SRI K JANARDHAN S/O RAMDAS SARALAYA vs SRI GOPINATH S/O HARIDAS KIDIYOOR
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 15 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 108722 OF 2026 (GM-CPC)
BETWEEN:
1. SRI K. JANARDHAN S/O RAMDAS SARALAYA
AGED BOUT 64 YEARS, OCC. BUSINESS,
R/O. PANCHAMI BUILDING,
BEHIND TRAINING SCHOOL,
NEAR K C PARK, DHARWAD 580007.
2. SMT. JYOTI W/O JANARDHAN SARALAYA
AGED BOUT 59 YEARS, OCC. BUSINESS,
R/O. PANCHAMI BUILDING,
BEHIND TRAINING SCHOOL,
NEAR K C PARK, DHARWAD 580007.
…PETITIONERS
(BY SRI. A.S. PATIL, ADVOCATE)
AND:
SRI GOPINATH S/O HARIDAS KIDIYOOR
AGED BOUT 67 YEARS, OCC. ADVOCATE,
TH
R/O. SRI HARI, 4 MAIN ROAD,
SHAKTI NAGAR, GANDHI NAGAR, DHARWAD.
…RESPONDENT
Digitally
signed by
SAROJA
HANGARAKI
Location:
high court of
karnataka,
dharwad
bench
(SRI. GOPINATH HARIDAS KIDIYOOR, PARTY-IN-PERSON)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
DIRECTION OR ORDER QUASHING THE ORDER DATED 05-10-2026
PASSED BY THE LEARNED III ADDL. SENIOR CIVIL JUDGE AND CJM,
DHARWAD ON IA NO. 2 DATED 05-10-2026 IN EX NO. 10/2023 VIDE
ANNEXURE-G AND CONSEQUENTLY ALLOW THE I.A NO.2 IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
THIS WP COMING ON FOR PRELIMINARY HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
ORAL ORDER
1. The petitioner, who is the judgment debtor in Execution
Petition No.10/2023, is before this Court, aggrieved by
the order dated 05.10.2026, whereby the application filed
by the petitioner under Order XXVI Rule 9 of the Code of
Civil Procedure, 1908, in I.A. No.II, came to be rejected.
2. The brief facts leading to the filing of this writ petition are
that, in the preliminary decree passed in O.S.
No.120/2007, the decree holder was allotted a 23%
share, measuring 965 square feet, on the northern side
of the property, whereas the judgment debtor was
allotted a 77% share, measuring 3,233 square feet, on
the southern side. The preliminary decree proceedings
culminated in a final decree, which has attained finality.
3. In the execution proceedings, the decree holder-
respondent filed I.A. No.1 under Order XXVI Rule 13 of
CPC, seeking appointment of a Court Commissioner. The
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
Executing Court appointed the Additional Director of City
Survey, Dharwad, as the Court Commissioner to measure
and demarcate the 23% share situated on the northern
side, prepare a sketch and put the decree holder in
possession of the said portion.
4. Learned counsel for the petitioner submits that the
petitioner has no objection to the demarcation of the
property and handing over possession of the 23% share
to the decree holder. However, the petitioner filed I.A.
No.2 under Order XXVI Rule 9 of CPC, seeking
appointment of a qualified Structural Engineer from the
Public Works Department or the Karnataka State
Construction Department, or any other competent
Government Engineering Institution, to assess the
structural stability of the building, identify the load-
bearing walls, columns and beams, recommend the
measures required for safe execution of the decree and
submit a technical report. The said application came to be
rejected by the Executing Court.
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
5. Learned counsel for the petitioner submits that the
building in question is an old structure, which originally
had a tiled roof and is presently covered with zinc sheets.
The petitioner is running a hotel in the said building.
6. It is further submitted that the petitioner has no objection
to the demarcation and handing over of the 23% share to
the decree holder. The concern of the petitioner is only
with regard to the manner in which the dividing wall is to
be constructed, so that the structural stability of the
existing building is not affected. It is also submitted that
the electricity installations and connections may require
relocation in the course of such work. Therefore, the
petitioner seeks the assistance of a qualified technical
expert to ensure that the demarcation and construction of
the dividing wall are carried out safely without causing
damage to the existing structure.
7. The respondent, who appears in person, submits that he
has no objection to the petitioner removing his
belongings from the portion to be handed over and that
he would ensure that the dividing wall is constructed
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
without causing any damage to the existing building. The
respondent, appearing as party-in-person, submits that
the dividing wall would be constructed at his own cost,
without causing any damage to the existing structure. He
further submits that the building was constructed by his
father and that he too has sentimental value attached to
the structure and desires that it be preserved.
8. Heard learned counsel for the petitioner and the
respondent appearing as party-in-person. Perused the
records.
9. There is no dispute that the entire structure is covered by
a common roof. The documents produced, prima facie,
indicate that the structure is old. The report submitted by
the petitioner also indicates that due care is required to
be taken while bifurcating the property and handing over
the 23% share to the decree holder-respondent.
10. The petitioner has no objection for the demarcation
of the property and handing over possession of the 23%
share to the decree holder. A Court Commissioner has
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
already been appointed for the purpose of measurement
and demarcation. The only additional requirement is the
supervision of a qualified technical expert to ensure that
the process of demarcation and construction of the
dividing wall does not affect the structural stability of the
existing building.
11. In the considered opinion of this Court, the request
made by the petitioner is reasonable and would benefit
both parties. Such an arrangement would enable the
decree to be executed effectively while ensuring that the
existing structure is preserved and that no avoidable
damage is caused in the process.
allowed
12. Accordingly, the writ petition is . The
impugned order dated 05.10.2026 is hereby quashed,
and the matter is remitted to the Executing Court for
fresh consideration.
13. The Executing Court shall ensure that, along with
the Court Commissioner already appointed pursuant to
the order dated 29.11.2025, a Structural Engineer from
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HC-KAR
NC: 2026:KHC-D:17211
WP No. 108722 of 2026
CNR: KAHC020190672026
the Public Works Department or any other competent
Government Engineering Institution is appointed to
supervise the process of demarcation and construction of
the dividing wall, so as to ensure that the structural
stability of the existing building is maintained.
Sd/-
(M.G.S. KAMAL)
JUDGE
VB
CT:VP
LIST NO.: 1 SL NO.: 27