- 1 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 47386 OF 2017 (GM-CPC) BETWEEN: SMT. INDIRA SINCE DECEASED BY HER LR SURESH BHAT S/O LATE VEDAVYASA BHAT AGED ABOUT 66 YEARS R/A KEELAKA HOUSE LAILA VILLAGE AND POST BELTHANGADY TALUK D.K. DISTRICT - 574 201. …PETITIONER (BY SRI. SACHIN B.S, ADVOCATE) AND: K. SHRINIVAS RAO SINCE DEAD BY HIS LRS 1. GEETHA MATHEW D/O SHRINIVAS RAO AGE:MAJOR C/O KATHYAYINI STORES BELTHANGADY POST BELTHANGADY KASBA VILLAGE BELTHANDAGY TALUK, DK - 574 214. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 2. ARAVINDA RAO S/O SHRINIVAS RAO, C/O KATHYAYINI STORES, BELTHANGADY POST, BELTHANGADY KASBA VILLAGE, BELTHANDAGY TALUK, DK - 574 214. 3. SMT. CHITRA NAYAK, W/O SRIDHAR NAYAK, R/O NEAR SL TEMPLE, PANEMANGALORE, BANTWAL TALUK - 574 211. 4. SMT. MITHRA KAMATH W/O MADHAV KAMATH AGED 59 YEARS R/O GURVAYANAKERE BELTHANGADY TALUK - 574 214. 5. SMT. GEETHA KINI W/O LATE P. UPENDRA KINI AGED 56 YEARS R/O GURUVAYANAKERE BELTHANGADY TALUK - 574 214. 6. SMT. MUKTHA G. PAI W/O V. PAI AGED 52 YEARS R/AT NEAR TALUK OFFICE BELTHANGADY TALUK - 574 214. …RESPONDENTS (SERVIDE OF NOTICE TO R2 AND R6, HELD SUFFICIENT (VIDE ORDER DATED 29.07.2025; R1, R3, R4, R5 SERVED) - 3 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD15.9.2017 PASSED IN RA NO.77/2007 ON THE FILE OF CIVIL JDUGE [SD] AND ADDITIONAL CJM PUTTUR AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION AS PRAYED FOR AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 15.09.2017 passed in R.A.No.77/2007 by the Civil Judge, Senior Division and Additional CJM, Puttur. 2. Sri.Sachin. B.S, learned counsel appearing for the petitioner submits that the petitioner has filed an appeal in R.A.No.77/2007 challenging the judgment of the trial Court wherein the respondent's suit for delivery of possession was decreed and in the said appeal, the petitioner filed an application for appointment of a Court Commissioner for identification of the plaint suit schedule property in the said - 4 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 application, which was not considered on merits, but under the impugned order, it was ordered to defer its consideration along with the appeal. It is submitted that the dispute is with regard to the identification of the property and once the Report is available before the Appellate Court it would aid the Appellate Court to decide the lis between the parties in a proper way. In support of his contention, he places reliance on the decision of this Court in the case of Smt.Nithilakshi and Another Vs. Dakshina Kannada Zilla Panchayath and Another in W.P.No.42757/2014 is disposed of on 17.10.2014, seeks to allow the petition. 3. Notice on the respondents is served, but there is no representation. 4. I have heard the arguments of the learned counsel for the petitioner and perused the material available on record. 5. The records indicate that the respondents have filed O.S.No.157/2013 against the petitioner for relief of delivery of possession, the said suit came to be decreed on 15.06.2007. Being aggrieved, the petitioner filed a Regular Appeal in - 5 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 R.A.No.77/2007, which is pending on the file of the Principal Senior Civil Judge and JMFC Belthangady, Dakshina Kannada. In the said appeal, the petitioner/appellant filed an application under Order XXVI Rule 9 of Code of Civil Procedure, 1908 (for short, 'CPC') seeking the appointment of Court Commissioner to identify the property in the suit schedule. The trial Court under the impugned order, deferred the consideration of the application by ordering that the said application shall be considered along with the main appeal. 6. It is to be noticed that when the appellant is disputing the existence or identity of the property, it would be appropriate for the Court to entertain such an application, so that the Court Commissioner can give actual Report to the court below, which would aid the Appellate Court to decide the appeal on its merits. This Court in the case of Smt.Nithilakshi (supra) has observed that the appellate Court shall consider the application for appointment of Court Commissioner and pass appropriate orders on merits and it cannot defer the consideration along with the main appeal. - 6 - HC-KAR NC: 2025:KHC:53144 WP No. 47386 of 2017 7. Considering the nature of relief sought, the contentions advanced and taking note of the decision of the Co- ordinate Bench, I am of the considered view that the petition deserves to be allowed. Accordingly, the writ petition is allowed. The impugned order dated 15.09.2017 passed in R.A.No.77/2007 is set aside. The First Appellate Court is directed to consider the application filed under order XXVI Rule 9 of CPC in accordance with law and pass orders. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE rv List No.: 1 Sl No.: 33