AI Structured Summary
Not yet generated for this judgment
Judgment
Adami, J.—The petitioner instituted a suit against the opposite party on the basis of a mortgage bond dated the 21st August, 1917. The reply of the defence to the plaint was that the petitioner had been in possession of a portion of the mortgaged property and had satisfied the mortgage debt out of the usufruct of the property. The opposite party defendants asked that a Commissioner should be appointed. It is not clear for what purpose the Commissioner was to be appointed, for the writ of commission is not on the record.
The learned Subordinate Judge ordered a commission to issue and appointed a Commissioner. Thereafter the present petitioner objected to the issue of the commission before the Subordinate Judge who succeeded the Subordinate Judge who had directed the commission to issue. The Subordinate Judge rejected the petition of the petitioner and held that the Commissioner should proceed to carry out the commission.
Before us it is objected that the questions to be decided were whether the bond was a usufructuary mortgage bond and whether the petitioner had in fact been in possession of the property, and it would seem that the work the Commissioner was to do was to inquire as to the possession of the petitioner. As I have said before, we have not the writ before us and we do not know what instructions were issued to the Commissioner but Mr. Janak Kishore agrees that if the Commissioner merely inquires into the amount of the profits from the mortgaged lands there will be no objection to the Commissioner proceeding, otherwise the Commissioner would not be empowered to take evidence as to the plaintiff''s possession or the extent of that possession.
It is clear that the lower Court could not delegate all its judicial powers to the Commissioner and that the most that the Commissioner could do would be to investigate and report on the profits arising from the mortgaged lands during the years in suit.
With a direction, therefore, that the Commissioner''s inquiry should be confined to this investigation as to the profits from the lands, the order of the lower Court will be upheld and the Commissioner will be directed to continue his investigation in the direction which I have stated.
There will be no order for costs.
Kulwant Sahay, J.
I agree.