Shri Laxman Kallappa Mali vs Shri Somanath Shivaputrappa Ambali on 26 June, 2013

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Karnataka High Court

Shri Laxman Kallappa Mali vs Shri Somanath Shivaputrappa Ambali on 26 June, 2013

Bench: S.N.Satyanarayana

                             1



            IN THE HIGH COURT OF KARNATAKA
               CIRCUIT BENCH AT DHARWAD

          DATED THIS THE 26TH DAY OF JUNE 2013

                          BEFORE

       THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA

          REGULAR SECOND APPEAL NO.5640/2009

BETWEEN:

1.    SHRI LAXMAN KALLAPPA MALI
      AGE 65 YEARS, OCC: AGRICULTURE
      R/O JAMBAGI RAOD, NEAR RAMDURGA
      JAMAKHANDI-587 301
      DIST:BAGALKOT                        ... APPELLANT

(By Sri : M.G.NAGANURI : S.P.PATIL, ADV)


AND

1.    SHRI SOMANATH SHIVAPUTRAPPA AMBALI
      AGE 56 YEARS, OCC:BUSINESS
      R/O MRUTUNJAY AUTO SERVICE STATION
      NEW COTTON MARKET
      HUBLI-580 029, DIST:DHARWAD          ... RESPONDENT

(By Sri : BASAVARAJ GODACHI FOR C/R1)

      THIS RSA IS FILED U/S. 100 CPC., AGAINST THE
JUDGEMENT     &  DECREE   DTD:26-10-2009 PASSED  IN
R.A.NO.10/2009 ON THE FILE OF THE FAST TRACK COURT,
JAMKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DTD:14-09-2007 AND THE DECREE PASSED IN
                                       2



F.D.P.NO.18/2006 ON THE FILE OF THE PRL. CIVIL JUDGE(SR.DN)
JAMKHANDI.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This second appeal is filed by defendant in FDP.No.18/2006 on the file of Principal Civil Judge (Sr.Dn), Jamakhandi, impugning the final decree passed in the said proceedings pursuant to commission report filed by ADLR on the ground that though Principal Civil Judge (Sr.Dn), Jamakhandi appointed by ADLR/Tahsildar as Court Commissioner to effect partition, said order is not properly adhered to by ADLR, instead he has deputed Taluka Surveyor to complete the commission work on his behalf, which means there is delegation of work entrusted to him. Therefore, the order passed in final decree proceedings pursuant to same was challenged in regular appeal and having failed in the said appeal has come up in this second appeal.

2. Since the question involved in this appeal being in the narrow compass which is already decided by this Court in the matter of Shamanna Setty -vs- B.L.Channegowda, reported in ILR 2006 KAR 3588, question of admitting this second appeal and keeping this appeal in cold storage for years would not enure to the benefit of either to appellant or to contesting respondent, who has succeeded in all the courts. In other words, admitting this appeal would unnecessarily create harassment to respondent herein who has succeeded in all the courts below. Therefore, to put quietus to this litigation best option that is available to this Court is to set aside the judgment and decree passed in regular appeal and as well as in FDP 18/2006. Thereafter refer this matter back to Civil Judge (Sr.Dn), Jamakhandi to get Commission warrant executed personally through ADLR/Tahsildar instead of same being executed by his deputy as it is contrary to decision rendered by this Court referred to above.

3. With the aforesaid observations this second appeal is allowed and the matter is remanded back to Final Decree 4 court. It is made clear that in the event of ADLR does not personally execute warrant and commit mistake of getting it done through his assistant, the Final Decree Court shall take punitive action against ADLR/Tahsildar for disobeying the order of the said Court. It is also made clear that entire exercise shall be completed within 45 days from the date of receiving the records. Tahsildar also shall be reminded to see that he shall execute commission warrant in accordance with law without causing any further delay in the matter.

SD/-

JUDGE nd.

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