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Report No. 27

Order XXVI, rule 17

The Kerala Amendment to Order XXVI, rule 17 provides, that where the Commissioner is not a Judge of the civil court, he shall not be competent to impose penalty, but such penalty may be imposed on the application of the Commissioner by the court which issued the commission. It is considered unnecessary to adopt this minor amendment.

Order XXVI, rule 18A (New)

This is new, and is intended to provide that the provisions of this Order apply to execution. Cf. the Madras Amendment, Order XXVI, rule 23. The Madras Amendment is useful, as otherwise the provisions of Order XXVI do not apply to execution1-2.

(Appointment of a Commissioner in execution for effecting partition, where the parties themselves have agreed for so effecting the partition, may be allowed)3.

1. Ramnath v. Wasudeo, AIR 1947 Nag 56, para. 4.

2. Manthiri Goudan v. Arunachalam, AIR 1940 Mad 569 (570).

3. See Nilabati v. Sukurta, AIR 1953 Ori 237.

Order XXVI, rule 19

In the Report of the Law Commission1 relating to British Statutes applicable to India, a recommendation was made for examining whether the provisions of certain Acts of Parliament mentioned in that Report should be incorporated in the Civil Procedure Code. The matter has been considered, and it is felt that the existing provisions of Order XXVI are adequate for practical purposes for dealing with requests received from foreign countries for recording of evidence. No change in the Civil Procedure Code is, therefore, suggested on this point.

1. 5th Report (British Statutes applicable to India).

Order XXVI, rule 22

Order XXVI, rule 22 provides that the provisions of certain rules shall apply to the issue, etc., of commissions issued at the instance of foreign Tribunals. The new rule proposed1-relating to questions objected to by a party should apply to such commissions also. Hence the amendment.

1. Order 26, rule 16A (proposed).

Order XXVIA (Madras)

The Madras High Court has inserted Order XXVIA, whereunder the court is empowered to issue a commission for translation of accounts and other documents which are not in the language of the court. The amendment has not been adopted, as it is considered that provision regarding translation, etc., can be made in the General rules for subordinate civil courts.

Order XXVII and suits against the Government in respect of acts of employees

In an earlier Report1 of the Law Commission, a recommendation has been made to the effect that when a suit for damages is filed against the Government in respect of any act of its employee, agent or independent contractor, the employee, etc., should be impleaded as a party to the suit. It was also stated, that any claim based on indemnity or contribution by the State may well be settled in such proceedings, as all the parties will be before the court. An amendment of the Civil Procedure Code was recommended on these lines.

The recommendation has not been carried out, as it is felt that a mandatory provision of the nature suggested is not needed.

1. First Report (Liability of the State in Tort).

Order XXVII, rule 5

The Fourteenth Report1 recommended an amendment to give the Government a minimum period of three months for filing a written statement. Compare the Madras Amendment also.

It is, however, considered unnecessary to lay down any such rigid period applicable to all cases in which the Government is a party.

1. 14th Report, Vol. I.

Code of Civil Procedure, 1908 Back

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