A.K. Bhandari, Sr. Counsel with Vaibhav Bhargava & Nitin Jain, for Respondents

Hon'ble BHAGWATI, J.—Since all the aforesaid three writ petitions arise out of one and the same impugned order, therefore, arguments have been heard together and they are being disposed of by this common order.

2. Challenge in these writ petitions is to the order dated 26.11.2008, whereby the Additional District Judge No.1, Ajmer dismissed the application filed by the appellants-petitioners under Order 26 Rule 9 readwith Section 107 and 151 CPC.

3. Learned counsel for the petitioner canvassed that the property described in the suit as also in the decree does not correspond to property for which execution has been filed. The boundaries of both the properties are distinct. Hence, with a view to ascertain the actual property about which the decree of eviction has been passed by the trial court, it has become necessary to appoint a commissioner, who may prepare the report after making a local investigation of the property on site. The executing court sans assigning any cogent reason arbitrarily dismissed the objections raised by the petitioner on an application filed under Order 21 Rule 97 CPC.

4. E Converso, the learned counsel for the respondents decree holder defended the impugned order and stated the same to be just and proper, which did not warrant any intervention. Learned counsel further argued that the petitioner did not file any such application for appointing Commissioner before the executing court and now in appeal, he can't be permitted to make such a prayer in appeal. Thus, the writ petition deserves to be dismissed.

5. Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order, it is noticed that in suit for eviction, on 17.12.1985 a decree came to be passed in favour of the respondents-decree holders. During the execution proceedings of the decree, the petitioners filed an application under Order 21 Rule 97 CPC raising objection with regard to the decree. The learned executing court dismissed the said application of the petitioners vide order dated 30.11.2006. Being aggrieved with the same, the petitioners preferred an appeal before the appellate court. During the pendency of the appeal, the petitioners filed an application under Order 26 Rule 9 readwith Section 107 and 151 CPC. The learned appellate court dismissed the said application observing that if at the appellate stage Commissioner was appointed, it would amount to collection of evidence.

6. It is relevant to record the provisions of Order 26 Rule 9 CPC, which envisages thus:

"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."

7. It is pertinent to note that a bare perusal of the above provisions of Order 26 Rule 9 clearly suggests that it is the discretion of the Court to appoint Commissioner and if the court deems a local investigation to be requisite or proper for elucidating any matter in dispute, it can direct the appointment of a Commissioner for such investigation and report thereon to the court. In the instant case, the application is found to have been filed by the petitioners for appointment of Commissioner with a view to collection of evidence. Further, the petitioner did not file such application under Order 26 Rule 9 CPC before the executing court. Now, he has filed this application with a view to procrastinate the execution proceedings and further with a design to frustrate the decree. The appellate court is found to have dealt with all these aspects ad-longum and passed the impugned order, with which I am in unison and finally concur.

8. It has been consist

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