IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28^TH DAY OF OCTOBER 2021

BEFORE

THE HON9BLE MR. JUSTICE B. M. SHYAM PRASAD

WRIT PETITION NO.7800/2019 (GM-CPC)

BETWEEN :

C.PADMA

D/O LALITHAMMA

SINCE DECEASED BY HER LRS:

1.

SHARADA

W/O SRIKANTH

AGED ABOUT 43 YEARS

R/O DOOR NO.1508, CHICKKAPET

CHITRADURGA - 577 501

NOW RESIDING AT NO.56

20 "A" MAIN, I BLOCK

RAJAJINAGAR

BENGALURU-560 010

2.

JAHNAVI DIXIT

D/O SEETHAMMA

AGED ABOUT 41 YEARS

R/O DOOR NO.1508, CHICKKAPET

CHITRADURGA - 577 501

NOW RESIDING AT NO.56

20 "A" MAIN, I BLOCK

RAJAJINAGAR

BENGALURU-560 010

... PETITIONERS

(BY SRI JAYAPRAKASH B.V, ADVOCATE)

2

AND:

1.

H. THIPPESWAMY

FATHER'S NAME NOT KNOWN TO PETITIONERS

AGED ABOUT 76 YEARS

RETD. KSRTC DRIVER

R/O. C.K.PURA BADAVANE

NEAR MARUTHI FLOOR MILL

KELAGOTE

CHITRADURGA - 577 501

2.

RADHA

W/O LATE UMESH T.S.

AGED ABOUT 44 YEARS

HOUSEWIFE, R/O. 5TH BLOCK, KELAGOTE

NEAR MARUTHI FLOOR MILL

CHENNAKESHAPURA EXTENSION

CHITRADURGA - 577 501

... RESPONDENTS

(BY SMT. RAJESHWARI.M, ADV. FOR R2;

PETITION AS AGAINST R1 STAND ABATED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OR

SET ASIDE ANNEXURE-H, THE ORDER DTD 27.07.2018 IN

EXECUTION CASE NO.82/2012 ON THE FILE OF THE

I

ADDITIONAL,

CIVIL

JUDGE

AND

J.M.F.C.

AT

CHITRADURGA AND ETC.,

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE

FOLLOWING:

3

O R D E R

The petitioners, who are the decree holders in

Execution

Case

No.82/2012

on the

file of

the

I Additional Civil Judge (Jr. Dn.) and J.M.F.C.,

Chitradurga (for short, 'the executing Court), have

impugned

the

executing

Court's

order

dated

27.07.2018. The executing Court by this impugned

order has allowed the second respondent's application

under Order XXVI Rule 9 read with Section 151 of CPC

appointing the Civil Engineer (CMC), Chitradurga as

Court Commissioner to make a local inspection and

identify site Nos.172 and 173 formed in R.S. Nos. 104,

105 and 106 of Kelagote village, Jogimatti Road,

Chitradurga.

2.

The petitioners have succeeded in their suit

in O.S.No.215/1997 for declaration of title and recovery

of possession with mandatory injunction against the

first respondent as regards property identified as vacant

4

site bearing No. 172 formed in Sy.Nos.104, 105 and 106

of Kelagote village, Jogimatti Road, Chitradurga city,

Khatha No.4043, Assessment No.11402 measuring

20 ft. X 30 ft. The petitioners' suit is initially dismissed

by the original Court, but in the appeal against such

judgment and decree in R.A. No.80/2002 on the file of

the Civil Judge (Sr.Dn.), Chitradurga the suit is decreed.

The petitioners have filed the present Execution Case in

No.82/2012 to put the decree in execution.

3.

The second respondent has filed Objector's

application under Order XXI Rule 58(1) and (5) read

with Section 151 of CPC asserting that CMC has

allotted site No.173 in R.S.Nos. 104, 105, 106 of

Kelagote

village,

Chitradurga

to

her

vendor,

Sri. Umakantha, who, because of interference by the

first respondent, has filed suit in O.S.No.261/1997 for

declaration and injunction. This suit is decreed, and

the first respondent9s appeal impugning such decree is

5

dismissed on 16.06.2015. She has been in possession

of the property bearing No.173 in R.S.Nos. 104, 105,

106 of Kelagote village, Chitradurga. The petitioners and

the first respondent have colluded with each other and

have filed the suit. She had no knowledge of the

proceedings between the petitioners and the first

respondent.

4.

The second respondent, in aid of her

objector9s application under Order XXI Rule 58(1) and

(5) read with Section 151 of CPC, has filed application

under Order XXVI Rule 9 of CPC for appointment of a

Court Commissioner to visit the properties and point

out the location as claimed by her and the pet