to realize the amount for the purpose of distribution. If the parties come to an understanding, the plaintiff may also take 25% of the land towards his share instead of selling the property for the purpose of distribution of the same out of the sale proceeds among the partners. If the parties come to an understanding, the plaintiff may also take 25% of the land towards his share instead of selling the property for the purpose of distribution of the same out of the sale proceeds among the partners. After going through the order of the lower Court, I am of the view that the order under review is beyond the scope of the review jurisdiction and the lower Court allowed the review petition on the sole ground that the commissioner cannot take possession of the property, who was appointed under Order 26 C.P.C., but in view of the application filed under Order 40 Rule 1(b) C.P.C. the commissioner is competent to take possession of the property. Therefore, I am inclined to set aside the order passed by the lower Court. 3. 31. Inthe result, the appeal is allowed by setting aside the order of the lower Court dated 26.04.2004 passed in I.A.No.1404 of 2002. However, the aforesaid directions shall also be followed while taking further steps in the matter. .32. This revision petition has been filed by respondents 4 and 5 in I.A.No.1247 of 2001 in .O.S.No.1601 of 1983 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. The plaintiff filed I.A.No.655 of 2003 under Section 151 C.P.C., for appointment of an Advocate Commissioner who was already appointed in I.A.No.1247 of 2001 to settle the accounts of the firm after selling of the assets of the firm including the land measuring Ac.3.27 guntas in Survey No.28/1, 28/2 and 28/3, Begufmpet Village, Hyderabad. 4. 33. The said application was resisted by respondents 4 and 5. 5. 34. The lower Court allowed the application directing the commissioner appointed earlier for selling away the land and settle the accounts as per the preliminary decree. Being aggrieved by the said order, respondents 4 and 5 preferred this present revision petition. 6. 35. In view of setting aside the order of the lower Court in review petition covered by I.A.No.1404 of 2002 and in view of the directions given by this Court, no separate orders are required in this revision petition. 7. 36. Accordingly, the revision petition is dismissed.