Allowed

Sri D v. Venkataramu v Sri Ayaz

Karnataka HC20 Feb 2024WP/18786/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 226 CPC, the High Court of Karnataka allowed the petitioner's challenge to the trial court's appointment of a CMC Engineer as Court Commissioner. The Court quashed the appointment due to lack of reasons and ordered the Taluka Surveyor to be appointed instead.

What did the court decide?

The order dated 23.03.2018 is modified and the Taluka Surveyor is appointed as Court Commissioner.

Sri D v Venkataramu Vs Sri Ayaz — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:7068 WP No. 18786 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 18786 OF 2018 (GM-CPC)

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BETWEEN:

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SRI D V VENKATARAMU

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S/O GOPALAIAH D V AGED ABOUT 49 YEARS

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R/AT KANDAVARABAGILU WARD NO.16, CHIKKABALLAPUR CHIKKABALLAPUR DISTRICT PIN CODE - 562 101

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…PETITIONER

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(BY SRI. SANDESH P NADIGAR FOR G BALAKRISHNA SHASTRY

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.,ADVOCATES)

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AND:

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SRI AYAZ

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S/O SANAULLA

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Digitally signed by PAVITHRA N Location: High Court of Karnataka

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AGED ABOUT 44 YEARS R/AT FORT, WARD NO.17, ANJUMAN STREET 2ND CROSS CHIKKABALLAPUR TALUK & DIST CHIKKABALLAPUR PIN CODE - 562 101

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…RESPONDENT

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(BY SRI. SHAILA SHREE.,ADVOCATE-ABSENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 O THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.03.2018 IN O.S.NO.722/2014 PASSED BY THE 2ND ADDL. CIVIL JUDGE AND JMGC CHIKBALLAPURA PRODUCED AT ANNEXURE-A AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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NC: 2024:KHC:7068 WP No. 18786 of 2018

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ORDER

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The plaintiff in OS No.722 of 2014 on the file of the learned II Additional Civil Judge and JMFC, Chikkaballapura, is seeking grant of writ of certiorari to quash the order dated 23.03.2018, allowing the application filed by the respondent under Order 26 Rule 9 read with Section 151 of CPC and appointing CMC Engineer as Court Commissioner.

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Heard Sri. Sandesh P Nadigar, learned counsel for the petitioner. Learned counsel for the respondent remained absent and has not addressed the argument in spite of giving sufficient opportunity. Hence, her arguments is taken as NIL. Perused the materials on record.

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3 Learned counsel for the petitioner contended that

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the suit was initially filed for permanent injunction and during the pendancy of suit, defendant encroached over a portion of the property and therefore, the possession of the property was claimed. The defendant filed the application for appointment of

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the Court Commissioner. Initially, the said application was allowed and the Taluka Surveyor was appointed as Court Commissioner. The plaintiff had no objection for the Taluka

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NC: 2024:KHC:7068 WP No. 18786 of 2018

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Surveyor to be appointed as Court Commissioner. But later the order was modified appointing the CMC Engineer as Court Commissioner, for which the plaintiff has preferred this writ petition. Accordingly, he prays for allowing the petition.

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The only contention raised by the learned counsel for the petitioner is that initially, the Court had allowed the application filed by the respondent and appointed the Taluka Surveyor as Court Commissioner. The plaintiff has no objection for Taluka Surveyor to be appointed as Court Commissioner for the purpose of executing the warrant. The Trial court after modifying the order appointed CMC Engineer as Court Commissioner, for which, the plaintiff has raised objections. The certified copy of the order of Trial Court, which is impugned herein discloses that, after passing the order, some modification is made, wherein, CMC Engineer was appointed as Court Commissioner by deleting the appointment of Taluka Surveyor as Court Commissioner.

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I do not find any reason assigned by the Trial Court for appointing the CMC Engineer as Court Commissioner instead of Taluka Surveyor. Therefore, I am of the opinion that

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NC: 2024:KHC:7068 WP No. 18786 of 2018

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the contention of the petitioner in that regard could be accepted by allowing the petition. No prejudice would be caused to the respondent, if Taluka Surveyor executes the warrant.

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Hence, 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) The order dated 23.03.2018 passed in OS No.722 of

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2014 on the file of learned II Additional Civil Judge and JMFC, Chikkaballapura, is modified.

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(iii) The Taluka Surveyor is appointed as Court

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Commissioner to execute the commission warrant.

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Sd/JUDGE

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SPV List No.: 1 Sl No.: 4

Sri D v. Venkataramu v Sri Ayaz

Case brief

What is this about?

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Sri D v. Venkataramu v Sri Ayaz

Case brief

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