DATED

08.12.2021 IN FINAL DECREE PROCEEDINGS NO.12/2019

PASSED BY THE CIVIL JUDGE AND JMFC AT JAGALURU IN

DAVANGERE DISTRICT ANNEXURE-G AND ETC.,

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The captioned writ petition is filed questioning

the order of the FDP Court, wherein the Court

Commissioner is appointed to submit feasibility of

partition. The said order is under challenge.

2. The learned counsel appearing for the

petitioner would contend that the preliminary decree

passed in O.S.No.33/2013 is challenged by the

present petitioner herein in RA No.12/2020. He would

submit that since there is a delay in filing the appeal,

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the Appellate Court is not granting any interim relief

to the petitioner herein and therefore, he seeks some

protection and stay the proceedings pending in

FDP No.12/2019.

3. If the petitioner has already challenged the

preliminary decree granting share to the plaintiff by

way of an appeal under Section 96 of CPC., all

possible recourses are available to the petitioner in an

pending Regular Appeal.

4. It is a trite law that an appeal under Section

96 is a statutory right and the Appellate Court being

the final fact finding authority has to examine the

disputed question of facts and question of law, if any

involved. When the petitioner has efficacious remedy

in the pending appeal, he is not entitled for any relief

under Article 227 of the Constitution of India on the

premise that the appeal is pending before the

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Appellate Court and he is unable to secure any interim

orders at the hands of the Appellate Court. That

cannot be a ground to interfere with the orders of the

FDP

Court,

which

has

appointed

the

Court

Commissioner to work out the feasibility of partition.

If preliminary decree is not stayed by the Appellate

Court, it is well within the jurisdiction of the FDP Court

in the FDP proceedings to give effect to the

preliminary decree passed in O.S. No.33/2013.

In that view of the matter, the writ petition is

dismissed.

Sd/-

JUDGE

NBM