Keshav S/O Timmareddi Udapudi vs Subhas S/O Timmaraddi Udapudi on 26 February, 2020

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Karnataka High Court

Keshav S/O Timmareddi Udapudi vs Subhas S/O Timmaraddi Udapudi on 26 February, 2020

Bench: S.G. Pandit

           IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH

       DATED THIS THE 26TH DAY OF FEBRUARY, 2020

                        BEFORE

           THE HON'BLE MR.JUSTICE S.G. PANDIT

         WRIT PETITION NO.101917/2018 (GM-CPC)

BETWEEN:

KESHAV S/O TIMMAREDDY UDAPUDI
AGE:69 YEARS, OCC:PENSIONER,
R/O MATA, RAJESWARI EXTENSION,
RANEBENNUR, DIST:HAVERI.
                                         ....PETITIONER
(BY SRI. VIJAYKUMAR B HORATTI, ADV.)

AND:

SUBHAS S/O TIMMAREDDY UDAPUDI
AGE:66 YEARS, OCC:PENSIONER,
R/O MATA RAMAPUR SITE,
OPP. PATTANSHETTI PETROL PUMP,
SAUNDATTI, DIST:BELAGAVI.
                                         ...RESPONDENT

(BY SRI. M.R. SHINDE, SRI. ABHISHEK PATIL, SRI AKSHAY
KATTI & SRI. ANAND ASTEKAR, ADVOCATES)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED ORDER PASSED IN FDP NO.15/2014 ON IA NO.6 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE, SAUNDATTI DATED
2.3.2018 PRODUCED AT ANNEXURE-K TO THE WRIT PETITION.

      THIS WRIT PETITION COMING ON FOR ORDERS      THIS
DAY, THE COURT MADE THE FOLLOWING:
                              2



                          ORDER

The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 2.3.2018 on IA No.6 in FDP No.15/2014 on the file of the Prl. Senior Civil Judge, Saundatti.

2. Heard the learned counsel for the petitioner and learned counsel for the respondent.

3. The suit in OS No.71/2007 is for partition and separate possession. The said suit came to be decreed on 22.1.2013 holding that both the petitioner and respondent are entitled for half share each in the A schedule property. The 1st plaintiff is entitled for a sum of Rs.20,663/- in schedule B property. Both the petitioner as well as the respondent filed two separate FDPs i.e. FDP No.11/2013 by the petitioner and FDP No.15/2014 by the respondent in respect of the very same judgment and decree dated 22.1.2013 passed in OS No.71/2007. At the request of the petitioner, the 3 Court Commissioner was appointed and he had submitted his report as per Annexure-D suggesting the division of 'A' schedule property. Initially, the respondent had filed objections to the Commissioner's report, subsequently filing a memo dated 16.1.2018 not pressed the objections. Thereafter, respondent filed IA No.6 under Order XXVI Rule 13 of CPC to appoint a Civil Engineer as Court Commissioner to value the 'A' schedule property. The petitioner herein opposed the application by filing objections. In the objections, it is stated that when the petitioner had no objection to the report of the Court Commissioner at Annexure-D, once again appointing the Court Commissioner to value the suit property is unnecessary. The trial Court under the impugned order allowed the IA No.6 and appointed the Assistant Engineer, Town Municipality as Court Commissioner to work out the value of the share as per preliminary decree. The said order is under challenge in this writ petition.

4. Having heard the learned counsels for the parties and on perusal of the writ petition papers, I am of the view that the petitioner has not made out any ground to interfere with the impugned order under Article 227 of the Constitution of India.

5. On perusal of the Annexure-D, Court Commissioner's report would indicate that there was no valuation. The Commissioner report had suggested the division of the property in respect of A schedule property. In the present impugned order, there is specific direction to the Court Commissioner (Assistant Engineer) to value the suit schedule property as per preliminary decree. The trial Court taking note of the submission of the respondent observed that if the valuation is obtained, either of the party could buy the super constructed area which has fallen to the share of either of the party. I find no reason to interfere with the impugned order under Article 227 of the Constitution of 5 India. By obtaining the valuation of the property, no prejudice would be caused to the petitioner.

6. For the reasons stated above, the writ petition stands rejected. The parties to the proceedings to co-operate with the trial Court to dispose of the FDP as expeditiously as possible.

In view of disposal of the main petition, pending applications, if any, do not survive for consideration, hence, they are also disposed of.

Sd/-

JUDGE JTR

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