- 1 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 35806 OF 2025 (GM-CPC) C/W WRIT PETITION NO. 5197 OF 2025 (GM-CPC) IN WP No. 35806/2025 BETWEEN: SRI THIMMAPPA S/O PATEL GIRIGOWDA, SINCE DEAD BY LRS. 1. HANUMANTHAPPA G.T S/O LATE THIMMAPPA, AGED ABOUT 58 YEARS, 2. RAMESH G.T S/O LATE THIMMAPPA, AGED ABOUT 56 YEARS, 3. LOKESH G T S/O LATE THIMMAPPA, AGED ABOUT 54 YEARS 4. GOVINDARAJU, S/O LATE THIMMAPPA, AGED ABOUT 52 YEARS, 5. SIDDESH G.T S/O LATE THIMMAPPA, AGED ABOUT 50 YEARS ALL ARE RESIDING AT GOLLARAHALLI VILLAGE JAVAGAL HOBLI, ARASIKERE TALUK – 573 125 HASSAN DISTRICT. …PETITIONERS (BY SRI. CHETHAN B, ADVOCATE) Digitally signed by MADHURI S Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 AND: SRI SIDDAPPA S/O LATE NINGAPPA, SINCE DEAD BY LRS. 1. SEKARAPPA S/O LATE SIDDAPPA, AGED ABOUT 52 YEARS, 2. GOWRAMMA W/O CHIDAMBARA, AGED ABOUT 48 YEARS, BOHT RESIDING AT GOLLARAHALLI VILLAGE, JAVAGAL HOBLI ARSIKERE TALUK-573 125 HASSAN DISTRICT. 3. JAYADEVAPPA S/O LATE SIDDAPPA, AGED ABOUT 57 YEARS R/AT GOLLARAHALLI VILLAGE, JAVAGAL HOBLI ARSIKERE TALUK-573125 HASSAN DISTRICT. …RESPONDENTS (BY SRI. R.P.SOMASHEKARAIAH, ADVOCATE FOR R-1) THIS W.P IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19/08/2023 PASSED IN R.A NO.41/2023 ON THE FILE OF HONBLE SENIOR CIVIL JUDGE AND JMFC AT ARASIKERE AS PER ANNEXURE -A ON I.A NO.1. IN WP NO. 5197/2025 BETWEEN: SRI SIDDAPPA S/O LATE NINGAPPA, AGED ABOUT 75 YEARS, R/AT GOLLARAHALLI VILLAGE, JAVAGAL HOBLI, ARSIKERE TALUK, 573 125. HASSA DISTRICT ...PETITIONER (BY SRI. SOMASHEKHARAIAH R P.,ADVOCATE) - 3 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 AND: 1. SRI HANUMANTHAPPA G T S/O LATE THIMMAPPA, AGED ABOUT 58 YEARS, 2. SRI RAMESH G T S/O LATE THIMMAPPA, AGED ABOUT 56 YEARS, 3. SRI LOKESH G T S/O LATE THIMMAPPA, AGED ABOUT 54 YEARS, 4. SRI GOVINDARAJU S/O LATE THIMMAPPA, AGED ABOUT 52 YEARS, 5. SRI SIDDESH G T S/O LATE THIMMAPPA, AGED ABOUT 50 YEARS, 6. SRI JAYADEVAPPA S/O LATE SIDDAPPA AGED ABOUT 57 YEARS, ALL ARE RESIDING AT: GOLLARAHALLI VILLAGE, JAVAGAL HOBLI, ARSIKERE TALUK 573 125. HASSAN DIST. ...RESPONDENTS (BY SRI. CHETHAN B.,ADVOCATE FOR R-1 TO R-5 R-6 IS SERVED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 30.01.2025 IN RA NO. 41/2023 ON IA NO.3 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC COURT AT ARSIKERE UNDER ANNX-E AND TO ALLOW THE IA NO.3. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR - 4 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 ORAL ORDER These petitions arise out of the orders passed on I.A.Nos.1 and 3 in RA No.41/2023 pending on the file of the Senior Civil Judge and JMFC, Arasikere. 2. Heard learned counsel for the parties and perused the material on record. 3. A perusal of the material on record will indicate that the petitioners in W.P.No.35806/2025 instituted a suit in OS No.3/2014 against the respondents-defendants for declaration, permanent injunction and other reliefs in relation to the suit schedule immovable property. The defendant No.1 in the said suit is the petitioner in WP No.5197/2025. By judgment and decree dated 19.07.2023, the Trial Court decreed the suit in favour of the plaintiffs against the defendants. Aggrieved by the said judgment and decree, defendant No.1 has approached the First Appellate Court in R.A.No.41/2023, which is pending consideration. In the said appeal, defendant No.1 – appellant having filed an application for stay, the Trial Court proceeded to pass order on I.A.No.1 dated 19.08.2023 staying the operation, execution and implementation of - 5 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 the judgment and decree passed by the Trial Court and kept the application pending and issued notice to the respondents – plaintiffs. Aggrieved by the said impugned order dated 19.08.2023 passed by the First Appellate Court in RA No.41/2023, the plaintiffs are before this Court in WP No.35806/2025. 4. During the pendency of the appeal, the appellant – defendant No.1 filed an application – IA No.3 under Order XXVI Rule 9 CPC seeking appointment of a Taluk Surveyor as Court Commissioner to conduct local inspection. The said application having been opposed by the respondents – plaintiffs, the First Appellate Court proceeded to pass the impugned order dated 30.01.2025 rejecting IA No.3, aggrieved by which the defendant No.1 - appellant in RA No.41/2023 has preferred the connected WP No.5197/2025. 5. A perusal of the impugned order dated 30.01.2025 passed in RA No.41/2023 rejecting I.A.No.3 filed under Order XXVI Rule 9 CPC will clearly indicate that the impugned order is contrary to the well settled principles of law governing consideration of application for appointment of Court Commissioner, which - 6 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 necessarily would have to be considered and disposed of along with the main appeal and not by way of an independent / separate order. Under these circumstances, on this short ground alone i.e., procedural irregularity and patent illegality in considering and disposing of IA No.3 without disposing of the main appeal and keeping the same pending, I am of the considered opinion that the impugned order dated 30.01.2025 passed by the First Appellate Court rejecting IA No.3 deserves to be set aside and the matter remitted back to the First Appellate Court for reconsideration of IA No.3 along with the main appeal. 6. Insofar as the impugned order dated 19.08.2023 passed on IA No.1 in RA No.41/2023, learned counsel for both sides submit that they would co-operate with the First Appellate Court for expeditious disposal of the main appeal itself, in accordance with law. 7. In view of the aforesaid facts and circumstances and joint submissions made by both sides, WP No.35806/2025 also deserves to be disposed of accordingly. 8. In the result, I pass the following: - 7 - HC-KAR NC: 2026:KHC:1643 WP No. 35806 of 2025 C/W WP No. 5197 of 2025 ORDER (i) W.P.No.5197/2025 is hereby allowed. (ii) The impugned order dated 30.01.2025 passed on IA No.3 by the First Appellate Court is hereby set aside. (iii) Matter is remitted back to the First Appellate Court for reconsideration of IA No.3 along with the main appeal. (iv) W.P.No.35806/2025 is hereby disposed of. (v) The First Appellate Court is directed to dispose of IA No.3 as well as the main appeal, in accordance with law within a period of three months from the date of receipt of a copy of this order. (vi) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same. Sd/- (S.R.KRISHNA KUMAR) JUDGE SV List No.: 1 Sl No.: 26