Karnataka High Court
Smt S N Pushpanjali vs Smt Ambujakshi C N on 19 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2026:KHC:2589
WP No. 18824 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 18824 OF 2025 (GM-CPC)
BETWEEN:
1. SMT S N PUSHPANJALI
W/O R PRAKASH RAI,
AGED ABOUT 51 YEARS,
RESIDING AT NO. 153,
7TH 'B' MAIN ROAD,
SANEGORUVANAHALLI,
BASAVESHWARANAGARA,
BENGALURU 560 079
C.N PRAKASH KUMAR
SINCE DEAD BY LR'S
2. SMT KUSUMA @ RAMANI
W/O LATE C N PRAKASH KUMAR,
Digitally signed by AGED ABOUT 51 YEARS,
PANKAJA S
Location: HIGH
COURT OF 3. SRI RAGHUNANDAN
KARNATAKA S/O LATE C.N PRAKASH KUMAR,
AGED ABOUT 39 YEARS,
4. SMT MALA
D/O LATE C N PRAKASH KUMAR,
AGED ABOUT 35 YEARS,
PETITIONER NOS. 2 TO 3 ARE
RESIDING AT SHREE SAW MILLS,
RAVIVERMA STREET,
SHIVAMOGGA-577 202
...PETITIONERS
-2-
NC: 2026:KHC:2589
WP No. 18824 of 2025
HC-KAR
(BY SRI. C.R. SANDESH FOR
SRI. JAYARAJ D S, ADVOCATE)
AND:
SMT AMBUJAKSHI C N
W/O L ANANTHAPPA,
AGED ABOUT 74 YEARS,
RESIDING AT NO. 11,
8TH MAIN, BINNY LAYOUT,
1ST STAGE, VIJAYANAGAR,
BENGALURU 560 040.
...RESPONDENT
(BY SRI. P.N. RAJESWARA, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS IN EXECUTION PROCEEDINGS IN EX PET NO.
31/2017 PENDING CONSIDERATION ON THE FILE OF THE
HONBLE COURT OF II ADDL SENIOR CIVIL JUDGE AND JMFC
AT SHIVAMOGGA VIDE ANNX-A2
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the decree holder No.2 and judgment debtor Nos.1 to 3 is directed against the impugned order dated 12.03.2025 passed on I.A.No.36 in Ex.No.31/2017, whereby the said application filed by the petitioners - judgment debtors 1 and 2 to appoint a Court Commissioner to measure and report about the actual measurement of Execution 'A' schedule property and -3- NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR demarcate the same into three shares was dismissed by the Trial Court.
2. Heard the learned counsel for the petitioners and the learned counsel for the respondent and perused the material on record.
3. It is a matter of record and an undisputed fact that in pursuance of the impugned order, the Executing Court issued a delivery warrant in respect of item No.1 of the execution schedule property, pursuant to which the Court Ameen/Bailiff took over and delivered possession of the said property to the respondent.
4. A perusal of the material on record will indicate that the respondent - Ambujakshi - plaintiff No.1 along with Pushpanjali - plaintiff No.2 instituted O.S.No.83/1996 for declaration, possession and other reliefs in relation to the suit schedule immovable properties. The said suit having been decreed in favour of the plaintiffs, the defendants approached this Court in RFA.No.1024/2006 and the Division Bench of this Court vide final judgment and decree dated 03.11.2009 modified the preliminary decree.
-4-
NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR
5. Petitioner No.1 and the respondent, having instituted the final decree proceedings in FDP.Nos.2/2011 and 3/2011, had entered into a compromise. Subsequently, petitioner No.1 - decree holder No.2 and the respondent - decree holder No.1 have filed execution proceedings to enforce, implement and execute the final compromise decree passed in terms of the compromise entered into between parties. In the said execution proceedings, the judgment debtor No.1 entered appearance and contended that since there was no demarcation of execution 'A' schedule property, it was necessary to appoint a surveyor for such demarcation/identification, without which the final decree cannot be executed. Accordingly, he filed application - I.A.No.36, which was opposed by the respondent. Pursuant to which, the Executing Court proceeded to pass the impugned order rejecting the application by holding as under:
"Case is called out.
Learned counsel for the Jdr No.1 and 2 have filed I.A No.36 under Section 151 of CPC praying for appoint any practicing Advocate along with C.M.C. Civil Engineer to measure and report about the actual measurement of 'A' schedule -5- NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR property and Demarcate the same in to 3 shares interest of justice.
2. In the affidavit, Jdr No.2 has stated that his mother ie. Jdr No.1 and Dhr. No.2 have entered into document dated 15- 03-2023. Dhr No.2 has executed Relinquishment deed in favour of Jdr No.1 pertaining to her share. Accordingly, two shares are with the Jdrs. According to the schedule measurement shown each Dhr and Jdr is measuring 4,059 Sq.ft. The said measurement is not available at the spot. The measurement mentioned in the compromise decree is against to the available measurement. None of the Dhr or Jdr have not measure the property in the final decree. There is a 242 feet is in shortage. Hence, it is not possible to take delivery for the Dhr No.1. Thus, it is in necessary to appoint Court Commissioner to measure the property available in the spot. Thus, prayed to allow the application.
3. Along with the application, the Jdrs have filed property register extract of Jdr No.1 pertaining to 4,025 sq.ft. Plinth area. On the other hand, learned counsel for the Dhr prays to issue delivery warrant with respect to Item No.1 property. Further, prays to appoint an official of Forest Department to draw an Inventory of the Timber wood material situated in the schedule Item No.1 and 2 property and to shift the same to the portion to be retained by the Jdrs. Further, prays to direct the jurisdictional Doddapete Police Station to give necessary assistance while executing the delivery warrant and also prays to permit the Court official to break open the -6- NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR lock of the execution schedule property inorder to execute delivery warrant.
4. Learned counsel for the Jdr submits that, without deciding I.A. No.36, this Court cannot issue delivery warrant with respect to the item No.1 property.
5. Learned counsel for Dhr No.1, filed objection to the application stating that, the Jdr is trying to obstruct the execution of compromise decree. The Jdrs have not challenged the compromise decree and now trying to obstruct the Dhr No.1 by disputing the measurement available on the spot. Thus, prayed to reject the application.
6. Heard, both sides. Perused the record. On perusal it appears that, Dhr No.1 and 2 have jointly filed this petition to execute the compromise decree dated: 11-02-2015 passed in FDP No.3/11 arising out of the judgment and decree passed in O.S.83/1996. This Court already issued delivery warrant on 01-02-2017, but the same was unexecuted as the JDRs obstructed the same. Further, the application filed by the objector under Order XXI Rule 97 of CP.C. was dismissed by the Court. Now the Jdr No.1 and 2 come up with this application praying to appoint the Court Commissioner to measure the property after lapse of 14 years of final decree. According to the Jdr No.1 and 2, they have got right on the share of DHR No.2 through relinquishment deed and hence they have entitled for 8118 sq.ft. And Dhr No.1 is entitle for 4059 sq.ft as per the decree.-7-
NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR
7. Since, there is no property available in the spot. As per the compromise decree, it is necessary to appoint the Court Commissioner. On perusal of final decree for partition drawn on the basis of compromise shows that, 4059 sq.ft. Western portion shall allotted to the share of petitioner No.1 middle portion of 4,059 sq.ft allotted to the share of petitioner No.2, Eastern portion of 4095 sq. ft allotted to the share of Jdr No.1 and 2 Accordingly, commissioner sketch has been prepared. The compromise decree further shows that, time was granted, since Jdr No.1 and 2 have requested the Dhrs to grant 6 months time to handover the respective shares by demarcating the area with the help of Surveyor. Further, it is agreed in the compromise petition that, if the Jdrs failed to handover the possession the petitioners are at liberty to take possession by executing the final decree.
8. Since, the Jdrs No.1 and 2 have failed to comply the compromise decree the present petition is filed in the year 2017. Admittedly, the original suit in OS 83/1996 decreed on 18-01-2006, FDP 2/11 clubbed with FDP 3/11 disposed on 11/02/2015. The dispute between the parties is pending from 1996. Even after compromise, the Dhr No.1 has not able to enjoy the fruits of the decree. The compromise decree shows that, 6 months time has been granted to demarcate the area by metes and bounds and to handover the respective share of the Dhrs. The Jdr No.1 and 2 without doing so have obtained the share of Dhr No.2 through relinquishment deed and stated that, 4059 sq.ft. is not available in the spot and if Dhr No.1 is ready to take lesser measurement, they have no objection to issue delivery warrant. When through -8- NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR compromise decree, the Dhr No.1 and 2 and Jdrs have allotted 4059 sq.ft. each, why the Dhr No.1 alone to take lessor measurement is not explained by Jdr No.1 and 2. Without complying the compromise decree, the Jdr No.1 and 2 have acquired the share of Dhr No.2 through relinquishment deed during the pendency of this petition. When the parties to the petition themselves filed compromise petition and obtained decree there is no necessary to appoint the Court commissioner to measure the property only on the say of Jdr No.1 and 2. This petition is filed only to execute the compromise decree. The Court need not to find out actual measurement available on the spot to handover the possession as per the compromise decree in FDP 3/2011. The Dhr No.1 has got right to the extent of 4059 sq.ft. in item No. 1 property. Accordingly, I proceed to pass the following:
ORDER I.A. No 36 file by the JDR No.1 and 2 is hereby rejected.
Consequently, issue delivery warrant with respect to item No. 1 property.
Further. D.R.F.O, Forest Department, Shivamogga is hereby appointed to draw an Inventory of the Timber /wood material situated in the item No.1 of the execution schedule property and to shift the same to the portion of the Jdr No.1 and 2.-9-
NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR Further, Jdr No.1 and 2 have directed to bear the cost of the same.
Further, Court Ameen is permitted to Breakup the lock of execution schedule item No.1 property and S.H.O. of Doddapete Police Station is directed to give necessary assistance to Court Ameen while executing the delivery warrant.
Office is directed to intimate the same to concerned department.
Issue Delivery Warrant accordingly."
6. Along with the statement of objections, the respondent has produced the records of the Executing Court including the copy of the mahazar in Ex.No.31/2017 and the subsequent proceedings, which would prima facie indicate that the Executing Court had accepted the mahazar and the report of the Court Commissioner.
7. In fact, a perusal of the impugned order will indicate that pursuant to the impugned order dated 12.03.2025, the Court Ameen/Bailiff is said to have taken over and delivered possession of the property to the respondent on 04.04.2025. It is also a matter
- 10 -
NC: 2026:KHC:2589 WP No. 18824 of 2025 HC-KAR of record and an undisputed fact that present petition was filed much later on 24.06.2025.
8. Under these circumstances, though rival contentions have been urged by both sides in support of their respective claims including the factum of possession/dispossession as alleged by both sides, without expressing any opinion on the merits/demerits of the rival contentions and on the short ground that the Court Ameen/Bailiff appointed by the Executing Court is alleged to have delivered possession of the property to the respondent, I deem it just and appropriate to dispose of this petition without interfering with the impugned order and by reserving liberty in favour of the petitioners to take recourse to such other remedies which are available in law.
Subject to the aforesaid directions and the liberty reserved in favour of the petitioners, the petition stands disposed of.
SD/-
(S.R.KRISHNA KUMAR) JUDGE PKS List No.: 1 Sl No.: 17