Karnataka High Court
Sri Venaktaramanappa vs Smt Hemavathi on 4 April, 2022
Bench: E.S.Indireshpresided Byesij
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
W.P. NO. 4518 OF 2022(GM-CPC)
BETWEEN
SRI VENAKTARAMANAPPA
S/O LATE VENKATAPPA,
AGED ABOUT 87 YEARS,
R/O IMMADIHALLI VILLAGE,
K.R.PURAM HOBLI,
BENGALURU EAST TALUK-560 036
...PETITIONER
(BY SRI ARNAV BAGALWADI, ADVOCATE FOR
SRI HANUMANTHARAYA D, ADVOCATE)
AND
1. SMT HEMAVATHI
D/O V HOMBEGOWDA,
AGED ABOUT 40 YEARS,
2. SRI MARUTHI
S/O V.HOMBEGOWDA,
AGED ABOUT 34 YEARS,
3 . SMT LAKSHMI @ REKHA
D/O V. HOMBEGOWDA
AGED ABOUT 31 YEARS,
4. SRI V HOMBEGOWDA
S/O LATE VENKATAPPA,
2
AGED ABOUT 60 YEARS,
ALL ARE R/O IMMADIHALLI VILLAGE,
K.R.PURAM HOBLI,
BENGALURU EAST TALUK-560 036.
....RESPONDENTS
(BY SRI T H NARAYAN, ADVOCATE FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 11TH FEBRUARY, 2022 PASSED BY
THE II ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU IN FDP NO.30 OF 2018 AT ANNEXURE-B
I.A.NO.I ANNEXURE-P AND CONSEQUENTLY PRAYED TO ALLOW
THE SAME.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by respondent No.2, in Final
Decree Proceedings No.30 of 2018 on the file of the II Additional
Senior Civil Judge, Bengaluru Rural District, Bengaluru,
challenging the order dated 11.02.2022, dismissing the
application filed under Order 21 Rule 22 of Code of Civil
Procedure.
2. Brief facts are that, the respondents herein have
filed Original Suit No.552 of 2003 before the trial Court, seeking
partition and separate possession in respect of suit schedule
property. The said suit came to be disposed of on 07.02.2012
and feeling aggrieved by the same, defendant No.1, has referred
RA No.62 of 2012 before the First Appellate Court. The said
appeal came to be dismissed in terms of the memo dated
10.08.2018. In the meanwhile, plaintiffs 1 to 3 have preferred
Final Decree Proceedings No.30 of 2018 before the trial Court,
seeking execution of the decree. In the said Final Decree
proceedings, the petitioner herein has filed application under
Order 21 Rule 22 of Code of Civil Procedure seeking stay of
further proceedings in Misc.No.24 of 2021. The said application
was resisted by the respondents herein. The Trial Court, after
considering the material on record by impugned order dated
11.02.2022, dismissed the application with costs. Feeling
aggrieved by the same, respondent No.2 in Final Decree
Proceedings has preferred this Writ Petition.
3. I have heard Sri Arnav Bagalwadi, learned counsel
appearing on behalf of Sri Hanumantahraya D., for the petitioner
and Sri T. H. Narayan, learned counsel appearing for the
respondent No.2/caveator.
4. Sri Arnav Bagalwadi, learned counsel appearing for
the petitioner argued that pursuant to the disposal of the
Regular Appeal, the petitioner herein has filed Misc. No.24 of
2021 before the trial Court and therefore, he submits that until
the completion of the proceedings in the miscellaneous petition,
the Final Decree Proceedings cannot be considered. Accordingly,
he sought for interference in this Writ Petition.
5. Per contra, Sri T.H. Narayan, learned counsel
appearing for the respondent sought to justly the order passed
by the trial Court and contended that the court has already
appointed Court Commissioner for demarcation of the property
in question and therefore, it does not call for interference in the
present Writ Petition.
6. Having heard the learned counsel appearing for the
parties and taking into consideration finding recorded by the
trial Court, it is not in dispute that the Original Suit No.552 of
2003 came to be disposed of by the trial Court by judgment and
decree dated 07.02.2012, wherein, the trial Court has held that
the plaintiffs are entitled for 1/4th share each in the suit schedule
property and also ordered to ascertain the mesne profits during
the Final Decree Proceedings. It is not in dispute that said
judgment and decree has been questioned in RA No.62 of 2012,
and the said Regular Appeal came to be disposed of by the court
in terms of memo dated 10.08.2018 filed by the parties in the
appeal. In that view of the matter, though the petition has been
filed by the parties in Misc. No.24 of 2021, however, looking into
the finding recorded by the trial Court, it reveals that Court
Commissioner has already been appointed by the trial Court for
demarcation and to submit the report in Final Decree
Proceedings and further, the trial Court has directed the plaintiff
to deposit Rs.5,000/- as Commissioner's fee before ADLR and in
that view of the matter, there is no perversity or illegality in the
order passed by the trial Court and accordingly, Writ Petition is
dismissed.
Sd/-
JUDGE
SB
