CR

JUDGMENT

Against Ext.P7 order, the 2^nd defendant came up. It is an order passed by the trial court refusing to set aside the report of the Commissioner submitted under Rule 10 of Order XXVI C.P.C. based on the legal position settled by a Division Bench of this Court in Francis Assissi v. Sr.Breesiya ( 2017 (1) KLT 1041 )

2. The question came up primarily is regarding the permissibility of the court to set aside or remit back a Commissioner's report submitted under Rule 9 or 10 of Order XXVI C.P.C.. The decision rendered by a Division Bench of this Court on an earlier point of time inFrancis Assissi v. Sr.Breesiya ( 2017 (1) KLT 1041 ) and subsequent decisions of a Single Bench of this Court inYudathadevus v. Joseph (2021(5) KHC 668) and a coequal Bench of this Court inLaly Joseph v. Francis ( 2023 (2) KLT 516 ) were brought to the notice of this Court. It appears that the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another ( AIR 2005 SC 752 ) and a subsequent three Judge Bench of the Apex Court inNew India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd ( AIR 2