Section 75: Power of Court to issue commissions

 

Code of Civil Procedure 

 

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

 

75. Power of Court to issue commissions.—Subject to such conditions and limitations as may be prescribed, the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

¹[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

Note 1. Ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977).

 

Code of Civil Procedure 

Commentaries:

Section 75 CPC empowers the court to issue commissions. [1] 

A perusal of the rule 10A of Order 26 shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it needs necessary or expedient in the ends of justice. The basic rationale of this provision is that the Commission is going to held in extracting the truth. There is established procedure known to law that the Commissioner's report form part of the record and the same becomes evidence as a whole in the suit.[1]

An order passed in the incidental proceedings will have a direct bearing on the result of the suit.[1] 

The Hon'ble Supreme Court held that "incidental" or "ancillary" proceedings are taken recourse to in aid of the ultimate decision of the suit and any order passed therein would have a bearing on the merit of the matter.[1][6] Whenever an order is passed by the court in exercise of its ancillary power or in the incidental proceedings, the same may revive on revival of the suit. [1][6] The expression "ancillary" means aiding; auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal.[1][7]

Commissioner whose integrity is unquestionable his elaborate report cannot be overruled by the Court. [1] [2] It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be.[1] [4A to 4E] The Commissioner's report should not be rejected except on clearly defined and sufficient grounds.[1][8]

The Commissioner's report even if accepted by itself does not however, mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by examining any other witness to counter the effect of the report.[1][3]

It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.[1][5]

Authorities:

[1] The Sunni Central Board Of Waqfs ... vs Gopal Singh Visharad [Allahabad High Court]

[2] AIR 1924 Cal.620, Amrita Sundari Versus Munshi

[3] AIR 1997 Cal.59, Amena Bibi Versus Sk.Abdul Haque

[4A] (2010) 3 SCC 732, Victoria Memorial Hall Versus Howrah Ganatantrik Nagrik Samity

[4B] State of Bihar V. Dr.Asis Kumar Mukherjee, [SC]

[4C] Dalpat Abasaheb Solunke V. Dr.B.S.Mahajan, [SC]

[4D] Central Areca Nut & Cocoa Mktg.& Processing Coop.Ltd. V. State of Karnataka [SC]

[4E] Dental Council of India V. Subharti K.K.B Charitable Trust. [SC]

[5] 1995 Supp (4) SCC 600, Misrilal Ramratan and others Mansukhlal and others

[6] 2004(6) SCC 378 Vareed Jacob v. Sosamma Geevarghese

[7] (2006) 13 SCC 136 G.L. Vijan v. K. Shankar

[8] Chandan Mull's case reported in 44 Cal WN 205 at p. 212 : (AIR 1940 PC 3, at pp. 5, 6)

Resistance to execution

 

Code of Civil Procedure Section

 

RESISTANCE TO EXECUTION

74. Resistance to execution.— Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

 

Code of Civil Procedure Section

 

Proceeds of execution sale to be rateably distributed among decree-holders

 Code of Civil Procedure Section 

DISTRIBUTION OF ASSETS

73. Proceeds of execution sale to be rateably distributed among decree-holders.—(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows :—

(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied—

First, in defraying the expenses of the sale;

Secondly, in descharging the amount due under the decree;

Thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any); and

Fourthly, rateably among the holders of decrees for the payment of money against the judgement-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have no obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

Code of Civil Procedure Section

Power for State Government to make rules as to sales of land in execution of decrees for payment of money

 

Code of Civil Procedure Section

 

 

67. Power for State Government to make rules as to sales of land in execution of decrees for payment of money. —

¹[(1)] The State Government ²*** may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interest are so uncertain or undetermined as, in the opinion of the State Government, to make it impossible to fix their value.

³[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette declare such rules to be in force, or may ²*** by a like notification, modify the same. Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.]

⁴[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

Note: 1. Section 67 renumbered as sub-section (1) by Act 1 of 1914, s. 3.

2. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, s. 2 and the Schedule, Pt. 1.

3. Added by Act 1 of 1914, s. 3.

4. Ins. by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15-3-1984).

 

Code of Civil Procedure Section

Purchaser's title

 

Code of Civil Procedure Section

 

SALE

65. Purchaser's title.— Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

¹* * * * *

Note 1: S. 66 rep. by Act 45 of 1988. s. 7 (w.e.f. 19-5-1988).

 

Code of Civil Procedure Section

 

Private alienation of property after attachment to be void

 

Code of Civil Procedure Section

 

64. Private alienation of property after attachment to be void. —

¹[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moines contrary to such attachment, shall be void as against all claims enforceable under the attachment.

²[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

Explanation. —For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Note: 1. S. 64 renumbered as sub-section (1) by Act 22 of 2002, s. 3 (w.e.f. 1-7-2002).

2. Ins. by s. 3, ibid. (w.e.f. 1-7-2002).

 

Code of Civil Procedure Section

 

Property attached in execution of decrees of several Courts

 

Code of Civil Procedure Section

 

63. Property attached in execution of decrees of several Courts.—

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

¹[Explanation.—For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]

Note 1: The Explanation ins. by Act 104 of 1976, s. 24 (w.e.f. 1-2-1977).

 

Code of Civil Procedure Section