SRI INAYATHULLA KHAN v. SMT ZAHIDA KHANUM

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"a) Call for entire records in F.D.P. No.8/2007 on the file of 1^st Addl. Civil Judge (Jr. Dvn.) at Tumakuru.

b) Issue writ of certiorari and such other writ, direction to quash the impugned order on I.A. under Order 26 Rule 13 r/w Section 151 of the CPC dated 04.01.2024 in F.D.P No.8/2007 on the file of 1^st Addl. Civil Judge (Jr.Dvn.) at Tumakuru, at Annexure-E consequently dismiss the application filed by the R-5.

c) Pass such other order/s as this Hon'ble Court deems fit and proper in the circumstances of the case."

2. This petition by the respondent No.1(b) in F.D. P. No.8/2007 is directed against the impugned order dated 04.01.2024 passed by the I Additional Civil Judge (Jr. Dn.) at Tumakuru whereby the application filed by respondent No.5 in the final decree proceedings under Order 26 Rule 13 read with Section 54 of CPC for appointment of a Court Commissioner for demarcating suit schedule properties in terms of the preliminary decree passed in O.S. No.715/2019 was allowed by the trial Court.

3. Heard Sri.Ravi Shankar K., learned counsel for the petitioner and perused the material on record.

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4. The material on record discloses that respondent No.1 has instituted the aforesaid final decree proceedings to enforce and implement the preliminary decree passed in O.S. No.715/2019. In the said final decree proceedings, the application filed by respondent No.5 seeking appointment of a Court Commissioner was allowed by the impugned order which is assailed in the present petition.

5. While passing the impugned order, the trial Court looked into account that the aforesaid preliminary decree has attained finality and became conclusive and binding upon the parties and consequently, there was no impediment for appointment of a Court Commissioner as sought for by respondent No.5. Under these circumstances, the application filed by respondent No.5 was allowed by the trial Court by passing the impugned order as under:

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"I.A filed by the respondent No.5 U/o.26 R-13 of C.P.C. R/w Sec.54 of C.P.C, dated 14-03-2023 is hereby allowed.

Consequently, the ADLR, Tumakuru and Chief Engineer of PWD, Department, Tumakuru, both are directed to measure and demarcate 1/ 9th share in the suit schedule properties, pertaining to sons of late Abdul Wahub Khan.

Consequently, the ADLR, Tumakuru and Chief Engineer of PWD, Department, Tumakuru, both are directed to measure and demarcate 1/6th share in the suit schedule properties, pertaining to daughters of late Abdul Wahub Khan.

Consequently, the Court Commissioner fee is fixed at Rs.3000/- each to be paid by the parties to the petition.

Issue summons to Court Commissioner, the ADLR, Tumakuru and Civil Engineer, P.W.D Department, Tumakuru, if PF paid.

Returnable by: 17-01-2024.

6. In my considered opinion, the impugned order passed by the trial Court cannot be said to occasion failure of justice warranting interference by this Court in exercise

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of jurisdiction under Article 227 of the Constitution of India as held in the case of Radhey Shyam and Another V/s. Chhabi Nath and Others reported in (2015)5 SCC 423. Accordingly, I do not find any merit. Petition is hereby

dismissed. Liberty is however reserved in favour of all the parties to participate in the Commission proceedings/work and file their respective memos of instructions and also objections to the Commissioner report and examine/cross- examine him, if they so desire.

Sd/-

JUDGE

VBS

List No.: 1 Sl No.: 23