Whether the order of appointment of court commissioner can be challenged in appeal from decree?

  An order appointing a Court Commissioner can generally be challenged in the appeal from the decree, if that interlocutory order affected the decision of the case. The relevant provision is Section 105 CPC, because an order appointing a commissioner is ordinarily not an independently appealable order under Order 43 Rule 1 of CPC.

Relevant provision

Section 105 CPC says that, save as otherwise expressly provided, no appeal lies from an order made by a court in the exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect, or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.

So the Code draws a clear distinction: if a particular interlocutory order is not separately appealable, its legality is not lost forever. It can still be attacked later in the appeal against the final decree, provided that the order has materially affected the decision.

Application to commissioner order

An order appointing a Court Commissioner is usually passed under Order 26, especially Rule 9 in local investigation matters, and such an appointment order is ordinarily not listed as an appealable order in Order 43 Rule 1.

Therefore, the normal remedy is not a separate appeal against the appointment order, but a challenge in the appeal against the decree under Section 105 CPC by showing that the appointment, manner of execution, report, or reliance on it caused prejudice and affected the judgment.

How to frame the argument

In first appeal from decree, the aggrieved party may argue that:

• the commissioner ought not to have been appointed at all;

• the commissioner was appointed for collecting evidence, which is impermissible;

• proper procedure under Order 26 was not followed;

• the report was defective or objections were not properly decided;

• the trial court wrongly relied on that report while passing decree.

But a mere procedural complaint is not enough. The appellant must connect the error with the decree and show that the order affected the decision of the case.

Important qualification

If the order is of such a kind that the Code gives a separate appeal, then the matter is different. But in the case of appointment of commissioner, the usual position is that it is not independently appealable under Order 43 Rule 1, so Section 105 becomes the governing provision. Also, if no prejudice is shown, the appellate court may not interfere merely because a commissioner was appointed. Appointment of commissioner is generally treated as a discretionary procedural step.

Interview-ready answer

You can answer in interview like this:

An order appointing a Court Commissioner is ordinarily not separately appealable under Order 43 Rule 1 CPC. However, if the final decree is appealed, such interlocutory order can be challenged under Section 105 CPC, provided the appellant shows that the order suffered from error, defect, or irregularity and that it affected the decision of the case. Therefore, the proper provision is Section 105 CPC read with Order 26 of CPC.

One-line memory formula

No separate appeal, but challenge in decree appeal if it affected the case — that is Section 105 CPC.