ORDER :

A. Muhamed Mustaque, J.

1. This original petition has been placed before us based on a reference order of the learned single Judge. The reference was necessitated as the learned Single Judge observed that a coordinate Bench of this Court in Francis Assissi v. Sr.Breesiya and Others [2017 (1) KLT 1041] held that a commission report can only be set aside or varied under Sub-Rule (2) of Rule 14 of Order XXVI of the Code of Civil Procedure (for short, the Code). This appears to have created a considerable amount of confusion in the District Judiciary in regard to the procedure to be adopted regarding setting aside or remitting the commission report on such application being made before the court.

2. Another learned Single Judge in a recent judgment in Yudathadevus v. Joseph [2021 (5) KHC 668] opined that the judgment in Francis Assissi's case (supra) is per incuriam and it is not a binding precedent. The learned Single Judge after adverting to all decisions in this regard, was of the firm view that the court has the necessary power to set aside the commission report or remit the commission report. The learned Single Judge also placed reliance on the earlier Division Bench judgment