SMT. MAHADEVI v. SMT. SHANTAVVA

SMT. MAHADEVI W/O. RAMESH BEMBAR, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: MAGDUM GALLI, HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI. (BY SMT. SUNANDA P. PATIL, ADVOCATE) AND:

SMT. SHANTAVVA W/O. ASHOK NIKAM, AGE: 52 YEARS, OCC: HOUSEHOLD AND COOLIE, R/O: HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI.

SHRI BHIMAPPA S/O. DUNDAPPA BEMBAR, AGE: 43 YEARS, OCC: COOLIE, R/O: HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI.

SMT. PARAVVA @ PARVATI W/O. SIDDAPPA MORE, AGE: 54 YEARS, OCC: HOUSEHOLD AND COOLIE, YASHAVANT NARAYANKAR Location: High Court of Karnataka - 2 - NC: 2024:KHC-D:14919 WP No. 114879 of 2019 R/O: HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI.

SHRI LAXMAN S/O. DUNDAPPA BEMBAR, AGE: 39 YEARS, OCC: COOLIE, R/O: HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI.

SHRI RAMESH S/O. DUNDAPPA BEMBAR, AGE: 41 YEARS, OCC: COOLIE, R/O: HUKKERI – 591 306, TQ: HUKKERI, DIST: BELAGAVI. (BY SRI SATISH M.S., ADVOCATE FOR R1 AND R2; R3, R4 AND R5 ARE SERVED) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED 06.02.2019 ON IA II IN FDP 11/2017 PRODUCED AT ANNEXURE-"H" PASSED BY THE CIVIL JUDGE AND JMFC, HUKKERI AND ETC., THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2024:KHC-D:14919 WP No. 114879 of 2019 CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL ORDER (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present petition is filed calling in question the order dated 06.02.2019 passed on I.A.No.II in FDP No.11/2017 by the Civil Judge and JMFC, Hukkeri1.

2. The relevant facts leading to the present petition are that respondents No.1 and 2 filed a suit in O.S.No.59/2013 for partition and separate possession. The petitioner was arrayed as defendant No.4 in the said suit and he contested the said suit. The Trial Court by its judgment and decree dated 24.04.2017, decreed the suit and granted 1/5th share each to the plaintiffs and defendants No.1 to 3. Being aggrieved, the petitioner preferred R.A.No.40/2017 before the Senior Civil Judge, Hukkeri.2 Since the said appeal was filed belatedly, the petitioner filed an application for condonation of delay as well as an application for stay in the said appeal. In the 1 Hereinafter referred to as Trial Court 2 Hereinafter referred to as First Appellate Court - 4 - NC: 2024:KHC-D:14919 WP No. 114879 of 2019 meanwhile, respondents No.1 and 2 filed FDP No.11/2017 for drawing up of the final decree. In the said final decree proceedings, I.A.No.II was filed under Order XXVI Rule 9 read with Section 151 of CPC seeking for appointment of Court Commissioner. The said application was allowed vide order dated 06.02.2019 and Taluka Surveyor was appointed as Court Commissioner. Being aggrieved, the present petition is filed.

3. Learned counsel petitioner, Smt. Sunanda P Patil vehemently contends that in view of the fact that R.A.No.40/2017 was pending adjudication, the Trial Court in the final decree proceedings ought not to have appointed the Court Commissioner. Hence, she seeks for allowing of the present petition and granting of the relief sought for.

4. The contention put forth on behalf of the petitioner is not liable to be accepted having regard to the fact that there was no impediment for the Trial Court in the final decree proceedings not to consider I.A.No.II. In - 5 - NC: 2024:KHC-D:14919 WP No. 114879 of 2019 the absence of any stay granted by the Appellate Court in R.A.No.40/2017, it cannot be said that in the final decree proceedings the Trial Court ought not to have proceeded further in the matter.

Ordered accordingly. Sd/- (C.M. POONACHA) JUDGE SH CT-ASC List No.: 1 Sl No.: 56