IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.3313 OF 2019 (GM-CPC) BETWEEN:
SMT.R.PADMINI, W/O SRI.R.VEKATESH, HINDU, AGED 59 YEARS, RESIDING AT NO.30, “VAISHNAVI”, 1ST CROSS, KIRLOSKAR COLONY, 2ND STAGE, BASAVESHWARANAGAR, BANGALORE – 560 079. ... PETITIONER (BY SRI.H.R.ANANTHA KRISHNA MURTHY, ADVOCATE) AND:
1. SRI.RAMANNA, AGED 85 YEARS, 2. SRI.MUNISWAMY, AGED 70 YEARS, 3. SRI.DODDAYELLAPPA, AGED 82 YEARS, 4. SRI.CHIKAYELLAPPA, AGED 80 YEARS, RESPONDENTS ARE SONS OF ANDERI THAYAPPA, HINDUS, MAJORS, RESIDING AT NO.1, 16TH MAIN ROAD, HAL 2ND STAGE, INDIRANAGAR, BANGALORE – 560 038. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:24.11.2018 PASSED BY THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU [CCH NO.16] IN EXECUTION NO.2215/2006 PRODUCED VIDE ANNEXURE-G ON IA NO.12 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the decree holder in Execution No.2215/2006 is invoking the writ jurisdiction of this Court for assailing the order dated 24.11.2018 whereby his application in IA No.12 filed under Order XXVI Rule 9 read with Section 151 of CPC, 1908 for appointment of Court Commissioner.
2. Learned counsel for the petitioner argues that the Court below ought to have allowed the subject application and appointed a Court Commissioner inasmuch as, there was dispute as to the true position of the subject property inasmuch as, Judgment Debtors have demolished the existing structure and have blocked the road; this having not been done, there is error apparent on the face of the record.
3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to interfere in the matter because:
a) the facts which the petitioner wants to ascertain with the assistance of Court Commissioner do not fall within the conspectus of Order XXVI Rule 9 of CPC as rightly observed by the Court below at paragraph No.10 of the impugned judgment; and b) the Apex Court in the case of Lekh Raj Vs. Muni Lal and Others, AIR 2001 SC 996, has observed that a local Commissioner can only report on the existing facts and he cannot say as to how those facts come into being; the prayer for appointment of the Commissioner therefore is rightly rejected by invoking the ratio of the said decision.
In the above circumstances, this writ petition being devoid of merits, stands rejected in limine.
The observations made hereinabove will not come in the way of petitioner establishing his case, otherwise.
cbc Sd/- JUDGE