Case Note & Summary
The petitioner, the 7th defendant in O.S. No.1178/2002 pending before the Principal Senior Civil Judge, Bangalore Rural District, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 18.07.2017 passed on I.A. No.4. The suit was for partition and separate possession of the suit schedule property. The petitioner filed I.A. No.4 under Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking appointment of a Commissioner to identify the suit schedule property and to note down the physical features and existing structures. The Trial Court dismissed the application on the ground that the application ought to have been filed under Order 26 Rule 9 CPC and not under Section 151 CPC. The High Court observed that the nomenclature of the provision is not decisive and that the court can exercise its inherent power under Section 151 CPC to appoint a Commissioner to identify the property for effective adjudication. The High Court set aside the impugned order and allowed I.A. No.4, directing the Trial Court to appoint a Commissioner as prayed for.
Headnote
A) Civil Procedure - Inherent Powers - Section 151 CPC - Appointment of Commissioner - The Trial Court dismissed the application filed under Section 151 CPC for appointment of a Commissioner to identify the suit schedule property, holding that the application should have been filed under Order 26 Rule 9 CPC. The High Court held that the nomenclature of the provision is not decisive; the court can exercise its inherent power under Section 151 CPC to appoint a Commissioner to identify the property for effective adjudication, especially when the suit is for partition and the property boundaries are disputed. The impugned order was set aside and the application was allowed. (Paras 1-6)
Issue of Consideration
Whether the Trial Court was justified in dismissing the application filed under Section 151 of the Code of Civil Procedure, 1908 for appointment of a Commissioner to identify the suit schedule property, on the ground that the application ought to have been filed under Order 26 Rule 9 CPC and not under Section 151 CPC.
Final Decision
The writ petition is allowed. The impugned order dated 18.07.2017 passed on I.A. No.4 in O.S. No.1178/2002 by the Principal Senior Civil Judge, Bangalore Rural District, Bangalore, is quashed and set aside. I.A. No.4 is allowed. The Trial Court is directed to appoint a Commissioner as prayed for.
Law Points
- Section 151 CPC
- Order 26 Rule 9 CPC
- Inherent powers of court
- Appointment of Commissioner
- Identification of property
- Partition suit
Case Details
2017 LawText (KAR) (10) 12
Writ Petition No.39101/2017 (GM-CPC)
Sri Jagadeesh. P., Advocate for Sri K. K. Vasanth, Advocate
Smt. Hanumakka and others
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging an order dismissing an application for appointment of a Commissioner in a partition suit.
Remedy Sought
The petitioner (7th defendant) sought to quash the order dated 18.07.2017 dismissing I.A. No.4 and to allow the application for appointment of a Commissioner.
Filing Reason
The Trial Court dismissed the application filed under Section 151 CPC for appointment of a Commissioner to identify the suit schedule property, holding that the application should have been filed under Order 26 Rule 9 CPC.
Previous Decisions
The Trial Court dismissed I.A. No.4 filed under Section 151 CPC by order dated 18.07.2017.
Issues
Whether the Trial Court was justified in dismissing the application under Section 151 CPC for appointment of a Commissioner on the ground that it should have been filed under Order 26 Rule 9 CPC.
Submissions/Arguments
The petitioner argued that the nomenclature of the provision is not decisive and the court can exercise its inherent power under Section 151 CPC to appoint a Commissioner to identify the property for effective adjudication.
Ratio Decidendi
The court can exercise its inherent power under Section 151 of the Code of Civil Procedure, 1908 to appoint a Commissioner to identify the suit schedule property for effective adjudication, and the nomenclature of the provision under which the application is filed is not decisive.
Judgment Excerpts
The 7th defendant filed the present writ petition to quash the impugned order dated 18.7.2017 on I.A. No.4 made in O.S. No.1178/2002 on the file of the Prl. Senior Civil Judge, Bangalore rural district, Bangalore, dismissing the application filed under Section 151 of the Code of Civil Procedure, 1908.
The nomenclature of the provision is not decisive and the court can exercise its inherent power under Section 151 CPC to appoint a Commissioner to identify the property for effective adjudication.
Procedural History
The petitioner, as 7th defendant in O.S. No.1178/2002, filed I.A. No.4 under Section 151 CPC for appointment of a Commissioner. The Trial Court dismissed the application on 18.07.2017. The petitioner then filed the present writ petition under Article 227 of the Constitution of India challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 151, Order 26 Rule 9
- Constitution of India: Article 227
