Allowed

Jude S/O George Fernandes v. Martin George Fernandes

Karnataka HC11 Jul 2023WP/104157/2023

Case brief

AI extract

What is this about?

In a partition suit execution proceeding, the High Court of Karnataka directed the trial Court to consider the petitioner's objections to the Commissioner's report pending for nearly five months and pass appropriate orders within three months before proceeding further.

What did the court decide?

Direction issued to the learned trial Judge in FDP No.3/2022 to pass appropriate orders on the petitioner's objections to the Commissioner's report within three months.

Jude S/O George Fernandes Vs Martin George Fernandes — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 104157 OF 2023 (GM-CPC)

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BETWEEN:

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JUDE S/O. GEORGE FERNANDES, AGE: 46 YEARS, OCC: TECHNICIAN, R/O. NEAR FOREST NAKA, BAAD, BHANDISHITTA, POST: SHEJWAD, TQ: KARWAR, DIST: UTTARA KANNADA-581306.

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…PETITIONER

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(BY SRI SOURABH A. SONDUR, ADVOCATE FOR SRI K.L. PATIL, AND SRI S.S. BETURMATH, ADVOCATES)

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AND:

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: High Court of Karnataka, Dharwad

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MARTIN GEORGE FERNANDES, S/O. GEORGE MARTIN FERNANDES, AGE: 47 YEARS, OCC: TECHNICIAN, R/O. NEAR FOREST NAKA, BAAD, BHANDISHITTA, POST: SHEJWAD,

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TQ: KARWAR, DIST: UTTARA KANNADA-581306.

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ROMAN D/O. GEORGE FERNANDIES @ W/O. TITUS LEWIS, AGE: 58 YEARS, OCC: TEACHER, R/O. NEAR KODIBEER TEMPLE, KARWAR, DIST: UTTAR KANNADA-581306.

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REEZA GEORGE FERNANDIES @ W/O. FREDDY FURTADO, AGE: 55 YEARS, OCC: TEACHER, R/O. ARCHANA PLAZA, KENCHA ROAD, KARWAR, DIST: UTTARA KANNADA-581306.

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…RESPONDENTS

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2 - NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE PRL.SENIOR CIVIL JUDGE AND C.J.M. IN FDP NO.3/2022 TO PASS APPROPRIATE ORDERS AFTER HEARING THE PETITIONER ON OBJECTIONS DATED 21/02/2023 FILED BY HIM VIDE ANNEXURE-E BEFORE PASSING ANY ORDER ON THE COMMISSIONER REPORT AT ANNEXURE-C COLLY, etc.,.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the petitioner who was respondent No.1 before the final decree proceedings in FDP No.3/2022 seeking for a writ of mandamus, a direction to the learned Judge of the trial Court to pass appropriate orders on the commissioner's report pursuant to the objections filed by the petitioner herein.

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I do not find the need to issue notice to respondents as no relief is sought against the respondents herein. The petitioner is only seeking an order for a direction to the learned trial Court Judge to pass orders on the commissioner's report by considering his objections to the said commissioner's report.

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3 - NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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It is contended by learned counsel for petitioner

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that in the FDP proceedings arising out of original suit in O.S.No.21/2014, commissioner was ordered to file report and accordingly ADLR was appointed as a Court commissioner by the trial Court to survey and submit the report as to the feasibility of partition which accordingly was adhered to by the Commissioner (ADLR) and on the basis of the said commissioner's report, the trial Court proceeded to appoint the Chief Engineer, PWD, as Court commissioner to submit report as to feasibility of division of house properties. Therefore two commissioners have been appointed by the Court one is the ADLR for agricultural properties and the Chief Engineer, PWD, for the residential properties.

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This being the state of affairs, an appeal came

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to be filed in R.A.No.12/2023, which came to be dismissed by the Appellate Court as not maintainable. Thereafter the petitioner has approached this Court on the ground that the commissioner's report filed by the commissioner

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4 - NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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appointed by the Court was objected to on several grounds for which the petitioner filed detailed statement of objections and contended that his objections be considered and suitable orders be passed. Despite the objections having been filed on 21.02.2023, the matter has been adjourned several times, but no orders have been passed by the trial Court and therefore in view of no orders being passed on the objections filed by the petitioners to the commissioner's report, the petitioner is aggrieved that the trial Court is proceeding further in the execution proceedings for drawing up of the final decree based on the commissioner's report for the residential properties and thereafter it would proceed for the agricultural properties as well. Hence he is before this Court seeking a writ of mandamus.

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I have heard the learned counsel for the

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petitioner.

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Apparently it is seen from records that commissioner was appointed and a report has been filed

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5 - NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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and the petitioner has filed objections to the commissioner's report. The trial Court is duty bound to consider the objections filed by the petitioner and pass suitable orders whether to accept or reject the same. But the same has not been done by the trial Court for almost five months from the date of filing of the objections by the petitioner. Therefore, I am in agreement with the learned counsel for petitioner that the trial Court is duty bound to pass orders on the objections filed by him against the commissioner's report before proceeding further in the matter. Accordingly I proceed to pass the following:

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ORDER

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i) The writ petition is allowed.

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ii) By way of writ of mandamus, a direction is issued to the learned trial Judge in FDP No.3/2022, pending on the file of Prl. Senior Civil Judge and CJM, Karwar, to pass appropriate and suitable orders on the

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6 - NC: 2023:KHC-D:7016 WP No. 104157 of 2023

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objections filed by the petitioner to the commissioner's report, within a period of three months from the date of receipt of a copy of this order and thereafter to proceed further in the matter.

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Sd/JUDGE

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MRK List No.: 1 Sl No.: 31

Jude S/O George Fernandes v. Martin George Fernandes

Case brief

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Jude S/O George Fernandes v. Martin George Fernandes

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