PART III – Incidental Proceedings (SECTIONS 75-78)

Section 75: Power of Court to issue commissions.—

Subject to such conditions and limitations as may be prescribed, the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.


Section 76:  Commission to another Court.—

(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.


Section 77: Letter of request.—

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India.


Section 78: Commissions issued by foreign Courts.—

Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of—

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

(c) Courts of any State or country outside India.


IMPORTANT CASE LAWS

1. Difference between Incidental Proceedings [Part III] and Supplemental Proceedings [Part IV]

Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378:

29. The Code of Civil Procedure uses different expressions in relation to incidental proceedings and supplemental proceedings. Incidental proceedings are referred to in Part III of the Code of Civil Procedure whereas supplemental proceedings are referred to in Part VI thereof.

31. A distinction is to be borne in mind keeping in view the fact that the incidental proceedings are in aid to the final proceedings. In other words, an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit.

32. Such a supplemental proceeding is initiated with a view to prevent the ends of justice from being defeated. The supplemental proceedings may not be taken recourse to as a routine matter but only when an exigency arises therefor. The orders passed in the supplemental proceedings may sometimes cause hardships to the other side and, thus, are required to be taken recourse to when a situation arises therefor and not otherwise. There are well-defined parameters laid down by the court from time to time as regards the applicability of the supplemental proceedings.

33. Incidental proceedings are, however, taken recourse to in aid of the ultimate decision of the suit which would mean that any order passed in terms thereof, subject to the rules prescribed therefor, would have a bearing on the merit of the matter. Any orders passed in aid of the suit are ancillary powers. Whenever an order is passed by the court in exercise of its ancillary power or in the incidental proceedings, the same may revive on revival of the suit. But so far as supplemental proceedings are concerned, the court may have to pass a fresh order.

34. An order to furnish security to produce any property belonging to a defendant and to place the same at the disposal of the court or order the attachment of any property as also grant of a temporary injunction or appointment of a receiver are supplemental in nature. The effect of such order may be felt even after decree is passed. An order of attachment passed under Order 38 of the Code of Civil Procedure would be operative even after the decree is passed. Such an order of attachment passed under Order 38 can be taken benefit of by the decree-holder even after a decree is passed. An order of temporary injunction passed in a suit either may merge with a decree of permanent injunction or may have an effect even if a decree is passed, as, for example, for the purpose of determination as regards the status of the parties violating the order of injunction or the right of a transferee who has purchased the property in disobedience of the order of injunction. The orders passed in supplemental proceedings may have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings.


2. Appointing Commissioner to assist the Court

Habibkhan v. Waman, 2011 SCC OnLine Bom 869 : (2012) 2 Mah LJ 541:  “The proposition that the Commissioner cannot be appointed to collect the evidence, need not be dilated. But, in each and every case, it cannot be said that the Commissioner appointed by the Court invoking its power under section 75 read with Order XXVI, Rule 9 of the Code of Civil Procedure is for collecting evidence. In many cases, they are meant for the assistance of the Court in arriving at the just conclusion.”


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