1. In execution of a decree for recovery of property an order was passed making the defendant liable for waste. The order was based on the report of a Commissioner who inspected the property at the time when the Amin delivered possession to the decree-holder. The defendant appealed to the District Court from this order but the appeal was dismissed and he has preferred this second appeal.



2. The decision of the court below is attacked on the ground that no notice was issued to the defendant before or after appointing the Commissioner. The fact that no notice was given to the defendant who had already entered appearance was not disputed. The Commissioner also failed to give notice to the defendant. R.18 of O. XXVI imposes a duty on the Court to give notice to the parties. According to the Travancore Civil Courts Guide, the court had to ask parties to nominate a commissioner in the first instance. The records of the case show that the commissioner was appointed without even an application in that behalf. The decree holder applied on 6.11.1122 by CMP 13242 to issue a Commission. This was granted but the report submitted by him was set aside on 14.12.112

2. Thereupon the decree-holder made another application on 16.12.112

2. For the issue of a commission, as C.M.P. 15888. On 21-12.1122 the execution Court passed an order to serve copy on the opposite side and posted it to 27.12.1122 for hearing. On that day there was an order "copy not served. Not pressed. Rejected". No other application appears to have been filed for this purpose. The order issued just before the date of delivery of possession appears to have been passed on a memo filed by the decree-holder. This procedure cannot but be characterised as irregular. There was no impediment in giving notice at least to the defendants counsel before passing the order appointing a Commissioner or at any rate after the appointment. The Travancore High Court had pointed out in several decisions that it was improper to get such reports behind the back of one of the parties to a litigation. The Commissioner was not examined by the decree-holder. Although it is stated in the report that the defendant was present when the Commissioner inspected the property, I have no hesitation in holding that a decision based on this report is unsustainable. The Commissioners report obtained in contravention of statutory requirements has to be set aside.

In the result I set aside the decision of the Courts below, allow the second appeal and remand the case to the execution court for disposal in accordance with law. Both sides will be at liberty to adduce evidence. The parties will bear their costs.

Allowed.