- 1 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 18121 OF 2025 (GM-CPC) BETWEEN: MR.GANGADHAR S/O NANJEGOWDA AGED 74 YEARS NO.289, MUNESHWARA BLOCK, NAGAPPA STREET 3RD CROSS, PALACE GUTTAHALLI, BENGALURU – 560 003. …PETITIONER (BY SRI N. SUKUMAR JAIN, ADVOCATE) AND: SMT.GANGALAKSHMAMMA W/O SIDDALINGAIAH, AGED 77 YEARS NO.27, 3RD A CROSS, NAGAPPA STREET, MUNESHWARA BLOCK, PALACE GUTTAHALLI BENGALURU – 560 003. …RESPONDENT (BY SRI S.B. MUKKANNAPPA, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ORDER DATED 07.02.2024 PASSED ON IA UNDER Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 ORDER 26 RULE 13 AND 14 OF CPC MARKED AS ANNEXURE -G AND CONSEQUENTLY QUASHING THE ORDER DATED 02.06.2025 PASSED ON IA FILED UNDER SEC. 151 OF CPC IN FDP NO. 75/2011 MARKED AS ANNEXURE -K ON THE FILE OF THE LXXV ADDITIONAL CITY CIVIL AND SESSION JUDGE BENGALURU (CCH NO. 76). THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner – defendant No.2 / respondent No.2 in the final decree proceedings is before this Court calling in question an order dated 07.02.2024 by which the application seeking appointment of Court Commissioner comes to be allowed and another order dated 02.06.2025, passed on an application seeking stay of all further proceedings of the Court Commissioner and modification of the preliminary decree. 2. Heard Sri N. Sukumar Jain, learned counsel for petitioner and Sri S.B.Mukkannappa, learned counsel for respondent. - 3 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 3. Facts in brief, germane, are as follows: A suit in O.S.No.5070/2000 is filed seeking partition and separate possession. The said suit comes to be decreed in terms of the judgment and decree dated 17.06.2010, declaring that the respondent – plaintiff would be entitled to 1/3rd share in all the suit scheduled properties and separate enquiry to be held under Order XX Rule 12 of the CPC to ascertain mesne profits. Pursuant to the judgment and decree, the respondent institutes final decree proceedings in F.D.P.No.75/2011. In the final decree proceedings, an application is filed under Order XXVI Rules 13 and 14 r/w. Section 151 of the CPC, to conduct an enquiry regarding the income derived out of the suit scheduled properties and fix the income by securing a report from the hands of the Court Commissioner. The said application is preferred by the respondent - plaintiff in whose favour the judgment and decree as noted hereinabove was drawn. The petitioner files objections to the said application contending that the application was not maintainable. Notwithstanding the objections, the application comes to be allowed by the following order: - 4 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 “REASONS POINT NO.1: I have gone through the contents of the application and objection statement. The application filed by the petitioner to appoint the Court Commissioner to conduct the enquiry regarding the income derived out of the schedule properties. Admittedly, the suit is filed in O.S.No.5070/2000 seeking for partition as against the respondent which was decreed on 17.06.2010 declaring the plaintiff viz., Gangalakshmamma is entitled for 1/3rd share in the schedule property. In the meantime the respondent No.1 Thimmajamma who is the mother of the petitioner and respondent No.1 died. Hence, the legal heirs of the respondent No.1 being the petitioner and respondent NO.2 - Gangadhara has got half share in the petition schedule property. To know how much income is derived out of schedule properties to be calculated and which cannot be calculated without appointing Court Commissioner and as per the judgement the petitioner has 1/3rd share in the petition schedule property and also with the income derived from the petition schedule property. Hence, it is very essential to appoint a Court Commissioner to visit the spot and make enquiry as may be necessary and divide the income derived from the petition schedule property and equalise the same between petitioner and respondent No.2 and he has to prepare the report. If the application is allowed, it will not prejudice the case of the respondent No.2, but it will clarify how much income derived and to be divided between two brothers and prepare the account and produce the same. Accordingly. I answer the above point in the AFFIRMATIVE. POINT NO.2: In view of my findings on the above points, I proceed to pass the following: - 5 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 ORDER The application filed by the petitioner under Order 26 Rule 13 & 14 R/w 151 of C.P.C. is hereby allowed. Further Commissioner has to visit the petition schedule property and conduct the enquiry of income derived from the petition schedule property since from filing of the suit and produce the accounts of the same with making division between two parties and produce the report. To file the memo of instruction and to suggest the name of the Commissioner and to pay the Commissioner's fees. Call on 05.03.2024.” (Emphasis added) In terms of the afore-quoted order, a Commissioner comes to be appointed to visit the suit schedule properties and conduct an enquiry to determine the income that has derived from the date of the filing of the suit. 4. The petitioner then files an application seeking stay of the order dated 07.02.2024, appointing the Commissioner. Objections are filed and the concerned Court rejects the said application by the following order: - 6 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 “REASONS 7. POINT NO.1: On perusal of the accompanying affidavit, objections and entire materials on record, the respondent No.2 has contended that, without passing the order of modifying the judgment, the direction going to be issued to the commissioner to divide the property into two shares by virtue of death of 1st respondent as per preliminary decree, is not proper. The petitioner has contended that, the application is filed to protract proceedings by the respondent No.2. 8. On perusal of materials on record, the petitioner has filed this petition to draw final decree, in pursuant to the judgment and decree passed in O.S.No.5070/2000 by the I Addl. City Civil and Sessions Judge, Bengaluru. This matter is oldest matter. Looking to nature of this petition, facts and circumstances of this petition, the respondent No.2 has not made out any reasonable grounds to allow application. Hence, I answer Point No.1 in the Negative. 9. POINT NO.2: In view of the foregoing reasons, I proceed to pass the following: ORDER I.A./Application filed U/Sec.151 of CPC by the respondent No.2 is rejected with costs of Rs.200/-. To file memo of instructions by the respondent No.2. Call on 09-06-2025.” (Emphasis added) It is this order, that has driven the petitioner to this Court in the subject petition. - 7 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 5. Learned counsel for the petitioner submits that the parties to the lis are sister and brother, who were before the concerned Court seeking partition. The plaintiff in terms of the judgment of the concerned Court becomes entitled to 1/3rd share in the suit properties. The concerned Court as directed in the judgment, preliminary decree is drawn. In the final decree proceedings, the respondent has sought ½ share in the suit scheduled properties on the score that defendant No.1, the mother of the parties died after the preliminary decree was drawn, notwithstanding the fact that in terms of the judgment and decree dated 17.06.2010, she was entitled to 1/3rd share in the properties. He would place reliance upon the judgment passed by the co-ordinate bench of this Court in the case of T.S.LAKSHMINARAYANA UPADHYA, SINCE DEAD BY LRS. VS. GEETHA DEVI reported in 2022 (2) KCCR 1176 and submits that the application seeking stay of the proceedings of the Commissioner ought to have been allowed as the application seeking appointment of the Commissioner preferred by the respondent traveled beyond preliminary decree. - 8 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 6. Per contra, learned counsel for the respondent would vehemently refute the submissions contending that there was no warrant to seek stay of the order appointing the Commissioner for determination of the mesne profit and the proceedings taken by the Commissioner on the ground petitioner had been appropriating income and mesne profits arising out of the suit scheduled properties even during the pendency of the suit. Therefore, he seeks dismissal of the petition. 7. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. 8. The afore-narrated facts are not in dispute. The judgment and decree passed in favour of the respondent – plaintiff is as follows: “ORDER The suit of the plaintiff is decreed. It is declared that the plaintiff is entitled to 1/3rd share in all the suit schedule properties. Draw a preliminary decree accordingly. - 9 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 Separate enquiry shall be held under Order 20 Rule 12 C.P.C., for mesne profits.” Final decree proceedings are instituted by the respondent - plaintiff, in which the prayer sought reads as follows: “…. …. …. Wherefore, the petitioner prays that this Hon'ble Court may be pleased to pass the following reliefs in favour of the plaintiff/petitioner against the respondents/defendants. a) order to pass a final decree in the suit bearing O.S. No.5070/2000 allotting one/half (1/2)share in the suit properties in favour of the petitioner/plaintiff. b) To appoint a Commissioner to divide the suit property by metes and bounds into ½ equal shares and to allot one half equal share in all the suit schedule properties to the petitioner and possession may be delivered. c) To enquire into the mesne profits as per the decree.” In furtherance of the said prayer, an application is filed by the respondent - plaintiff seeking appointment of the Commissioner which comes to be allowed by the afore-quoted order. Therefore, the prayer that is sought in the final decree proceedings inter alia was for appointment of a Commissioner to divide the property by metes and bounds into ½ share each in the suit properties, while the preliminary decree was drawn - 10 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 as 1/3rd share in favour of the plaintiff in terms of the judgment dated 17.06.2010. This variance lead the petitioner – respondent No.2 seeking stay of the order appointing the Commissioner, which comes to be rejected by the perfunctory order quoted supra. 9. In the aforesaid circumstance, the application seeking stay of the proceedings of the Commissioner should have merited appropriate consideration on the score that the share of the parties is yet to be determined in the final decree proceedings, as defendant No.1 expired prior to the institution of the final decree proceedings. The concerned Court was at the stage of recording evidence regarding the Will executed in favour of the petitioner - defendant No.2 by the defendant No.1, when the application seeking appointment of Court Commissioner was preferred by the respondent – plaintiff. The enquiry regarding the income or the mesne profits cannot be conducted unless the shares of the parties are determined. It is for the concerned Court to undertake the exercise of re- determining the shares of the parties on the said circumstances. The concerned Court does not advert to the - 11 - HC-KAR NC: 2025:KHC:25766 WP No. 18121 of 2025 circumstance under which the petitioner had to prefer an application seeking stay. Therefore, the concerned Court must now reconsider the application bearing in mind the aforesaid observation. 10. For the aforesaid reasons, the following: ORDER a. The writ petition is allowed in part. b. The order dated 02.06.2025 passed by LXXV Additional City Civil and Sessions Judge, Bengaluru, stands quashed. c. The matter is remitted back to the concerned Court only insofar as the application filed under Section 151 of the CPC preferred by the petitioner – defendant No.2 seeking stay of the proceedings of the Commissioner, to consider afresh bearing in mind the observations made in the course of the order. SD/- (M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 61