Report No. 54
Chapter 1F
Incidental Proceedings
Introductory
1F.1. Part 3, in the body of the Code (sections 75 to 78), deals with "incidental proceedings".
Section 75
1F.2. Section 75 deals with the issue of Commissions. We notice that one matter relating to the section was discussed in the Report on the Code,1 namely-whether the court has power to issue a commission for making inventories of account books and other articles. We see no reason why the Court should not have this power. In fact, we would go further, and invest the Court with a general power to issue commissions for the performance of all ministerial acts. Apart from this general power, we are of the view that there should be a specific provision empowering the court to issue commissions for conducting scientific inquiries, when such an inquiry is needed for determination of any issue before the court. There should also be a power to appoint commissioners to hold sales (otherwise than in execution).
1. 27th Report, note on section 75.
Recommendation
1F.2. To achieve the above object, we recommend
(i) an amendment of section 75, and
(ii) insertion of new1 rules in Order 26. The amendments will be as follows:-
Clauses (bb), (bbb) and (bbbb) may be inserted in section 75. The section will then read as follows:-
"Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-(a) and (b);
(bb) to hold a scientific investigation;
(bbb) to conduct sales of property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved;
(bbbb) to perform any ministerial act;
(c)
(d)
Order 26, rule 10A to 10C (proposed)
1. Order 26, rules 10A and 10B.
1F.3. to 1F.5. We also recommend that the following new rules may be inserted in Order 26
"10A. (1) Where any question arising in a suit involves any scientific investigation, which cannot in the opinion of the court, conveniently be conducted before the court, the Court may, if it thinks it necessary or expedient in the interest of justice issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.
(2) The provisions of rule 10 of this Order shall, as far as may be,1 apply in relation to a commissioner appointed under this rule, as they apply in relation to a commissioner appointed under rule 9.
1013. (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, conveniently be performed before the court, the court may, if it thinks it necessary or expedient in the interest of justice for reasons to be recorded, issue a commission to such person as it thinks fit, directing him to perform that act and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be,1 apply in relation to a commissioner appointed under this rule, as they apply in relation to a commissioner appointed under rule 9.
10C. (1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, if it thinks it necessary or expedient in the interest of justice, for reasons to be recorded, issue a commission to such person as it thinks fit, directing him to conduct such sale, and report thereon to the court.
(2) The provisions of rule 10 of this Order shall, as far as may be,1 apply in relation to a commissioner appointed under this rule, as it applies in relation to a Commissioner appointed2 under rule 9.
(3) Every such sale shall be held, as far as may be in accordance with the procedure prescribed for sales of movable property in execution of a decree."
1. Provision annexed to Order 26, rule 9 may he unnecessary in regard to the new rule.
2. Section 75 to be amended separately.
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