MURTHY K. R. Vs. RAJESHWARI

JUDGEMENT

(1.) This writ petition is filed by the petitioner under Article 227 of the Constitution of India praying to set aside the orders dtd. 22/11/2021 and 3/2/2021 passed in FDP No.16/2011 by the Civil Judge and JMFC, Bhadravathi (for short, 'the trial Court'), whereby the application filed by respondent No.1 under Order XXVI Rule 1 of CPC for appointment of Court Commissioner to conduct public auction in respect of item Nos.1 and 2 of the proceedings was allowed.

(2.) Brief facts leading to filing of this petition are that respondent No.1 has initiated final decree proceedings in FDP No.16/2011 seeking prayer to draw final decree in favour of respondent No.1, who is plaintiff No.2 in O.S.No.16/2006. During the pendency of the above said final decree proceedings, respondent No.1 has filed an application seeking for appointment of Court Commissioner contending that they are the beneficiaries of the decree and item Nos.1 and 2 are house and site properties, which cannot be divided into seven parts as per the preliminary decree. Respondent No.1, being the beneficiary under the said decree, is unable to enjoy the judgment and decree passed in O.S.No.16/2006 and sought to appoint Court Commissioner to make a public auction of item Nos.1 and 2 properties and deposit the proceeds before the Court and disburse 1/7th share to respondent No.1.

(3.) The said application was opposed by the petitioner by filing objections contending that the properties in question i.e. item No.1 being house property, is an ancestral property and other than the said property he does not have any property to reside. Hence, sought to reject the said application.