Karnataka High Court
Smt Geeta Rego vs D Rajashekar Shetty on 20 August, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
W.P.No.12393/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.12393 OF 2018 (GM-CPC)
BETWEEN:
SMT. GREETA REGO
W/O. CHARLIE REGO
AGED ABOUT 49 YEARS
R/AT DERAJE HOUSE
KOILA VILLAGE AND POST
BANTWAL TALUK
D.K. DISTRICT - 574 219
... PETITIONER
(BY SRI: RAVISHANKAR SHASTRY G, ADVOCATE)
AND:
1. D. RAJASHEKAR SHETTY
S/O. D. CHANDRASHEKAR SHETTY
AGED ABOUT 40 YEARS
REPRESENTED BY HIS GPA HOLDER
HIS FATHER D. CHANDRASHEKARA SHETTY
AGED ABOUT 74 YEARS
R/AT KAMBALADADDA HOUSE
KOILA VILLAGE AND POST
BANTWAL TALUK, D K DISTRICT, 574 219
2. CHELLI VEIGAS
W/O. LATE. LEO VEIGAS
AGED ABOUT 79 YEARS
R/AT DERAJE HOUSE
KOILA VILLAGE AND POST
BANTWAL TALUK, D K DISTRICT - 574 219
... RESPONDENTS
(BY SRI: A M VIJAY, ADVOCATE FOR R1,
R2 - SERVED)
W.P.No.12393/2018
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER ON I.A.III IN EXECUTION CASE NO.15/2016 DATED
30.01.2018 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND
JMFC, BANTWAL, D.K., VIDE ANNEXURE-A AND
CONSEQUENTLY I.A. NO.III IN EXECUTION CASE NO.15/2016
BE DISMISSED AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
By way of this writ petition, the petitioner (judgment debtor) seeks to question the order dated 30.01.2018, as passed on I.A.No.3 in Execution Case No.15/2016, whereby the Executing Court has issued commission for elucidating the matter in dispute.
The relevant background aspects of the matter are that a decree for perpetual injunction against the present petitioner and in favour of the respondent No.1 has been passed by the Trial Court on 24.04.2015 and the appeal taken against the said decree has also been dismissed; and the matter is said to be pending in the second appeal, which is yet to be admitted in this Court.
W.P.No.12393/2018-3-
By way of the decree aforesaid, the petitioner has been restrained from trespassing into the plaint 'B' schedule land of the plaintiff. The measurement as also the boundaries with survey number of the land in question are stated in schedule 'B' to the decree aforesaid.
The decree holder has filed the execution petition under Order XXI Rule 32 of the Code of Civil Procedure ('CPC') complaining of the acts of disobedience of the decree by the petitioner and an application for issuance of commission was also filed, which has been allowed by the Executing Court, while observing, inter alia, as under:
"10. Though there is a decree for permanent injunction, the decree holder contends that the judgment debtor violated the decree. The JDR is contended that the decree land is unidentifiable and hence it is not executable. When there is a dispute regarding identify of the property, it is not possible to come to a conclusion that whether JDR has violated the decree or not. Hence, to resolve these issues appointment of commissioner is necessary.
11. In view of the above discussion, the petitioner has made out grounds that appointment of Court Commissioner is just and necessary to elucidate the matter in dispute. Accordingly, I hold Point No.1 in the Affirmative.W.P.No.12393/2018 -4-
12. Point No.2: In view of my findings on Point No.1, I proceed to pass the following:
ORDER I.A.NO.III filed by the Petitioner under Order XXVI Rule 9 OF C.P.C. is hereby allowed.
An Advocate of Bar Association of Bantwal to be nominated by the parties is to be appointed as Court Commissioner who shall make local investigation with the assistance of competent Surveyor attached to the office of the Tahsildar, Bantwal and shall execute a Commissioner Warrant and file a report to the Court along with the sketch.
Commissioner Fee is tentatively fixed at Rs.1,500/- and said fee shall be paid to the Court Commissioner directly.
Surveyor fee shall be paid in the office of Tahasildar.
Issue direction to Tahasildar to provide survey assistance.
To suggest the name of the commissioner by 16/2/2018."
Learned counsel for the petitioner argues that the order passed by the Executing Court is wholly without jurisdiction as the provisions under Rule 9 of Order XXVI of CPC do not apply to the execution proceedings. Learned counsel also submits with reference to the decision of this Court in the case of G. PRASAD REDDY vs. A. MALA: W.P.No.4792/2015, decided on 24.11.2015, that the commission could not have been issued for collecting the evidence and it was for the W.P.No.12393/2018 -5- decree holder to establish the alleged violation on the part of the judgment debtor.
Per contra, learned counsel for the respondent No.1 has referred to the provisions of Rule 18A of Order XXVI CPC to submit that the provisions of Order XXVI do apply to the execution proceedings. Learned counsel has also referred to the decision of this Court in the case of VENKATESHAPPA vs. DODDAMUNIVENKATAMMA: RSA No.463/2008, decided on 01.03.2014.
Having given thoughtful consideration to the rival submissions, this Court finds no reason to consider interference in the order impugned looking to the nature of the decree as passed by the Court and the nature of the allegations as made by the plaintiff.
In the given set of facts and circumstances, when the Executing Court has found it just and proper to issue the commission for the purpose of elucidating the matter in dispute, the exercise remains unexceptionable. The order impugned cannot be said to be suffering from any W.P.No.12393/2018 -6- jurisdictional error so as to call for interference in the writ jurisdiction.
The submissions that such order could not have been passed under Order XXVI Rule 9 CPC has also only been noted to be rejected for the applicability of Order XXVI to the execution proceedings, per Rule 18A thereof.
The decision, as relied upon by learned counsel for the petitioner, could only be considered proceeding on its own facts; and ultimately, it remains a matter of discretion of the Executing Court as to whether a commission be issued or not, depending on the nature of the decree and the nature of inquiry to be carried out.
In the present matter, the Executing Court having exercised such discretion after due consideration of the facts and circumstances, the order impugned cannot be considered suffering from any jurisdictional error so as to call for interference in the writ jurisdiction of this Court. W.P.No.12393/2018 -7-
The petition stands dismissed.
The pending interlocutory application also stands disposed of.
Sd/-
CHIEF JUSTICE ca