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Judgment
Ravi Malimath, J.—At the request of both Counsels, the matter is taken up for final disposal.
Seeking to execute the judgment and decree dated 30.07.2003 passed by the City Civil Judge, Bangalore in O.S. No. 6062/1998, the respondents filed FDP No. 107/2003. During the pendency of the FDP proceedings, an application u/s 2 and 3 of the Partition Act was filed by the plaintiff seeking to appoint a Commissioner to visit the property mentioned therein to draw a sketch indicating the measurements, etc., to find out the feasibility of a partition. The Executing Court by the impugned order allowed the said application. Aggrieved by the same, the present petition is filed.
Sri. B.M. Halaswamy, learned Counsel appearing for the petitioner contends that the impugned order is bad in law and liable to be set aside. He contends that the marking of the property is opposed to law. Hence, the impugned order is erroneous. He contends that there cannot be a partition of a dwelling house.
Sri. G. Vedavysachar, learned Counsel appearing for the respondents defends the impugned order and submits that no interference is called for. He contends that aggrieved by the said judgment and decree, the petitioners have filed RFA 1148/2003 before the Hon''ble High Court of Karnataka wherein by the order dated 20.11.2003, the appeal was admitted and the drawing up of the final decree proceedings was stayed and the final decree proceedings were permitted to be proceeded with. He contends that the petitioner can urge all his contentions before the Appellate Court.
Heard Counsels.
Irrespective of the contentions urged by the petitioner so far as his rights in the FDP are concerned, the subject matter of the suit being pending in the appeal before this Court, the petitioner is entitled to raise such grounds as available to him under law. I find that, no legal injury would be caused to the petitioner by the impugned order. Even otherwise, none of the rights of the petitioner is affected. I find no grounds to entertain the petition.
The writ petition being devoid of merits is rejected.