IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 14548 OF 2019 (GM-CPC)

BETWEEN:

SRI HANUMAPPA S/O LATE VENKATASHAMI AGED ABOUT 62 YEARS AGRICULTURIST, R/AT THIMMANAYAKANAHALLI VILLAGE KASABA HOBLI MALUR TALUK - 563 130.

REPRESENTED BY GPA HOLDER SRI SRIRAMAPPA S/O HANUMAPPA AGED ABOUT 35 YEARS R/AT THIMMANAYAKANAHALLI VILLAGE, KASABA HOBLI MALUR TALUK - 563 130.

…PETITIONER Digitally (BY SRI PRASHANTH P.N, ADV.)

signed by NANDINI M S AND:

Location:

HIGH COURT OF SRI KEMPAIAH KARNATAKA S/O MUNISHAMAPPA AGED ABOUT 75 YEARS R/AT THIMMANAYAKANAHLLI VILLAGE, KASABA HOBLI MALUR TALUK - 563 130.

…RESPONDENT (BY SRI Y. NAGARAJ, ADV., FOR SRI C. SHANKAR REDDY, ADV.,)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD23.1.2019 PASSED BY THE HON'BLE II ADDL CIVIL JUDGE AND JMFC, MALUR IN IA IN EX.NO.52/2014 FILLED UNDER ORDER XXVI RULE 9 REAS WITH SECTION 151 OF CIVIL PROCEDURE CODE REJECTING THE PRAYER OF PETITIONER/DHR SEEKING FOR AN APPOINTMENT OF COURT COMMISSIONER i.e. TALUK SURVEYOR, MALUR TALUK, MALUR TO DEMARCATE WITH MESURMENTS OF SUIT SCHEDULE PROPERTY AND TO PREPARE A SKETCH AS PER THE DESCRIPTION OF THE PROPERTY AND ALSO NOTE DOWN THE MEASUREMENT OF ENCROACHMENT IF ANY MADE BY THE JUDGMENT DEBTOR AND TO SUBMIT A REPORT WITH TOPOGRAPHY OF THE ENTIRE AREA WITH SKETCH BY ISSUING WRIT OF CERTIORARI AS THE IMPUGNED ORDER BEING PERVERSE, CAPRICIOUS, ARBITRARY AND BIASED FOR BEING PASSED WITHOUT PORPER JUDICIAL REASONING VIDE ANNEXURE-A.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

1. This writ petition under Article 227 of the Constitution of India is filed by the decree holder with the prayer to set aside the order dated 23.01.2019 passed on an application filed under Order XXVI Rule 9 read with Section 151 of CPC in Execution No.52/2014, passed by the Court of II Addl. Civil Judge & JMFC, Malur.

2. Heard the learned Counsel by the parties.

3. Petitioner herein had filed O.S.No.254/2009 before the jurisdictional Civil Court seeking a decree of permanent injunction in respect of property bearing Sy.No.25 measuring 1 acre 35 guntas situated at Kasaba Hobli, Gaddamsonnahalli Village, Malur Taluk. The said suit was decreed on 06.10.2012. Alleging violation of the decree of permanent injunction passed in O.S.No.254/2009 decree holder has filed Execution No.52/2014 before the Trial Court and in the said proceedings, an application under Order XXVI Rule 9 read with Section 151 of CPC was filed to appoint the Taluk Surveyor as Court Commissioner to measure and demarcate the suit schedule property and to prepare a sketch. The said application was opposed by the judgment-debtor, and the Trial Court vide the order impugned, has rejected the application and being aggrieved by the same, decree holder is before this Court.

4. Learned Counsel for the petitioner submits that the judgment and decree passed in O.S.No.254/2009 has attained finality. Towards the eastern side of the suit schedule property in O.S.No.254/2009, the property belonging to the defendant/judgment-debtor in Sy.No.29 measuring 2 acres 6 guntas is situated. In respect of the said property, a separate suit was filed in O.S.No.409/2009 by the defendant and even the said suit has been decreed and a permanent injunction has been granted in respect of the property bearing Sy.No.29 in favour of the plaintiffs in O.S.No.409/2009. He submits that the judgment debtor in O.S.No.254/2009 is plaintiff no.1 in O.S.No.409/2009. He has encroached a portion of the property in Sy.No.25 and it is under these circumstances, execution case was filed. He submits that to find out the encroachment, the appointment of Court Commissioner becomes necessary.

Accordingly, he prays to allow the petition.

5. Per contra, learned Counsel for the resp