- 1 - NC: 2025:KHC-D:1146 WP No. 107418 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 107418 OF 2024 (GM-CPC) BETWEEN: SRI GUDDAVEERAPPA S/O. IRAPPA @ VEERAPPA HADPAD, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. CHIKKANAJI, TQ: BYADAGI, DIST: HAVERI-581110. …PETITIONER (BY SRI. V.S. KALASURMATH, ADVOCATE) AND: 1. SMT. GANGAVVA W/O. HAMPANNA HADAPAD, AGE: 78 YEARS, OCC: AGRICULTURE, R/O. KABBUR, TQ: BYADAGI, DIST: HAVERI-581110. 2. SMT. RUDRAVVA W/O. NEELAKANTHAPPA HADPAD, AGE: 62 YEARS, OCC: COOLIE & HOUSEHOLD, R/O. CHIKKANAJI, TQ: BYADAGI, DIST: HAVERI-581110. 3. SMT. MALLAVVA W/O. PUTTAPPA HADPAD, AGE: 65 YEARS, OCC: AGRICULTURIST, R/O. KASAMBI, TQ: BYADAGI, DIST: HAVERI-581110. 4. SRI. KHANDEPPA S/O. PUTTAPPA HADPAD, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O. KASAMBI, TQ: BYADAGI, DIST: HAVERI-581110. 5. SRI. FAKKIRAPPA S/O. PUTTAPPA HADPAD, AGE: 55 YEARS, OCC: AGRICULTURIST, R/O. KASAMBI, TQ: BYADAGI, DIST: HAVERI-581110. 6. RAJESAB S/O. MAHABOOBSAB KADAJJI, AGE: 41 YEARS, OCC: AGRICULTURIST, GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:1146 WP No. 107418 of 2024 R/O. KASAMBI, TQ: BYADAGI, DIST: HAVERI-581110. …RESPONDENTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1; R2-R5 ARE SERVED; R6-DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 13.11.2024 PASSED ON I.A. NO.1 FILED U/O 26 RULE 13 OF CPC FOR ISSUANCE OF COURT COMMISSIONER WARRANT TO EFFECT PARTITION AND SEPARATE POSSESSION AS PER DECREE PASSED BY THE HON’BLE CIVIL JUDGE AND JMFC, BYADAGI IN FDP NO.11/2024 VIDE ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking the following reliefs: a) Issue a writ in the nature of certiorari quashing the impugned order dated 13.11.2024 passed on I.A. No.1 filed U/o 26 Rule 13 of CPC for issuance of court commissioner warrant to effect partition and separate possession as per decree passed by the Hon’ble Civil Judge and JMFC, Byadagi in FDP No.11/2024 vide Annexure-A. b) Grant such other reliefs as this Hon’ble Court deems fit in the circumstances the case, in the interest of justice and equity. - 3 - NC: 2025:KHC-D:1146 WP No. 107418 of 2024 2. The petitioner is aggrieved by the order dated 13.11.2024 passed on I.A.No.1 filed under Order XXVI Rule 13 of the Code of Civil Procedure, for the appointment of Court Commissioner in FDP No.11/2024 and allowing the said application. 3. The submission Sri.V. S. Kalsurmath, learned counsel appearing for the petitioner is that, the petitioner has challenged the preliminary decree in R.A.No.1/2023, wherein, though the petitioner sought for interim orders, the respondents have not addressed their arguments in that matter and the application for stay has not been considered. 4. The said submission cannot be a ground seeking to challenge the order passed on an application under Order XXVI Rule 13 of CPC in FDP proceedings, appointing a Court Commissioner. So long as there is no stay in the Regular Appeal, the FDP Court would be well within its powers to appoint the Commissioner to - 4 - NC: 2025:KHC-D:1146 WP No. 107418 of 2024 effect partition in furtherance of the preliminary decree already passed. 5. It is for the petitioner to persuade the First Appellate Court to take up the application for stay, whether the respondents cooperate or not. When FDP proceedings are filed, the First Appellate Court would have to take up the said application for consideration on merits. 6. In view of the above, no ground being made out insofar as the impugned order dated 13.11.2024 is concerned, the petition stands dismissed. 7. The observation made in the present order will not come in the way of the First Appellate Court considering the application of stay as also the appeal on merits. Sd/- (SURAJ GOVINDARAJ) JUDGE gab CT-MCK List No.: 1 Sl No.: 16