Karnataka High Court
Sri. Murthy K R vs Smt. Rajeshwari on 4 August, 2023
Bench: Vijaykumar A Patil
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WP No. 17777 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.17777 OF 2022 (GM-CPC)
BETWEEN:
SRI. MURTHY K. R.
S/O LATE K.M. RAMASWAMY,
AGED ABOUT 62 YEARS,
R/AT RAJESHWARI NILAYA,
N.T.B. ROAD, JANNAPURA,
BHADRAVATI, SHIVAMOGGA-577 301.
...PETITIONER
(BY SRI. CHANDAN M., ADV. FOR
SRI SUNIL KUMAR B N., ADV.)
AND:
1. SMT. RAJESHWARI
W/O NARAYANASWAMY
AGED ABOUT 64 YEARS,
R/AT 40/D, 45TH MAIN,
Digitally signed
by YADAGIRI, MYSORE-570020.
MARKONAHALLI
RAMU PRIYA
Location: HIGH
COURT OF 2. SMT.VELLIYAMMA
KARNATAKA
W/O T.V.SUBRAMANYAM
AGED ABOUT 66 YEARS,
R/AT .89, BALAJINAGAR,
GOPICHETTIPALYAM TALUK,
EROE DISTRICT,
TAMIL NADU STATE-638001.
3. SMT.VIJAYA
DEAD BY HER LRS
-2-
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WP No. 17777 of 2022
3A M.SHANKAR,
S/O MUTHUVELU
AGED ABOUT 65 YEARS,
3B SRI M.JAYAKUMAR
S/O MUTHUVELU
AGED ABOUT 63 YEARS
3C SRI M.ANAND
S/O MUTHUVELU
AGED ABOUT 55 YEARS
3D SRI M.NAGARAJ
S/O MUTHUVELU
AGED ABOUT 58 YEARS
ALL ARE R/AT NO.3, 104,
GANDHINAGAR,
UTHUKULI ROAD,
MALLAPALYAM,
EROD, TAMILNADU.
4. SMT.SARASWATHI
W/O K.S.RANGASWAMY
AGED ABOUT 69 YEARS,
R/AT NO.10, KARUNANIDHI NAGAR,
RAMANATHAPURAM,
COIMBATORE
TAMILNADU STATE-641 001.
5. SRI.PADMINI
W/O LATE RAJGOPAL
AGED ABOUT 57 YEARS,
R/AT RAJESHWARI NILAYA,
NTB ROAD, JANNAPURA
BHADRAVATHI, SHIVAMOGA-577 301.
6. SRI.MANJUNATH
S/O K.M.RAMAMURTHY
AGED ABOUT 63 YEARS
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WP No. 17777 of 2022
R./AT RAJESHWARI NILAYA,
NTB ROAD, JANNAPURA
BHADRAVTHI, SHIVAMOGGA-577 301.
...RESPONDENTS
(BY SRI.A.ABHISHEK, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS
DATED 03.02.2021 AND 22.11.2021 PASSED BY THE COURT OF
CIVIL JUDGE (SNR DVN) AND JMFC, BHADRAVATHI, IN FDP
NO.16/2011, VIDE ANNX-A1 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner under
Article 227 of the Constitution of India praying to set aside
the orders dated 22.11.2021 and 03.02.2021 passed in
FDP No.16/2011 by the Civil Judge and JMFC, Bhadravathi
(for short, 'the trial Court'), whereby the application filed
by respondent No.1 under Order XXVI Rule 1 of CPC for
appointment of Court Commissioner to conduct public
auction in respect of item Nos.1 and 2 of the proceedings
was allowed.
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2. Brief facts leading to filing of this petition are
that respondent No.1 has initiated final decree proceedings
in FDP No.16/2011 seeking prayer to draw final decree in
favour of respondent No.1, who is plaintiff No.2 in
O.S.No.16/2006. During the pendency of the above said
final decree proceedings, respondent No.1 has filed an
application seeking for appointment of Court
Commissioner contending that they are the beneficiaries of
the decree and item Nos.1 and 2 are house and site
properties, which cannot be divided into seven parts as
per the preliminary decree. Respondent No.1, being the
beneficiary under the said decree, is unable to enjoy the
judgment and decree passed in O.S.No.16/2006 and
sought to appoint Court Commissioner to make a public
auction of item Nos.1 and 2 properties and deposit the
proceeds before the Court and disburse 1/7th share to
respondent No.1.
3. The said application was opposed by the
petitioner by filing objections contending that the
properties in question i.e. item No.1 being house property,
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is an ancestral property and other than the said property
he does not have any property to reside. Hence, sought to
reject the said application.
4. The trial Court, considering the averments
made in the application and objections by the petitioner,
has allowed the said application - I.A.No.VIII filed by
respondent No.1 under Order XXVI Rule 9 of CPC, which is
challenged in the present petition.
5. Sri.Chandan M., learned counsel for the
petitioner submits that the trial Court has committed an
error in allowing the application filed by respondent No.1
seeking to appoint the Court Commissioner for the
purpose of conducting auction of item No.1 schedule
property. It is further submitted that the property being
the house property measuring 40 X 93 feet, the same can
be divided into seven parts as per the decree, without
appreciating the said fact, the trial Court has proceeded to
allow the application by appointing the Court
Commissioner and permitting the auction. It is also
submitted that the petitioner is residing in the said
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property; the said property is an ancestral property and
the petitioner is having sweet memories of his childhood.
He seeks to allow the writ petition by setting aside the
impugned order passed by the trial Court by directing to
divide the subject property into seven shares.
6. Per contra, Sri.A.Abhishek, learned counsel for
cavetor/respondent No.1 submits that he has filed an
application for appointment of the Court Commissioner for
the purpose of conducting auction of the subject
properties, which are not divisible into seven parts. The
entire property consists of 40 X 93' = 3720 sq.feet. If the
said property is divided into seven parts, it will not be
useful for any of the parties to the proceedings. Hence, he
seeks to dismiss the petition.
7. I have heard learned counsel for the petitioner,
learned counsel for caveator/respondent No.1 and perused
the material on record.
8. It is not in dispute that the respondent No.1,
who has initiated FDP No.16/2011 seeking drawing of final
decree in her favour by allotting 1/7th share in the suit
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schedule properties including item Nos.1 and 2. The
respondent No.1 has filed an application for appointment
of Court Commissioner to conduct public auction of item
Nos.1 and 2 i.e., house and site property.
9. During the course of submissions, learned
counsel for respondent No.1 submits that insofar as item
No.2 property is concerned, the petitioner has sold the
same during the pendency of the proceedings. Hence,
only item No.1, which is house property measuring 40 X
93 feet is required to be divided. However, item No.1
property is not possible to divide into seven shares, if it is
divided into seven shares, then each of the party may get
approximately 530sq.feet of land. The trial Court, on
considering this material on record, has recorded a finding
that the property is not available for division, if it is
divided into seven shares, it would be very small bit of
extent to each of the beneficiaries under the decree. The
said finding of the trial Court is in the interest of all the
beneficiaries of the decree. Hence, the trial Court rightly
allowed the application seeking for appointment of Court
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Commissioner for conducting auction and sale of item No.1
property. I do not find any error in the order passed by
the trial Court calling for any interference in the present
writ petition.
10. For the reasons stated above, there is no merit
in this writ petition. Accordingly, the same is hereby
dismissed.
Sd/-
JUDGE
BSR
