Karnataka HC Requires Structural Engineer To Supervise Demarcation And Wall-Building As Decree-Holder Takes 23% Of Old Building

The petitioners, judgment debtors in Execution Petition No. 10/2023, challenged the Executing Court’s rejection of their application under Order XXVI Rule 9 CPC.

The final decree allotted the respondent decree-holder a 23% share on the northern side of the property and the petitioners a 77% share on the southern side; the decree had attained finality.

A Court Commissioner had been appointed to measure and demarcate the respondent’s share and put him in possession.

The petitioners did not oppose demarcation or transfer of possession, but sought appointment of a qualified structural engineer to advise on safely constructing the dividing wall and protecting the old building’s structural stability.

The respondent stated that he would construct the wall at his own cost without damaging the structure.

The Court considered Order XXVI Rules 9 and 13 CPC, concerning the appointment of a commissioner for local investigation and for effecting partition, respectively; the existing commissioner had been appointed to measure and demarcate the decree-holder’s share.

The Court also exercised its jurisdiction under Articles 226 and 227 of the Constitution to review the Executing Court’s order.

It applied the principle that execution may be facilitated by appropriate technical supervision where necessary to carry out the decree safely and avoid damage to the property; no precedent was cited.

The final decree and the respondent’s entitlement to possession were not in dispute, and the petitioners did not resist demarcation.

However, the property was an old structure under a common roof, and the material before the Court indicated that care was required when bifurcating it.

Because the petitioners’ request concerned the safe manner of execution—not alteration of the decree—and the respondent also wished to preserve the building, the Court considered technical supervision reasonable and beneficial to both parties.

It directed the Executing Court to ensure that a Structural Engineer from the Public Works Department or another competent Government Engineering Institution be appointed, alongside the existing Court Commissioner, to supervise demarcation and construction of the dividing wall so that the building’s structural stability is maintained.