Appointment of local commission order 26/
section 75, 132, 135
sometimes, a witness may be unable to attend the
court due to sickness or due to public interest or
he may be living beyond the local limit of the
court, in such situation, the court may appoint a
commission
Relevant provision
order 26/ section 75, 132, 135
a body of authorized persons to perform certain
services
Purpose to issue local commission
1) examination of witness
2) local investigations
the court may issue commission to any person
to enquire into a dispute or ascertain marked
valve of property such a person is called
commissioner
3) examine accounts
4) to make partitions
5) to conduct sale of property
6) to perform any ministerial act
it may relate to accounting calculation etc
Power of commissioner
1) examine parties
2) record evidence
3) examine documents
4) ascertain value of property
5) to assess cost
Objection to the report of commission,
the parties to the suit may object to the report
of commission
Discretion of the court
may allow or refuse the issuing of
commission
Note: the commission does not perform any
judicial function. It is a civil court but can,t
impose penalty it can,t either decide disputes
between parties
Not conclusive report
the report of commission is not conclusive
Expenses of the commission
The expenses of the commission shall be
borne by the parties who applied for it.
Consent decree section 96 (3) Not appealable
Relevant provision
Section 96 (3) order 23 R 3
A consent decree is passed with the consent of parties
Such a decree in not the outcome of court adjudication but as the
outcome of parties
Essential ingredients of parties
1. compromise
it should be proved to the satisfaction of the court that
there has been a compromise
2. adjustment of suit
the adjustment should be of whole or part of the suit
3. satisfaction of the court
the court must be satisfied regarding the compromise of
the parties
4. lawful agreement or compromise
the compromise must be lawful
5. recording of compromise
the compromise must be induced into writing
No appeal can be brought against the consent degree
where appeal not barred
1. degree not passed with consent of parties
2. appeal against validity / lack of jurisdiction
3. dispute regarding nature of compromise
4. not satisfies the requirement of order 23 (3)
other remedies
i. review 114
ii. revision 115
iii. inherent powers of court 151
iv. 12 (2) where consent obtained through fraud /
misrepresentation