Karnataka High Court
Mr. M S Subbe Gowda vs Mr. M S Narayana Gowda on 29 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:5145
WP No. 1330 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 1330 OF 2025 (GM-CPC)
BETWEEN:
MR. M S SUBBE GOWDA,
AGED ABOUT 78 YEARS,
S/O. LATE MK SHESHE GOWDA,
R/O. HALEMUDIGERE,
MUDIGERE TOWN AND POST,
MUDIGERE TALUK,
CHIKKAMAGALURU - 577 101.
...PETITIONER
(BY SRI. KRISHNA S. VYAS, ADVOCATE)
AND:
MR. M S NARAYANA GOWDA,
AGED ABOUT 74 YEARS,
S/O. LATE SRI. MK SHESHE GOWDA,
R/O. HALEMUDIGERE,
Digitally signed
DOOR NO. 651, 10TH C CROSS,
by CHANDANA DODDI ROAD, KR PURAM,
BM HASSAN - 573 201.
Location: High
Court of ...RESPONDENT
Karnataka (BY SRI. BHAIRAV G. V., ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED
ORDER DATED 05/12/2024, PASSED BY THE HON'BLE CIVIL JUDGE
AND JMFC AT MUDGERE IN EX.NO.06/2022 ON IA.NO.II UNDER
ORDER XXVI RULE 9 OF CPC, 1908, VIDE ANNEXURE-K.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2026:KHC:5145
WP No. 1330 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the petitioner-judgment debtor in Ex.No.6/2022 is directed against the impugned order dated 29.11.2024, whereby the application I.A.No.II filed by the respondent-decree holder under Order XXVI Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection/survey of the decree schedule property was allowed by the Executing Court by holding as under:
"ORDERS ON IA NO.II The present application is filed at the stage of further evidence in lieu of enquiry. The DHR has filed the present application seeking appointment of Court Commissioner for the purpose of ascertaining encroachment of decree schedule property.
2. The decree holder has contended that the judgment debtor has encroached upon the decree schedule property in violation of decree subject matter of this execution petition. For the purpose of ascertaining the said encroachment, appointment of court commissioner is very much necessary and the sketch and report of the court commissioner would aid in resolution of dispute between the parties. On thesegrounds, the DHR has sought for allowing the application.-3-
NC: 2026:KHC:5145 WP No. 1330 of 2025 HC-KAR
3. On the other hand, the judgment debtor has filed his statement of objections wherein contended that order 26 Rule 9 of CPC is not applicable in execution proceedings. In order to obtain the relief Ex.No.6/2022 sought in the application, the DHR has to establish the allegation independently and he cannot shift the same on the shoulder of others. No grounds are made out to appoint the court commissioner and the one stated in the application is frivolous and fictitious. The dispute between the parties cannot be resolved by appointing the court commissioner. On the above grounds, the JDR has sought for rejection of the application.
4. Heard learned counsel for DHR, perused the written argument of JDR and also perused the entire materials available on record.
5. This is a execution petition where the decree holder has alleged violation of subject matter decree i.e., one passed in OS.No.233/1994 wherein granted permanent injunction against the judgment debtor in connection to land to extent of 15 guntas in Sy.No.215 of Hale Mudigere Village. In the instant application, the DHR has specifically alleged that the JDR has encroached upon the decree schedule property. The ground urged by the JDR is that order 26 Rule 9 of CPC has no application in the execution proceedings. This ground cannot be accepted as order 21 Rule 32(5) which provides for execution of a decree of permanent injunction is exhaustive and also include relief of prohibitory as well as the mandatory injunction. Herein the case, the -4- NC: 2026:KHC:5145 WP No. 1330 of 2025 HC-KAR specific allegation of the DHR being that the JDR has encroached upon the decree schedule property in violation of subject matter decree, ascertaining the alleged encroachment shall have bearing on full and final adjudication of this petition. Ex.No.6/2022 Under the circumstances, this Court considers that the appointment of court commissioner as sought for is necessitated. Hence, the following:
ORDER I.A.No.II filed by the DHR under Order XXVI Rule 9 of Code of Civil Procedure is hereby allowed and accordingly, court commissioner is appointed.
ADLR, Mudigere Taluk, is hereby directed to appoint qualified surveyor to conduct Commission work to hold local inspection so as to conduct the survey of decree schedule property, to note the encroachment if any in the same and to submit report in that regard.
Commissioner fee is tentatively fixed at Rs.3,000/-.
Both parties are hereby directed to file their respective memo of instructions by: 05.12.2024."
2. Learned counsel for the petitioner-judgment debtor on instructions submits that instead of the ADLR appointing one more person appointing a surveyor to conduct the commission work, the impugned order may be modified by directing the ADLR, Mudigere Taluk, to himself conduct a survey and submit a report. -5-
NC: 2026:KHC:5145 WP No. 1330 of 2025 HC-KAR
3. The said submission is placed on record.
4. Learned counsel for the respondent-decree holder submits that he has no objection for the impugned order to be modified by appointing an ADLR instead of a surveyor for the purpose of conducting commission work.
5. In view of the aforesaid facts and circumstances, I deem it just and appropriate to dispose of this petition without interfering with the impugned order and by issuing certain directions:
6. In the result, I pass the following:
ORDER
(i) The petition is disposed of without interfering with the impugned order.
(ii) The Executing Court is directed to appoint the ADLR, Mudigere Taluk, himself as the Court Commissioner for the purpose of conducting local inspection/survey of the execution schedule property.
(iii) Liberty to file memo of instructions, objections, if any, to the Commissioner's Report and also to -6- NC: 2026:KHC:5145 WP No. 1330 of 2025 HC-KAR examine/cross examine the Court Commissioner, if they so desire.
(iv) The Executing Court is directed to conclude the execution proceedings within a period of six months from the date of receipt of a copy of this order.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 77