Allowed

Shri.Krishna S/O Mahabaleshwar Bhat v. Shri.Vasant S/O Sadashiv Brahme

Karnataka HC16 Jan 2020WP/109483/2019

Case brief

AI extract

What is this about?

Petitioners filed a writ petition under Articles 226 and 227 challenging an order by the Trial Court that rejected their application to cross-examine Court Commissioners. The Court held that due to discrepancies in reports by different commissioners, the judgment debtors were entitled to cross-examine the commissioners and allowed the application under Section 151 of CPC.

What did the court decide?

Impugned order denying cross-examination was set aside; IA No.6 under Section 151 CPC allowed; petitioners permitted to cross-examine Court Commissioners.

Shri.Krishna S/O Mahabaleshwar Bhat Vs… — Execution and Attachment | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF JANUARY, 2020

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BEFORE

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THE HON’BLE MR.JUSTICE S.G. PANDIT WRIT PETITION NO.109483/2019 (GM-CPC)

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BETWEEN:

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SHRI. KRISHNA S/O MAHABALESHWAR BHAT AGE:60 YEARS, OCC:BUSINESS, R/O “SWAYAMBHU NIVAS”, 2^ND MAIN, 5^TH CROSS, SADASHIV NAGAR, BELAGAVI.

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SOU PANKAJA W/O KRISHNA BHAT AGE:54 YEARS, OCC:HOUSEHOLD WORK, R/O “SWAYAMBHU NIVAS, 2^ND MAIN, 5^TH CROSS, SADASHIV NAGAR, BELAGAVI.

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SHRI VINAYAK KRISHNA BHAT AGE:35 YEARS, OCC:HOUSEHOLD WORK, R/O SWAYAMBHU NIVAS, 2^ND MAIN, 5^TH MAIN CROSS, SADASHIV NAGAR, BELAGAVI.

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... PETITIONERS (BY SRI. SANGAM S KULKARNI, ADVOCATE)

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AND

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SHRI VASANT S/O SADASHIV BRAHME AGE:83 YEARS, OCC:PENSIONER, R/O HOUSE NO.3468, 2^ND FLOOR, DR. MANJAREKAR HOSPITAL, SAMADEVI GALLI, BELAGAVI.

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... RESPONDENT

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(BY SRI. JAGADISH PATIL, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER

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DATED 1.4.2019 PASSD BY THE TRIAL COURT 1^ST ADDL. SENIOR CIVL JUDGE AND CJM, BELAGAVI ON IA NO.6 IN EP NO.116/2015 VIDE ANNEXURE-L.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners who are the judgment debtors 1 to 3 in EP No.116/2015 are before this Court under Article 227 of the Constitution of India aggrieved by the order dated 1.4.2019 on IA No.6 on the file of the 1^st Addl. Senior Civil Judge and CJM, Belagavi by which the petitioners’ request for cross-examination of the Court Commissioners is rejected.

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Heard the learned counsel for the petitioners/judgment debtors 1 to 3 and learned counsel for the respondent/decree holder.

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The respondent filed EP No.116/2015 to execute the judgment and decree dated 15.11.2011 in RFA No.3063/2009 C/W RFA No.3002/2010.

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Learned counsel for the petitioners would

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submit that the judgment debtors 1 to 3 filed IA No.6 seeking permission of the Court to cross-examine the Court Commissioners. It is stated that the judgment debtors 1 to 3/petitioners filed their objections to the Commissioner’s report. IA No.6 in question was filed to cross-examine the Court Commissioners by the Judgment Debtors 1 to 3/petitioners. He further submitted that the Court Commissioner submitted his report stating that an area of 444.91 sq.ft. is available in the second floor. It is further submitted that, earlier Court Commissioner in the present execution petition had submitted his report stating that 728.55 sq.ft. is available in the second floor. As there is discrepancy in two Commissioners’ report, the judgment debtors 1 to 3/petitioners intend to cross-examine the present Court Commissioner who submitted his report on 30.08.2018.

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Per contra, learned counsel for the respondent/decree holder would submit that the decree

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is of the year 2011 and suit is of the year 2006, even till today, fruits of the decree could not be enjoyed by the decree holder. He further submits that the present application is filed only to drag on the proceedings. Hence, he prays for dismissal of the writ petition.

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Having heard the learned counsels for the parties and on perusal of the material on record, I am of the view that the petition deserves to be allowed and the Judgment Debtors 1 to 3 are to be given an opportunity to cross-examine the Court Commissioners by name Ammensaheb A Shaikh, Engineer and Sri. Vivek G Kulkarni, Advocate. It is pertinent to mention here itself that the Court had appointed the Commissioners consisting of an Engineer and an Advocate.

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Order XXVI Rule 10 (2) of CPC provides that when the Court Commissioner’s report form part of the record, parties to the suit with the permission of the Court could examine or cross-examine the concerned Commissioner. In the instant case, admittedly, the

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Commissioner has submitted his report on 31.08.2018. Objections are said to have been filed by the judgment debtors 1 to 3/petitioners.

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In the light of the above provision and in the

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light of the fact that different Court Commissioners have given different measurements, the petitioners/judgment debtors 1 to 3 ought to have been given an opportunity to examine/cross-examine the Court Commissioners. Hence, the impugned order dated 1.4.2019 passed on IA No.6 insofar as it denies cross-examination of the Commissioner by the I Addl. Senior Civil Judge and CJM, Belagavi is set-aside. IA No.6 filed under Section 151 of CPC is allowed. The petitioners/judgment debtors 1 to 3 are permitted to examine/cross-examine the Court Commissioners. In all other respects, the order remains intact.

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petitioners/judgment debtors 1 to 3 undertakes to complete the cross-examination of the Court

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Commissioners within one or two hearings and undertakes not to drag on the proceedings. Said submission is taken on record.

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With the above observations, the writ petition stands disposed of.

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Sd/JUDGE

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JTR

Shri.Krishna S/O Mahabaleshwar Bhat v. Shri.Vasant S/O Sadashiv Brahme

Case brief

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Shri.Krishna S/O Mahabaleshwar Bhat v. Shri.Vasant S/O Sadashiv Brahme

Case brief

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