Karnataka High Court
G V Gopalakrishna vs Smt. Padmakshi on 20 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 25315 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 25315 OF 2023 (GM-CPC)
BETWEEN:
G. V. GOPALKRISHNA
S/O. G. VENKATAPPA
AGED ABOUT 71 YEARS
(BENEFIT OF SR. CITIZEN NOT CLAIMED)
R/AT No. 349, 1st FLOOR
10th 'B' MAIN ROAD, 3rd BLOCK, JAYANAGAR
BANGALORE - 560 011.
...PETITIONER
(BY SRI. ANANTHA NARAYANA B N., ADVOCATE)
AND:
1. SMT. PADMAKSHI
Digitally signed
W/O. R. SREENIVASA
by PAVITHRA N AGED ABOUT 70 YEARS
Location: high R/AT NO. 116, 13th 'B' CROSS
court of
karnataka 8th MAIN, BTM LAYOUT
BANGALORE - 560 076.
2. SMT. KAMALA KASHINATH
W/O KASHINATH G.
AGED ABOUT 68 YEARS
R/AT NO. 26, MOUNTAIN STREET
1st BLOCK EAST, JAYANAGAR
BANGALORE - 560 011.
3. SMT. G. V. NEELAKSHI
W/O. KARUNAKAR
AGED ABOUT 66 YEARS
R/AT 'SREE', NO. 1011
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WP No. 25315 of 2023
17th MAIN, 1st STAGE
1st PHASE, BTM LAYOUT
BANGALORE - 560 029.
SMT. G V LAKSHMI
W/O PURUSHOTHAM
SINCE DEAD BY HER LRS.
4. SRI. G. PURUSHOTHAM
S/O G. GURUSWAMY
W/O. LATE SMT. G. V. LAKSHMI
AGED ABOUT 65 YEARS
5. JAYANTH YADAV P.
S/O G. PURUSHOTHAM AND
LATE G. V. LAKSHMI
AGED ABOUT 38 YEARS
6. PRASHANTH YADAV P.
S/O G. PURUSHOTHAM AND
LATE G. V. LAKSHMI
AGED ABOUT 38 YEARS
RESPONDENTS 4 TO 6 ALL
R/AT NO. 6, GOSHAIH STREET
AKKITHIMMANAHALLI, SHANTHINAGAR
BANGALORE - 560 027.
R. RADHAKRISHNA
S/O LATE G. VENKATAPPA
SINCE DEAD BY HIS LRS.
7. SMT. RASHMI RADHAKRISHNA
W/O. RAVI APPANNA
D/O. LATE R. RADHAKRISHNA
AGED ABOUT 38 YEARS
PRESENTLY R/AT NO.28
SHALIMAR CRESCENT
DANDENONG NORTH, MELBOURNE
VICTORIA 3175, AUSTRALIA.
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WP No. 25315 of 2023
PERMANENT RESIDENT OF
NO. 56/1, 1st FLOOR
A P K ROAD, 2nd BLOCK
2nd CROSS, THYAGARAJANAGARA
BANGALORE - 560 028.
8. SMT. VEDASHREE R. YADAV
W/O SRI. M. AJITH KUMAR
D/O LATE R. RADHAKRISHNA
AGED ABOUT 28 YEARS
R/AT No. 74/A, 31st 'A' CROSS
7th BLOCK, JAYANAGAR
BANGALORE - 560 082.
9. G. V. MURALIKRISHNA
S/O LATE VENKATAPPA
AGED ABOUT 57 YEARS
R.AT NO. 349, GROUND FLOOR
10th 'B' MAIN ROAD
3rd BLOCK, JAYANAGAR
BANGALORE - 560 011.
...RESPONDENTS
(BY SRI V. SHIVAKUMAR, ADVOCATE FOR R1 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUION OF INDIA PRAYING TO QUASH THE ORDER
DATED 09/10/2023 PASSED ON I.A. NO.6 FILED UNDER ORDER
XX RULE 18 READ WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDURE IN FDP NO.28/2013 PENDING ON THE FILE OF
THE COURT OF THE XV ADDL. CITY CIVIL AND SESSIONS,
BANGALORE AS PER ANNEXURE-E TO THE WP BY ISSUE OF
WRIT OF CERTIORARI AND / OR ANY OTHER APPROPRIATE
WRIT, ORDER AND DIRECTION AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 25315 of 2023
ORDER
1. Learned counsel Sri.V.Shivakumar, accepts notice for respondents No.1 to 5.
2. The petitioner/respondent No.1 in FDP No.28/2023 on the file of XV Additional City Civil & Sessions Judge, Bengaluru is before this Court aggrieved by the Order dated 09.10.2023 rejecting I.A.No.6 filed under Order XX Rule 18 of Code of Civil Procedure (for short hereinafter referred to as 'CPC').
3. Heard Sri.B.N.Ananthanarayana, learned counsel for the petitioner and Sri.V.Shivakumar, learned counsel for respondents No.1 to 5. Perused the Writ Petition papers.
4. Learned counsel for the petitioner would submit that the petitioner/respondent No.1 in FDP No.28/2023 filed I.A.No.6 under Order XX Rule 18 of CPC praying the Court to direct the Court Commissioner to bring about division of the schedule property and deliver to the first respondent i.e., petitioner herein 1/7th share carved out of the schedule property. It is submitted that the petitioner/respondent No.1 is -5- NC: 2023:KHC:41516 WP No. 25315 of 2023 running milk vending business and he had prayed for a portion to be carved out from the schedule property so as to continue his milk vending business. For that learned counsel would submit that apart from the said portion other portion belongs to the respondents and to other sharers. Further, learned counsel would submit that the petitioner is entitled for 1/7th share out of the share allotted to the him, he prays for allowing portion of the property in which he is carrying out milk vending business. Thus, he submits that the trial Court committed error in rejecting the application and prays for allowing the Writ petition and consequently I.A.No.6.
5. Per contra Sri.V.Shivakumar, learned counsel for the respondents No.1 to 5 would support the order passed by the trial Court. Further, he submits that the petitioner had earlier filed I.A.No.5 under Order XX Rule 18 of CPC for appointment of Court Commissioner for division of property. The said application was allowed and Court Commissioner was appointed to conduct the sale of the property in an auction. The said order was challenged before this Court in W.P.No.2157/2022 and the said Writ Petition was dismissed by confirming the said order. In the light of the said Order, it is not -6- NC: 2023:KHC:41516 WP No. 25315 of 2023 open for the petitioner to file the present I.A.No.6 and prays for dismissal of the Writ Petition.
6. Having heard the learned counsel for the parties and on perusal of the Writ Petition papers, I am of the view that the trial Court is justified in rejecting the application and moreover, impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 226 of the Constitution of India.
7. FDP No.28/2023 is filed in terms of judgment and decree dated 23.02.2012 passed in O.S. No.4212/1992, wherein the parties were allotted 1/7th share in the final decree proceedings. The petitioner had filed I.A.No.5 under Order XX Rule 18(2) of CPC to appoint Court Commissioner to dispose of the suit schedule property by effecting shares among the parties by way of sale proceeds of the property. The said application was allowed vide order dated 11.01.2022 appointing an Advocate as a Court Commissioner to conduct the sale of the suit property in public auction. The said order was challenged by the petitioner in W.P.No.2157/2022 before this Court. On the -7- NC: 2023:KHC:41516 WP No. 25315 of 2023 submission of the learned counsel for the petitioner, the following order was passed:
"Accordingly, the petition is dismissed as withdrawn. The trial Court is directed to proceed to implement the impugned order dated 11.01.2022 as expeditiously as possible and dispose of the FDP No.28/2013 pending on the file of XV Addl. City Civil and Session Judge, Bangalore, within a period of three months from today."
8. Thereafter, the petitioner has filed I.A. No.6 under Order XX Rule 18 of CPC praying to direct the Court Commissioner to bring about division of the schedule property and deliver 1/7th share carved out of the schedule property. The said application would not be maintainable. The trial Court while disposing of I.A.No.5 has held that even if the property is divided into 7 portions, it is not feasible for any of the parties to utilize the same and had come to the conclusion to appoint an Advocate as Court Commissioner to sell the property. When the Court has come to a categorical conclusion that it is not feasible to utilize if 1/7th division is made, then it is not open for the petitioner to again seek for 1/7th share and possession of 1/7th share.
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9. Hence, I do not find any merit and accordingly, the Writ Petition is rejected.
Sd/-
JUDGE GVP List No.: 1 Sl No.: 41