[Cites 3, Cited by 0]
Karnataka High Court
Smt Indira vs K Shrinivas Rao on 12 December, 2025
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NC: 2025:KHC:53144
WP No. 47386 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 47386 OF 2017 (GM-CPC)
BETWEEN:
SMT. INDIRA
SINCE DECEASED BY HER LR
SURESH BHAT
S/O LATE VEDAVYASA BHAT
AGED ABOUT 66 YEARS
R/A KEELAKA HOUSE
LAILA VILLAGE AND POST
BELTHANGADY TALUK
D.K. DISTRICT - 574 201.
...PETITIONER
(BY SRI. SACHIN B.S, ADVOCATE)
AND:
Digitally signed
by
SHARADAVANI K. SHRINIVAS RAO
B
Location: High SINCE DEAD BY HIS LRS
Court of
Karnataka
1. GEETHA MATHEW
D/O SHRINIVAS RAO
AGE:MAJOR
C/O KATHYAYINI STORES
BELTHANGADY POST
BELTHANGADY KASBA VILLAGE
BELTHANDAGY TALUK,
DK - 574 214.
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WP No. 47386 of 2017
HC-KAR
2. ARAVINDA RAO
S/O SHRINIVAS RAO,
C/O KATHYAYINI STORES,
BELTHANGADY POST,
BELTHANGADY KASBA VILLAGE,
BELTHANDAGY TALUK,
DK - 574 214.
3. SMT. CHITRA NAYAK,
W/O SRIDHAR NAYAK,
R/O NEAR SL TEMPLE,
PANEMANGALORE,
BANTWAL TALUK - 574 211.
4. SMT. MITHRA KAMATH
W/O MADHAV KAMATH
AGED 59 YEARS
R/O GURVAYANAKERE
BELTHANGADY TALUK - 574 214.
5. SMT. GEETHA KINI
W/O LATE P. UPENDRA KINI
AGED 56 YEARS
R/O GURUVAYANAKERE
BELTHANGADY TALUK - 574 214.
6. SMT. MUKTHA G. PAI
W/O V. PAI
AGED 52 YEARS
R/AT NEAR TALUK OFFICE
BELTHANGADY TALUK - 574 214.
...RESPONDENTS
(SERVIDE OF NOTICE TO R2 AND R6, HELD SUFFICIENT (VIDE
ORDER DATED 29.07.2025;
R1, R3, R4, R5 SERVED)
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NC: 2025:KHC:53144
WP No. 47386 of 2017
HC-KAR
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DTD15.9.2017 PASSED IN RA NO.77/2007 ON THE FILE
OF CIVIL JDUGE [SD] AND ADDITIONAL CJM PUTTUR AS PER
ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION
AS PRAYED FOR AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed challenging the order dated
15.09.2017 passed in R.A.No.77/2007 by the Civil Judge,
Senior Division and Additional CJM, Puttur.
2. Sri.Sachin. B.S, learned counsel appearing for the
petitioner submits that the petitioner has filed an appeal in
R.A.No.77/2007 challenging the judgment of the trial Court
wherein the respondent's suit for delivery of possession was
decreed and in the said appeal, the petitioner filed an
application for appointment of a Court Commissioner for
identification of the plaint suit schedule property in the said
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application, which was not considered on merits, but under the
impugned order, it was ordered to defer its consideration along
with the appeal. It is submitted that the dispute is with regard
to the identification of the property and once the Report is
available before the Appellate Court it would aid the Appellate
Court to decide the lis between the parties in a proper way. In
support of his contention, he places reliance on the decision of
this Court in the case of Smt.Nithilakshi and Another Vs.
Dakshina Kannada Zilla Panchayath and Another in
W.P.No.42757/2014 is disposed of on 17.10.2014, seeks to
allow the petition.
3. Notice on the respondents is served, but there is no
representation.
4. I have heard the arguments of the learned counsel
for the petitioner and perused the material available on record.
5. The records indicate that the respondents have filed
O.S.No.157/2013 against the petitioner for relief of delivery of
possession, the said suit came to be decreed on 15.06.2007.
Being aggrieved, the petitioner filed a Regular Appeal in
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R.A.No.77/2007, which is pending on the file of the Principal
Senior Civil Judge and JMFC Belthangady, Dakshina Kannada.
In the said appeal, the petitioner/appellant filed an application
under Order XXVI Rule 9 of Code of Civil Procedure, 1908 (for
short, 'CPC') seeking the appointment of Court Commissioner
to identify the property in the suit schedule. The trial Court
under the impugned order, deferred the consideration of the
application by ordering that the said application shall be
considered along with the main appeal.
6. It is to be noticed that when the appellant is
disputing the existence or identity of the property, it would be
appropriate for the Court to entertain such an application, so
that the Court Commissioner can give actual Report to the
court below, which would aid the Appellate Court to decide the
appeal on its merits. This Court in the case of Smt.Nithilakshi
(supra) has observed that the appellate Court shall consider
the application for appointment of Court Commissioner and
pass appropriate orders on merits and it cannot defer the
consideration along with the main appeal.
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7. Considering the nature of relief sought, the
contentions advanced and taking note of the decision of the Co-
ordinate Bench, I am of the considered view that the petition
deserves to be allowed. Accordingly, the writ petition is
allowed. The impugned order dated 15.09.2017 passed in
R.A.No.77/2007 is set aside. The First Appellate Court is
directed to consider the application filed under order XXVI Rule
9 of CPC in accordance with law and pass orders.
No order as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
rv
List No.: 1 Sl No.: 33
