A Commissioner for taking accounts is a Court within the meaning of the Code of Civil Procedure, 1859, and a successor Commissioner can proceed with the reference on the evidence recorded by his predecessor.

JUDGMENT - 1. The question that is raised on his summons is as to whether the Commissioner appointed by this Court to whom a partnership suit is referred for the purpose to taking accounts cf the partnership is a Court within the meaning of the Code of Civil Procedure, so that where such Commissioner is prevented by death, transfer or other cause from concluding the reference, his successor may deal with the evidence recorded by the former as if it had been recorded by himself and proceed with the reference from the stage at which his predecessor had left it under the provisions of Rule 15 of Order 18 of the Code,

2. It was contended by Mr. Pandya, the learned counsel for the defendants, that the office of the Commissioner was a part of this High Court and that inasmuch as by virtue of the provisions of Rule 3 of Order 49 of the Code, some of the Rules of Order 18 including Rule 15 did not apply to the Chartered High Courts in exercise of their Ordinary or extra-ordinary original civil Jurisdiction, those Rules would not also apply to the Commissioner to whom a partnership suit was referred for taking accounts of that partnership.

3. Now, the Letters Patent of this Court do not contemplate and specifically provide for the appointment of any Commissioner for taking accounts or otherwise as such Clause 8 of the Letters Patent which provides for the appointment of officers of the Court runs as follows:--

"And We do hereby authorise and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal, from lime to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by the Governor General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice, and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent. ...."

This clause clearly refers to the appointment of officers charged only with ministerial duties to help in the administration of justice by the High Court. The Commissioner appointed by this Court from time to time is obviously on of such officers appointed under this clause of the Letters Patent and as such officer he would have no Judicial powers of any kind whatever.

4. Then, clause 37 of the Letters Patent under the heading "Civil Procedure" provides as follows:--

"And We do further ordain that it shall be lawful for the said High Court of Judicature at Fort William in Bengal, from time to time, to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdictions, respectively: Provided always that the said High Court shall be guided in making sucn rules and orders as far as possible, by the provisions or the Code of Civil Procedure, being an Act passed by the Governor-General in Council, and being Act No. VIII of 1859 and the provisions of any law which has been made amending or altering the same, by competent legislative authority for India".

By virtue of this clause, it will appear, the High Court is entitled to make rules and orders for that purpose of regulating all proceedings in civil cases which may be brought before it under several of its jurisdictions. The clause, however, provides that in making such rules and orders, the High Court shall be guided, as far as possible, by the provisions of the Code of Civil Procedure.

5. Now, Order 26, rule 11 of the Code of Civil Procedure provides (or the issue of a commission to such person as the Court things fit directing him to examine or adjust accounts in any suit in which an examination or adjustment of accounts is necessary. My attention was not drawn to any rule made by the High Court on its Original Side which contemplates the issue of such commission or the appointment of a commiss

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