under sub-rule (1) of Rule 10, of Order XXVI of the Code of
Civil Procedure . This Court was concious of this fact that ... Masjid was built after demolishing a Hindu temple.
Relevant extract of the order is as under :-
"So we order that this ASI report shall
filed by the petitioner/plaintiff for appointment of Commissioner under Order XXVI Rule 9 of C.P.C . to make local inspection of the property ... lower court has failed to exercise the jurisdiction under Order XXVI Rule 9 of C.P.C . and further that the lower court
accepting Exhibit-F and
Exhibit-4C, which are decrees of the Civil Courts and in both
the aforesaid documents plot No.1284 is mentioned which ... XXVI of the Code of Civil
Procedure , which contains power of the Court to issue
commissions and procedure thereof, requires that the Court
should order
best be had from the spot.
12. The object of Order XXVI Rule 9 C.P.C ., is
not to assist a party to collect ... Commissioner at the spot. Therefore, as contemplated
under Rule 9 to Order XXVI C.P.C ., this Court deems
that a local investigation
And His Brother And Sisters Partitioned ... vs No.1 Has Acquired The Said Property As
perusal of Order XXVI, R. 13 C.P.C . shows that
it comes into operation after a preliminary
decree for partition has been passed ... think the decree passed by the civil Court
should be treated as a final order for effecting
a partition. It is true that the decree
make further inquiry or appoint a Commissioner under Order XXVI, Rule 13, Civil Procedure Code, to carry out its directions. After such inquiry ... preliminary decree. It is true that in Order XX, Rule 18(2), of the Code of Civil Procedure , the decree is not expressly described
most convenient way of effecting partition. But the Civil Procedure Code in Order XXVI, Rule 14, Clause 1, empowers the Court to authorise the Commissioner
Court took up application filed by defendants under Order XXVI
Rule 9 of CPC and appointed Court Commissioner as sought in
the application ... parties led their
evidence. Application is filed under Order XXVI Rule 9 of CPC for
appointment of Commissioner before commencement of trial
sending the same for scientific
examination invoking Order XXVI Rule 10A of CPC by citing the
Judgment of Calcutta High Court ... Another, wherein it is held that the exercise
under Order XXVI Rule 10A of CPC , is always subject to the discretion
of Court
