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J.P. Fernandez Vs. P.D. Rodrigues - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1313 of 1922
Judge
Reported inAIR1924Bom231; (1923)25BOMLR280
AppellantJ.P. Fernandez
RespondentP.D. Rodrigues
Excerpt:
.....in accounts-review by commissioner of his decision-civil procedure code (act v of 1908), order xlvii, rule i-party aggrieved can file exceptions to report-summons at interlocutory stage not permissible.; a commissioner for taking accounts has power to revise his finding on an item in the accounts directed to be taken by him under an order of reference. but this power needs he exercised only on grounds similar to those mentioned in order xlvii, rule i, of the civil procedure code.; if, however, the commissioner re-opens the inquiry on grounds which are not proper, the party aggrieved can object only by way of exceptions to the report. it is not open to the party to take out summon a at an interlocutory stage. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac..........that a review can only be granted under section 151 of the code of civil procedure or under order xlvii, rule i, of the code, that section 151 did not apply to proceedings before the commissioner, and that order xlvii, rule i, did not apply as a review under that order can only be granted from a decree or order of the court. on the other hand, it was contended for the defendant on the authority of the ruling in laxmibai v. hussainbhai i.l.r. (1619) 41 bom. 719 : 18 bom. l.r. 798 that once a reference has been made to the commissioner the court has no control over the proceedings until the commissioner has made his report except in certain cases, and that the present case was not one of them.3. it seems to me that the summons is misconceived. the expression 'review' in the warrant is not.....
Judgment:

Mulla, J.

1. The question raised by this Summons is whether the Commissioner for taking accounts has power to review his findings on an item in the accounts directed to be taken by him under an Order of Reference. [After setting out the facts as above his Lordship proceeded].

2. It was contended on his (plaintiff's) behalf that a review can only be granted under Section 151 of the Code of Civil Procedure or under Order XLVII, Rule I, of the Code, that Section 151 did not apply to proceedings before the Commissioner, and that Order XLVII, Rule I, did not apply as a review under that Order can only be granted from a decree or order of the Court. On the other hand, it was contended for the defendant on the authority of the ruling in Laxmibai v. Hussainbhai I.L.R. (1619) 41 Bom. 719 : 18 Bom. L.R. 798 that once a reference has been made to the Commissioner the Court has no control over the proceedings until the Commissioner has made his report except in certain cases, and that the present case was not one of them.

3. It seems to me that the summons is misconceived. The expression 'review' in the warrant is not used in its technical sense. The Commissioner has no power to 'review' either under Section 151 or under Order XLVII, Rule I. It must, however, I be remembered that the Commissioner may, in his discretion, record his finding on each item of the account objected to during the progress of the reference or he may record his findings after he has heard evidence on all objections and surcharges. He is not bound to record his finding on any one objection before he proceeds to deal with the next. But if he does so, it is erroneous to suppose that his finding on any of the objections is final. He may, on proper grounds, re-open the inquiry into any one or more of the items before his report is made. Until then he decides nothing that is final and conclusive. But where every opportunity is given to a party to prove his objection to a particular item, and the Commissioner has after hearing the parties recorded his finding, it is highly undesirable that he should re-open the enquiry merely because he is invited to do so by the party. There must be a finality to the enquiry, and if he does re-open the enquiry, it must be on grounds similar to those 9 mentioned in Order XLVII, Rule I ; not because the provisions of Order XLVII, Rule I, apply to proceedings before him, but because that rule affords the best guide in a matter of this kind. If he re-opens the inquiry on grounds which are not proper, the party aggrieved can object only by way of exceptions to his Report, The Commissioner in issuing the present warrant has acted in accordance with the long-standing practice of his office. I see no reason to put a stop to the practice. The balance of convenience also is on the side of the existing practice. I think greater hardship will arise and more costs will be incurred by discontinuing the practice than by leaving matters as they are. It was assumed at the argument of the summons that High Court Rule No. 484 applies to the case. I doubt very much whether it does. The summons is discharged, costs to be costs in the cause.


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