SHRIKANTH Vs. SUJATHA

JUDGEMENT

(1.) This petition by the respondent in FDP no.13/2020 on the file Senior Civil Judge & ACJM, Karkala is directed against the impugned order passed by the trial court vide the application I.A.no.III filed by respondent under order XXVI Rule 10 read with 151 CPC was rejected by the trial court.

(2.) The material on record discloses that pursuant to preliminary decree dtd. 2/8/2010 passed in OS 18/2009, the respondents herein instituted the aforesaid FDP no.13/2020 to enforce and implement the said judgment and decree. In the said final decree proceedings, the petitioner is arrayed as sole respondent and he has contested the proceedings. in this context, it is relevant to state that the petitioner is the son of one late H Shivanna Sri Nivasa, who was arrayed as defendant no.18 in the suit. In the final decree proceedings in FDP no. 13/ 2020, the wife and children of the said Shivanna arrayed as petitioners nos.20 to 24 while the other son of shivanna i.e., petitioner herein is sole respondent to the final decree proceedings.

(3.) During the course of the proceedings, a court commissioner was appointed by the trial court and he submitted a report, pursuant to which the said court commissioner was examined as CW1. Since all the family members comprising of respondents herein, who are petitioners in FDP stated that they have no objection to report of court commissioner, it was only the petitioner who was filed his objection to the cross-examination to the report of the court commissioner CW1 and marked ExsR1 to R11 on his behalf. Subsequently, the petitioner filed the instant application I.A. no.3 under order XXVI Rule 10 of CPC to set aside the report of the court commissioner and to appoint fresh court commissioner. It was also contended that the commissioner report should not be accepted by the trial court. After hearing the parties, the trial court proceeded to pass the impugned order accepting the report of the commissioner and rejected the application filed by the petitioner by holding as under: