[Cites 6, Cited by 0]
Karnataka High Court
Vijay vs Sitabai on 9 April, 2026
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2026:KHC-K:3171
WP No. 201427 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 201427 OF 2026 (GM-CPC)
BETWEEN:
VIJAY S/O VITHAL BHOSALE,
AGE: 56 YRS, OCC: BUSINESS,
R/O SHAHPETI, STATION BACK ROAD,
VIJAYAPURA.
...PETITIONER
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. SITABAI W/O LAXMIKANT GHORPADE,
AGE: 66 YRS, OCC: HH WORK,
Digitally signed R/O UDAY NAGAR, KHB COLONY, BACK SIDE,
by SWETA JUMMA MASJID, VIJAYAPURA-586101.
KULKARNI
Location: HIGH
COURT OF 2. SAVITRI W/O SAMBAJI WADAKAR,
KARNATAKA AGE: 53 YRS, OCC: HH WORK,
R/O DEVAR HIPPARGI ROAD,
TALIKOTI DIST. VIJAYAPURA-586101.
3. RENUKA W/O NARAYAN SALUNKE,
AGE: 58 YRS, OCC: HH WORK
R/O 29 GOVIND KRUPA BUILDING
KAGGADAS PURA, 1ST CROSS
1ST FLOOR, C V RAMAN NAGAR, BENGALURU.
4. RENUKA W/O SURESH BHOSALE,
-2-
NC: 2026:KHC-K:3171
WP No. 201427 of 2026
HC-KAR
AGE: 53 YRS, OCC: HH WORK,
R/O SHAHPETI STATION BACK ROAD,
VIJAYAPURA-586101.
5. CHANDRAKANT S/O VITHAL BHOSALE,
AGE: 59 YRS, OCC: BUSINESS
R/O SHAHPETI, STATION BACK ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A) A WRIT
OF CERTIORARI OR ANY OTHER ORDER OR WRIT OF THE LIKE
NATURE AND SET-ASIDE THE IMPUGNED ORDER DATED
10.12.2025 ON I.A.NO.2 IN EP NO. 277/2021 ON THE FILE OF
III ADDL. SENIOR CIVIL JUDGE AND JMFC VIJAYAPURA AS PER
ANNEXURE-H. B) ISSUE ANY OTHER ORDER DEEMED FIT IN
FACTS AND CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
1. The petitioner is before this Court under Article
227 of the Constitution of India, seeking for the following
relief:
(a) A writ of certiorari or any other order or
writ of the like nature and set-aside the impugned
order dated 10.12.2025 on I.A.No.2 in
E.P.No.277/2021 on the file of the IIIrd Addl. Senior
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HC-KAR
Civil Judge and JMFC Court, Vijayapura, as per
Annexure-H, in the interest of justice;
(b) Issue any other order deemed fit in facts
and circumstances of the case;
2. Heard the learned counsel for the petitioner.
3. Learned counsel for the petitioner submits that, the
final decree has been drawn taking into account the
Commissioner's Report which was submitted prior to the
Judgment of the Hon'ble Supreme Court in the case of Vineeta
Sharma Vs. Rakesh Sharma and others, reported in
(2020) 9 SCC 1. He submits that, after the Judgment in the
case of Prakash and others Vs. Phulavati and others, by
the Hon'ble Supreme Court reported in (2016) 2 SCC 36, a
second Commissioner's report was filed and the preliminary
decree was modified, but the final decree was passed taking
into consideration the first Commissioner's report. In the
execution proceedings though the aforesaid aspect was brought
to the notice of the Executing Court, the order impugned has
been passed issuing possession warrant in terms of the final
decree passed in FDP No.11/2014, which is a void decree.
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HC-KAR
4. Perusal of the material on record would go to show
that, after a preliminary decree was passed in
O.S.No.207/2012, in the final decree proceedings, the ADLR
was appointed as a Court Commissioner and he had submitted
a report dated 29.11.2016 in terms of the preliminary decree.
In view of the change of law as per the Judgment of Prakash
and others Vs. Phulavati (supra), the Commissioner was
directed to file a fresh report and accordingly, a second report
was filed and based on the same, the preliminary decree was
modified. However, in the final decree proceedings, the first
Commissioner's report was allegedly taken into consideration
and a final decree was passed based on the first
Commissioner's report. If that is so, it was for the parties to file
necessary application seeking review or modification of the final
decree passed in FDP No.11/2014. The Executing Court cannot
go beyond a decree and therefore, the Executing Court was
justified in rejecting I.A.No.2 filed by the Petitioner under
Section 151 of CPC.
5. At this juncture, learned counsel for the petitioner
submits that, liberty may be granted to the petitioner to file
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HC-KAR
necessary application before the concerned Court, either to
review/modify the final decree passed in FDP No.11/2014 or to
file a Regular Appeal as provided under Section 97 of CPC.,
6. The said submission is placed on record.
7. Accordingly, the following:
ORDER
(i) The writ petition is disposed of with
liberty to the petitioner as aforesaid, if the same is
permissible under law.
(ii) The petitioner is granted 15 days time
from today to initiate appropriate proceeding as
aforesaid and till then, the Executing Court shall not
Execute the possession warrant.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SVH
List No.: 1 Sl No.: 20
CT:PK
