Challenge to an order refusing to recall a final decree in partition proceedings. The court held that once the Commissioner's report was accepted and final decree drawn without objection, the final decree court became functus officio; aggrieved parties must appeal, not seek recall. Petition dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 18541 OF 2024 (GM-CPC)
BETWEEN:
SMT. KAMALA M SHETTY AGED ABOUT 50 YEARS, W/O MARUTHI SHETTY, R/AT SAMPALLI OF ARVOKKI VILLAGE, BHATKAL TALUK, U.K. DISTRICT-581320
…PETITIONER
(BY SRI. NISHANTH S.K. ADVOCATE FOR SRI. SUYOG HERELE E., ADVOCATE)
AND:
Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA
SRI. GOPALAKRISHNA, SINCE DECEASED REP BY HIS LRS,
ALL ARE RESIDING AT ACHIMANE, NAVUNDA VILLAGE, KUNDAPURA TALUK-576224.
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.03.2024 PASSED ON MEMO IN FDP NO.15/2014 BY THE COURT OF CIVIL JUDGE AND JMFC, BAINDUR, AS PER ANNEXURE-A AND ALLOW THE MEMO FILED BY THE PETITIONER AS
PER ANNEXURE-F BY ALLOWING THIS WRIT PETITION WITH COSTS THROUGHOUT OR PASS ANY OTHER SUITABLE ORDERS UNDER THE 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 R. NATARAJ
ORAL ORDER
The petitioner has challenged an order dated 11.03.2024 passed by the Civil Judge and JMFC, Bainduru (henceforth referred to as 'final decree Court') in FDP No.15/2024 in terms of which, it refused to recall the final decree drawn but directed the parties to file a separate final decree proceedings.
NC: 2024:KHC:43938 WP No. 18541 of 2024
division as suggested, the final decree Court proceeded to accept the report of the Court Commissioner and directed a final decree to be drawn as per the report of the Court Commissioner in terms of the order dated 11.06.2019.
NC: 2024:KHC:43938 WP No. 18541 of 2024
preliminary decree. He contends that the final decree Court has noticed this and therefore, the final decree Court ought to have recalled its earlier order directing the final decree to be drawn and fresh proceedings must have been undertaken to draw final decree.
NC: 2024:KHC:43938 WP No. 18541 of 2024
dismissed .
Sd/-
(R. NATARAJ)
JUDGE
PMR List No.: 1 Sl No.: 45
1 issue framed by the court
Whether the final decree Court could recall a final decree already drawn after accepting the Commissioner's report under Section 54 CPC.
2 provisions across 2 enactments
Smt. Kamala M Shetty
Sri. Manjunatha Ganiga
Smt. Padmavathi
Sri. Gopalakrishna (since deceased, rep. by LRs)
Smt. Mala
Mr. Pradeep
R. Nataraj
As recorded by the court registry
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