IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.57588/2018 (GM-CPC) BETWEEN SRI A N NARAYNAPPA @ A N NARAYANASWAMY, S/O LATE NANJAPPA, AGED ABOUT 65 YEARS, R/O AREHALLI VILLAGE, NELAVAGILU POST-562122, NANDAGUDI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DIST. ... PETITIONER (BY SRI NAVEEN J N, ADVOCATE) AND 1. SRI BYRAPPA, S/O LATE NANJAPPA, AGED ABOUT 68 YEARS, 2. SRI A N KRISHNAPPA, S/O LATE NANJAPPA, AGED ABOUT 58 YEARS, 3. SRI CHANDRAPPA, S/O LATE NANJAPPA, AGED ABOUT 50 YEARS, ALL ARE RESIDENTS OF AREHALLI VILLAGE, NELAVAGILU POST-562122, NANDAGUDI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DIST. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA CALL FOR THE RECORDS IN O.S.NO.211/2000 AND FDP 06/2015 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, HOSKOTE (JR DIVISION) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the second respondent in a FDP No.6/2017 arising from a judgment & decree in o.S.No.211/2000 for partition & separate possession of the property is knocking at the doors of Writ Court for assailing the order dated 07.07.2018, a copy whereof is at Annexure-A, whereby the learned Principal Civil Judge, Hodakote has rejected his application filed under order XXVI Rule 9 of CPC, 1908 whereunder a request for appointment of Commissioner is made.
2. Having heard the learned counsel for the petitioner and having perused the writ petition papers, this Court declines to interfere in the matter because:
a) admittedly, the decree for partition & separate possession was granted in favour of the plaintiff to the extent of his 1/4th share in the schedule properties; and, b) the partition suit having not been contested, inter alia, by the petitioner who had not filed any Counter Claim or Written Statement, there is no decree in his favour and thus, the question of appointing the Court Commissioner for partitioning the property will not arise at all.
In the above circumstances, the writ petition being devoid of merits, stands disposed off without granting indulgence.
However, the observations in the impugned order shall come in the way of petitioner maintaining a separate suit for partition in accordance with law.
Sd/- JUDGE cbc