ssm 1 902.wp.7167.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7167 OF 2010 Shri. Pradip Manohar Malkar and others ....Petitioners Versus Shri. Madhukar Ramchandra Malkar and others ....Respondents ___________ Mr. N. v. Walawalkar, Sr. Advocate i/by Sudhir Prabhu for the Petitioners. CORAM: B. R. GAVAI, J. DATED : 15 TH MARCH, 2011 P.C.: By way of present Petition, Petitioners challenges the order dated 5 th December, 2009 vide which, an application filed by the Respondent No. 1 for appointment of the Court Commissioner came to be allowed. 2. In Special Civil Suit No. 632 of 1994 for partition the dispute has been amicably settled and a preliminary decree has been ssm 2 902.wp.7167.10 passed. 3. The Respondent No. 1 contending therein that as per the said decree, the Defendant Nos. 4 to 8 were required to make new construction of 298.3 sq. meters on the suit site and further contending that the construction made by the said Defendant was not in accordance with compromise decree, an application came to be made for appointment of Court Commissioner. The said application is resisted by the present Petitioners contending that the construction was in accordance with sanction of Municipal Corporation and as such the appointment of Court Commissioner was not necessary. 4. The learned Trial Court observed that in pursuance of the orders passed at Exhibit 71, it was held that decree in question was preliminary decree and as such the execution of the same was not possible unless the direction issued by the court in the preliminary decree was complied. The learned Trial Court has found that for deciding as to whether construction carried out was in accordance ssm 3 902.wp.7167.10 with the preliminary decree or not, it was necessary that an expert like an Engineer should be appointed as a Court Commissioner. The issue involved requires inspection by an expert in the field. It therefore, cannot be said that the jurisdiction exercised by the learned trial Court is exercised in a perverse manner to warrant interference in the extraordinary jurisdiction under Article 227 of the Constitution of India. 5. The petition is, therefore, rejected. (B. R. GAVAI, J)