B. K. SOMASEKHARA, J.

( 1 ) HEARD on merits. Formally admitting the revision petition.

( 2 ) THE order of the learned Subordinate Judge, Bodhan, in I. A. No. 62/1994 in O. S. No. 6/1986 dated 13-8-1996 is questioned by the 1st defendant in the suit. The matter arose with this fact matrix: a preliminary decree was passed in O. S. No. 6/1986 between the parties. Sri K. Dattatreya Rao, Advocate, was appointed as Commissioner by the Court to assess the mesne profits in regard to the suit lands from the year 1984. The commissioner warrant was entrusted to him in February, 1995. The report was submitted by the Commissioner in February, 1996 reporting that he could not assess the mesne profits from the year 1984 to 1993 as he could not get proper information. However, he was able to assess the mesne profits for the years 1993-94 and 1994-95 only regarding Khariff season. The Commissioner also made certain observations in the report in regard to the existence or otherwise of certain crops like Mango crops in the season. The learned subordinate Judge pointed out that in spite of the matter being quite old and the Commissioner was entrusted with the work one year back, he did not submit the report in regard to many matters in question on certain reasons which were not satisfactory. The learned Subordinate Judge sustained the objections of the decree-holder that no purpose would be served from the report of the Commissioner and that the services of an experienced advocate are necessary to assess the mesne profits correctly. With such observations, one Sri Sripathi Rao, Advocate, was appointed for the purpose again, directing him to execute the warrant after issuing notices etc.

( 3 ) MR. Vilas V. Afzalpurkar, learned advocate, has challenged the order on several grounds. In the first place, he contended that the reasons for appointment of second commissioner given by the learned Subordinate Judge are not proper or sufficient to appoint the second commissioner; that there is no recording of the finding that the report of the commissioner is unsatisfactory , and finally, that the learned single Judge has not examined the legal implications of appointing the second commissioner by virtue of order 26 Rule 10 of the Code of Civil Procedure, whereby the question would be whether the report already submitted by the commissioner along with the statements of the witnesses should exist are (sic. or) to be weighed out. As a whole, the learned Advocate contends that the order in revision appointing the second commissioner is totally illegal and on (sic. an) exercise of a jurisdiction in excess of the powers under Order XXVI Rule 10 of the C. P. C.

( 4 ) SRI Fazal Yousufuddin, learned advocate for the respondent, has supported the order contending that on the face of the facts, the report of the commissioner is shown to be unsatisfactory as in the first place, an unexplained belatedness in executing the warrant has been there and secondly, the commissioner entrusted with the task has expressed his diffidence to fulfil the task completely and effectively. Furthermore, the learned Subordinate judge has given plausible reason as to appointment of a second commissioner who has more experience and standing at the Bar.

( 5 ) THE order of the learned Subordinate Judge suffers from so many illegalities and infirmities in addition to exercise of the jurisdiction in excess of what is contemplated under Order XXVI Rule 10 of the Code of Civil procedure (for short, the code )- By virtue of sub-clause (sic. sub-rule) (2) of Order XXVI of Rule 10, when the Commissioner submits the report in writing and signed by him along with the evidence taken up by him, it shall be the evidence in the suit and shall form part of the record and the Court or a party, with the permission of the Court, may examine the Commissioner touching any of the matters referred to him or mentioned in the report. If the Court,for any reason, is dissatisfied with the proceedings of the commissi

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