SHARADA Vs. G. DINESH

JUDGEMENT

(1.) The captioned writ petition is filed by judgment debtors 3 (A-D) questioning the order of the Executing Court appointing a Court Commissioner to ascertain the availability of the vacant land in Survey No. 2/3.

(2.) First respondent's father namely Gangappa instituted a suit for partition and separate possession in O.S. No. 1435/1980. The said suit was decreed thereby granting share in the suit schedule property. The father of first respondent initiated final decree proceedings in FDP. No. 50/1989. In the final decree proceedings, the first respondent's father was allotted 14 1/2 guntas in Survey No. 2/3 which is the subject matter of execution proceedings. The FDP Court while drawing final decree held that plaintiff is entitled for middle portion of the land as shown in the sketch. However, in the operative portion of the final decree, the FDP Court also observed that if the portion allotted to first respondent's father is not vacant and if constructions have come in the said portion, then plaintiff has to be allotted vacant portion in the same land. If vacant portion is not available, then plaintiff is entitled for same portion which is allotted to him by removing constructions, if any.

(3.) The original plaintiff filed Execution based on the final decree. This is the second round of litigation where unfortunately defendants in the said suit are litigating. The order of the Executing Court appointing Court Commissioner is not challenged by the legal representative of plaintiff. This order is challenged by the defendants.