Whether Criminal court can appoint Advocate commissioner for recording of evidence?

As per Section 285(1) Cr.P.C no Advocate could be appointed as Commissioner for recording the evidence of witness.

11. Section 286 Cr.P.C is as follows:

286. Execution of commissions.

Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code.

As per Section 286 Cr.P.C., either the Metropolitan Magistrate or Judicial Magistrate may be appointed as Commissioner for taking down the evidence of the witness.

IN THE HIGH COURT OF MADRAS

Criminal Revision Petition No. 1330 of 2006

Decided On: 01.09.2009

 Pankajam Ramaswamy Vs. M.R. Elangovan

Hon'ble Judges/Coram:

T. Sudanthiram, J.

Print Page

Whether preliminary decree for partition can be executed?

 The final decree proceedings were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. In spite of this, the advocate appearing for the plaintiff-decree-holder in the trial Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the pt her hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police, the bailiff put the decree-holder in possession of the property and a record was accordingly submitted to the court.
Thus, the whole process of putting the decree-holder in possession of the property is vitiated. In my opinion, the execution application could not be filed before the Court, nor could the Court issue a warrant, nor could the Bailiff execute that warrant, nor could any police aid be granted by the Court. Thus, the process being vitiated, there is no justification for the decree-holder remaining and continuing in possession of the property. I would set aside the order passed by the trial Court and direct the Court to put the judgment-debtor (present petitioner) in possession of the property which he lost due to illegal action. 

Bombay High Court

Vishwasrao vs Ushabai And Anr. on 11 February, 1987

Equivalent citations: AIR 1988 Bom 392, 1987 (1) BomCR 707

Bench: S Ratnaparkhi

Print Page

Whether arbitral Tribunal can enforce its own order by appointing Advocate Commissioner/Receiver?

 To sum up the discussions as above, it has to be declared


that the Arbitral Tribunal cannot pass an order to enforce its order by



directing the Advocate Commissioner/Receiver to repossess the


vehicle from the opposite party. It is made clear that the Advocate


Commissioner or Receiver as the case may be, can be appointed for


any other purpose, but not to enforce an order of repossession


passed by the Tribunal.    Any order of repossession can only be


enforced through a civil court.

The repossession of the vehicles by enforcing the order of


the Arbitral Tribunal without the intervention of the civil court,


therefore, has to be treated as violation of Article 21 of the


Constitution of India.   
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

  WEDNESDAY, THE 16TH DAY OF MARCH 2016.
                 WP(C).No. 38725 of 2015 (M)
               
               PRADEEP K.N.
              Vs

            THE STATION HOUSE OFFICER,
              

                  A.MUHAMED MUSTAQUE, J.
                ~~~~~~~~~~~~~~~~~~~~~~~~~
                        W.P.(C).Nos.
                      38725/2015   7932/2016
                    

Print Page

Whether Advocate commissioner can be appointed for partition of house property?

 After passing the final decree, it is open to any one of the parties to initiate proceedings for passing a final decree. The Court after taking cognizance of the final decree application is obliged to proceed in accordance with Order XXVI Rule 13 of the Code of Civil Procedure. The Court would appoint an Advocate Commissioner to partition the property by metes and bounds. The Commissioner appointed for such purpose acts as the authorised officer of the Court and as such he is duty bound to distribute the property among the parties taking into account their respective shares and in the light of the direction given by the Court in the warrant of appointment on the basis of the preliminary decree. Rule 14 of Order XXVI contained a legislative mandate that the Commissioner would allot such share to the parties, meaning thereby joint property should be divided in specie and each one of the sharers should be given a specific item. Sub Rule (2) of Rule 14 of Order XXVI mandates that the Commissioner shall prepare and sign the report apportioning the share of each parties by metes and bounds. This makes the position very clear that the Commissioner is obliged to effect physical division of property into two or more shares. Since a co-owner is entitled, as a matter of right, to partition the co-ownership property, he is also entitled to claim allotment of a specified extent of property to him. The possible difficulty to the other sharers in case the property is divided into two or more shares, cannot be a ground to deny physical division of property and separate allotment to the co-owners in accordance with the share position.

Madras High Court

K. Vijayalakshmi vs K. Sashikanth 

Citation: 2015(1)CTC73, 2014-5-LW481, (2014)8MLJ272

Print Page

Can Advocate Commissioner challenge order setting aside his report filed in a suit?

Code of Civil Procedure, 1908 - Order XXVI - Can the Advocate Commissioner challenge the order setting aside his report filed in a suit and appointing another to execute the warrant of appointment? Held, The Advocate Commissioner has no right to be heard before his report is set aside and is not also a person aggrieved by the order appointing another to execute the warrant of appointment.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                         MR.JUSTICE V.CHITAMBARESH

                WEDNESDAY, THE 30TH DAYOF JULY 2014

                                    OP(C).No. 1710 of 2014 ()

                     

          B.SUBHASH,  Vs  State of kerala

Citation; AIR 2014 kerala 206

Print Page

Whether preliminary decree for partition can be executed?

The final decree proceedings were taken after the passing of the preliminary decree. We are not much concerned regarding the division of the revenue yielding estate and other moveable property. It is an admitted position that a Commissioner was appointed by the Court for effecting the partition of the house. It appears that the Commissioner on giving opportunities to the contesting parties, finalised a Scheme for partition. The report of the Commissioner was put before the Court. Objections were raised to that report by the contesting parties. The Court ultimately passed an order overruling the objections raised by the present petitioner. It is an admitted position prevailing even to-day that the Court has not yet passed the final decree. In spite of this, the advocate appearing for the plaintiff-decree-holder in the trial Court, presented a Regular Darkhast before the Court. The illegality has crept in right from the inception of this Darkhast and it pains tremendously to point out that an advocate has contributed substantially to the final outcome. During the course of this Special Darkhast, the warrant of possession came to be issued by the Court directing the bailiff to put the decree-holder in possession of the ground floor of the house, though in fact there was no decree to that effect. The Court not only issued the warrant, but on the pt her hand granted police help to the decree-holder, so that the possession could be effectively delivered to the decree-holder. With the help of police, the bailiff put the decree-holder in possession of the property and a record was accordingly submitted to the court.

Bombay High Court

Vishwasrao vs Ushabai And Anr. on 11 February, 1987

Equivalent citations: AIR 1988 Bom 392, 
1987 (1) BomCR 707

Bench: S Ratnaparkhi

Print Page