- 1 - NC: 2025:KHC-D:1270 WP No. 108041 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.108041 OF 2024 (GM-CPC) BETWEEN: ABDULKHADAR S/O BABAJNSAB HULAGERI AGE. 65 YEARS, OCC. BUSINESS, R/O BASTI ONI, KALLAMANTAP ROAD HAVERI TQ. HAVERI, DIST. HAVERI. …PETITIONER (BY SRI. D.M.MALLI, ADVOCATE) AND: SRI UMESH S/O CHANABASAYYA MALIMATH AGE. 65 YEARS, OCC. BUSINESS, R/O UDAYA NAGAR, HAVERI, TQ. HAVERI, DIST. HAVERI. …RESPONDENT (NOTICE TO RESPONDENT IS 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. 15.10.2024 PASSED BY THE PRL.SENIOR CIVIL JUDGE AND JMFC, HAVERI, ON IA NO. VII FILED UNDER ORDER XXVI RULE 9 AND 10 R/W 151 OF CPC, VIDE ANNEXURE-J, IN EP NO.70/2013, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: GIRIJA A BYAHATTI Digitally signed by GIRIJA A BYAHATTI Date: 2025.01.24 16:41:05 +0530 - 2 - NC: 2025:KHC-D:1270 WP No. 108041 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. Notice to respondent is dispensed with in view of the proposed order to be passed. 2. The petitioner is before this court seeking for the following relief: “To issue a writ in the nature of Certiorari quashing the impugned order dated 15.10.2024 passed by the Prl.Senior Civil Judge and JMFC, Haveri, on IA No.VII filed under order XXVI Rule 9 and 10 R/W 151 of CPC, vide Annexure-J, in EP No.70/2013, in the interest of justice and equity” 3. A suit in O.S.No.98/2006 had been filed by the respondent seeking for specific performance of an agreement of sale, which came to be decreed on 17.03.2008. Pursuant thereto, execution proceedings had been filed in Execution Petition No.70 of 2013. When the bailiff had been directed to inspect the property and submit a report, which has been so submitted on 20.02.2023 indicating that the subject - 3 - NC: 2025:KHC-D:1270 WP No. 108041 of 2024 property shown in the decree to be a vacant site, whereas during inspection it is found that there is certain construction on the property which is in occupation of the tenants of the Judgement Debtor. 4. Pursuant thereto, the petitioner had filed an application under Order XXVI Rule 9 and 10 read with Section 151 of the Code of Civil Procedure (for short 'CPC') seeking for appointment of Commissioner namely, the ADLR to visit the property, identify the same and submit a duly prepared map to facilitate the execution of the decree, which having been opposed by respondent, has been rejected by the trial Court. Challenging the same, the petitioner is before this Court. 5. The submission of learned counsel for the petitioner is that the ADLR's report is required to identify the property since what is required to be sold is only a vacant land and not one with construction and the constructed area cannot be made subject matter of - 4 - NC: 2025:KHC-D:1270 WP No. 108041 of 2024 sale deed to be executed by the Court in favour of the Decree Holder. 6. I am unable to agree with the submission made by the counsel for the petitioner in as much as the construction has been put up by the Judgement Debtor and has been leased by the Judgement Debtor to his tenants. The Judgement Debtor cannot be allowed to take advantage of his own wrongs/actions and now contend that since there is a construction, which has been put up, the sale deed cannot be executed without identifying vacant land. 7. The Judgement Debtor having chosen to put up construction subsequent to the agreement of sale, a decree having been passed, the Judgment Debtor is bound to execute a sale deed in favour of the Decree Holder. 8. I am of the considered opinion that the application for appointment of Commissioner is only to protract the proceedings and serves no other purpose. There is no requirement to appoint the Commissioner as sought - 5 - NC: 2025:KHC-D:1270 WP No. 108041 of 2024 for. I do not find any infirmity in the order of the trial Court, the petition stands dismissed at the state of admission itself. Sd/- (SURAJ GOVINDARAJ) JUDGE AM List No.: 1 Sl No.: 34