- 1 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 03RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100057 OF 2017 (-) BETWEEN: 1. 1a. 1b. 1c. 1d. SRI. SHANTAPPA S/O. SHARANAPPAGOUDA POLICE PATIL, SINCE DECEASED BY HIS LRS., SMT. MAHADEVAMMA W/O SHANTAPPA @ SHANTAPPAGOUDA POLICE PATIL, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: LINGARAJ NAGAR (SOUTH) VIDYANAGAR, HUBLI, DIST. DHARWAD. RAMALINGAMMA D/O SHANTAPPA @ SHANTAPPAGOUDA POLICE PATIL, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O: LINGARAJ NAGAR (SOUTH) VIDYANAGAR, HUBLI, DIST. DHARWAD. GURURAJ S/O SHANTAPPA @ SHANTAPPAGOUDA POLICE PATIL, AGE: 40 YEARS, OCC: (HOUSEHOLD WORK) BUSINESS, R/O: LINGARAJ NAGAR (SOUTH) VIDYANAGAR, HUBLI, DIST. DHARWAD. SHIVAKUMAR S/O SHANTAPPA @ SHANTAPPAGOUDA POLICE PATIL, AGE: 40 YEARS, OCC: (HOUSEHOLD WORK) CLASS-1 CONTRACTOR, R/O: LINGARAJ NAGAR (SOUTH) VIDYANAGAR, HUBLI, DIST. DHARWAD. …APPELLANTS (BY SRIYUTHS. S.B. DODDAGOUDAR AND A.C. CHAKALABBI, ADVS) AND: 1. SRI. IRAPPA S/O. SHANKARAPPA KADAPPANAVAR, AGE: 61 YEARS, OCC: BUSINESS, R/O: AKKIHONDA, HUBLI-580031. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.11 12:13:21 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 2. SRI. DEVENDRAGOUDA S/O. VEERBHADRAGOUDA PATIL AGE: 48 YEARS, OCC: AGRICULTURE R/O:SIDDHARUDH NAGAR, HUBLI-580031. 3. SMT. GIRIJA W/O. SOMAPPA YERESHIMI AGE: 53 YEARS, OCC: HOUSEHOLD WORK R/O:SIDDHARUDH NAGAR, HUBLI-580031. 4. SRI. SHANKARAPPA S/O. BHEEMAPPA GADIGIN AGE: 58 YEARS, OCC: AGRICULTURE R/O: BHANDIWAD VILLAGE, TQ: HUBLI-580031. 5. 5a. MALLANNA S/O. GURANNA MANKAPUR SINCE DECEASED BY HIS LRS VISHALAXI W/O. MALLANNA MAKANAPUR AGE: 67 YEARS, OCC:SERVICE R/O:BEHIND BAGI AUTOS, VIDYA NAGAR, HUBLI-580031. 5b. MADHUSUDAN S/O. MALLANNA MAKANAPUR AGE: 36 YEARS, OCC:STUDENT R/O: BEHIND BAGI AUTOS, VIDYA NAGAR, HUBLI-580031. 5c. CHIDAMBAR S/O. MALLANNA MAKANAPUR AGE: 37 YEARS, OCC: STUDENT R/O: BEHIND BAGI AUTOS, VIDYA NAGAR, HUBLI-580031 …RESPONDENTS (BY SRI. S.K. KAYAKAMATH, ADV FOR R1, R2, R4 & R5 (A TO C) AND NOTICE TO R3 IS HELD SUFFICIENT) THIS RFA IS FILED U/SEC.96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.11.2016 PASSED IN FDP NO.20/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, HUBBALLI, ALLOWING THE PETITION FILED UNDER ORDER 7 RULE 1 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Appeal is filed by the appellant, challenging the Final Decree dated 18.11.2016 passed in FDP No.20/2009 by the learned Senior Civil Judge and JMFC, Hubli. 2. For convenience the parties are referred to based on their rankings before the trial Court. The Appellant was the defendant, and the respondents were the plaintiffs. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed the suit against the defendants for rendition of the accounts in O.S.No.135/1995. The trial Court after recording the evidence, decreed the suit vide judgment dated 07.11.2001. Pursuant to the preliminary decree passed in O.S. No.135/1995, the plaintiffs filed a final decree proceedings in FDP No.20/2009 on the file of the learned Principal Senior Civil Judge and JMFC, Hubli. The defendant appeared through the counsel; however, did not file his objections to the main petition. The trial Court appointed Court Commissioners. The Court Commissioners - 4 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 submitted a reports regarding the financial statements for the Project and shown the amount which become due to the promoters/plaintiffs, and the defendants at the end of the project. The defendant filed his objections to the reports of the Commissioner, and taken a contention that the Court Commissioner Sri. Chandan Pai has wrongly observed that the defendant had not maintained the proper accounts, vouchers and bills in the ordinary course of business. It is also contended that the commissioner has wrongly shown about the contribution made by each of the partners and accordingly, prays to reject the report submitted by the Court Commissioner Sri. Chandan Pai. The Plaintiffs also filed their objections to the court commissioners praying the FDP court to direct the court commissioner to reassess the profits. Sri. Chandan Pai was examined as CW-1, and marked 52 documents as Exs.C-1 to C-52. The FDP Court based on the evidence of CW-1-Court Commissioner i.e., Sri. Chandan Pai allowed the petition with costs which reads as follows: - 5 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 ORDER The petition filed u/0.7 rule 1 of CPC is hereby allowed with costs against the defendant, and the plaintiffs and the defendant are as per the financial statements of the partnership firm entitle for the amount as promoters at the end of the project as follows: Sl. No. Name of partners Capital contribution Share in profit of firm (Rs.) Total 1 S.S.Police Patil 1,29,000/- 82,757/- 2.11,757/- 2 Mallanna Makanapur 1,29,000/- 82,757/- 2,11,757/- 3 Irappa Kadappanavar 1,29,000/- 82,757/- 2,11,757/- 4 Devendra V. Patil 1,29,000/- 82,757/- 2,11,757/- 5 Shankrappa B.Gadigin 1,29,000/- 82,757/- 2,11,757/- 6 Girija Yeresimi 80,000/- 51,321/- 1,31,321/- Total 7,25,000/- 4,65,106/- 11,90,106/- The plaintiffs are entitle to recover the amount from the defendant accordingly. Draw the final decree as per the above terms. 5. The defendant, aggrieved by the final decree passed in FDP No.20/2009 filed this Regular First Appeal under Section 97 of the Code of Civil Procedure. 6. Heard the learned counsel for the defendant, and the plaintiffs. - 6 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 7. Learned counsel for the defendant submits that the Final Decree Court appointed two Court Commissioners namely Sri. Chandan Pai and Sri. Uday Shetty. He submits that the report submitted by the Court Commissioner Sri.Uday Shetty was not considered by the Court below, and committed an error in placing reliance on the report submitted by the Chandan Pai only. He also submits that, there is no reference regarding the report submitted by Sri. Uday Shetty in the impugned decree. Hence, on these grounds, he submits that the final decree may be set aside, and the matter be remitted to the FDP Court to reconsider the matter afresh, and to pass appropriate orders. 8. Per contra, learned counsel for the plaintiffs supported the impugned final decree and submitted that the FDP Court has rightly placed reliance on the report submitted by the Court Commissioner Sri. Chandan Pai and passed the final decree. Hence, on this ground, he prays to dismiss the appeal. 9. Perused the records, and considered the submissions of the learned counsel for the parties. - 7 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 10. The points that would arise for consideration in this appeal are: i. Whether the defendant proves that the trial Court has committed an error in not placing reliance on the report submitted by the Court Commissioner Sri. Uday Shetty? ii. What order or decree? 11. Point No. (i): There is no dispute that the plaintiffs have filed a suit for rendition of the accounts of the partnership in O.S. No.135/1995. The said suit was decreed vide judgment and preliminary decree dated 07.11.2001. The judgment and preliminary decree passed in the said suit has attained finality. Thereafter, the plaintiffs have filed a final decree proceedings to draw the final decree in terms of the preliminary decree. During the pendency of the final decree proceedings, an application was made by the plaintiffs to appoint a Court Commissioner to ascertain regarding the financial status and submit a report. Earlier, Sri. Chandan Pai was appointed as the Court Commissioner, and he has submitted a report to the Court. The defendant and the - 8 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 plaintiffs filed their objections to the Commissioner’s report. The said Court Commissioner was examined as CW-1 and marked 52 documents as Exs.C-1 to C-52. The FDP Court appointed court commissioners i.e., Sri. Chandan Pai and Sri. Uday Shetty vide order dated 20.01.2010. Both of them have submitted a report to the FDP Court. The defendant and the plaintiffs have filed a objections to the report submitted by the Sri. Chandan Pai; However, neither the plaintiffs nor the defendant have submitted any objections to the report submitted by Sri. Uday Shetty. 12. The defendant has filed objections to the report submitted by Sri. Chandan Pai. Sri. Chandan Pai was examined as CW.1 and marked the documents; However, the FDP Court, while passing the impugned order, has not made any reference regarding the report submitted by the Court Commissioner Sri. Uday Shetty as to whether it is in favour of the plaintiffs or in the favour of the defendant. When the FDP Court appointed two commissioners to ascertain the financial status of the promoters, the FDP Court should have relied on the report submitted by Sri. Uday Shetty also. - 9 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 13. At the cost of repetition, there is no reference about the contents of the reports submitted by Sri. Uday Shetty in the final decree order. Hence, on this ground alone, the impugned decree, is liable to be set aside. 14. In view of the above discussion, I answer the point No.(1) for consideration in the affirmative. 15. Point No.(ii): In view of the above discussion, I proceed to pass the following order: ORDER i. The Appeal is allowed. ii. The final decree dated 18.11.2016 passed by the learned Principal Senior Civil Judge and JMFC, Hubli, in FDP No.20/2009, is hereby set aside. FDP No.20/2009 is restored to its original file. iii. The FDP Court is directed to dispose of the case, considering the report submitted by the Court Commissioners Sri. Chandan Pai and Sri. Uday Shetty, and pass an appropriate order in accordance with law. - 10 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 iv. The parties are directed to appear before the FDP Court on 27.10.2025 without awaiting any further notice, from the FDP Court. v. The Liberty is reserved to the parties to examine the Court Commissioner Sri. Uday Shetty. It is made clear that this Court has not made any adjudication on the merits in issue. The FDP Court is directed to dispose of the case, within six months as expeditiously as possible, as the FDP is of 2009. All contentions of the parties are kept open. In view of disposal of the appeal, I.As. 1/2024 and 2/2024 do not survive for consideration. Accordingly, disposed of. Learned counsel for the defendant submits that pursuant to the interim order passed by this Court, the defendant has deposited a sum of Rs.5,00,000/- before the trial Court and it is kept in fixed deposit. - 11 - HC-KAR NC: 2025:KHC-D:11328 RFA No. 100057 of 2017 The trial Court is directed to continue to keep the said amount in fixed deposit till disposal of the final decree proceedings. Sd/- (ASHOK S. KINAGI) JUDGE RHR Kmv from para 4 till end. CT: BSB