- (1.) THE applicant is a judg ment -debtor and the opposite party is a de cree -holder. The decree -holder had origi nally applied for delivery of possession through an amin. Subsequently when the case was transferred to the Court of Addi tional Civil Judge it was prayed that posses sion be effected through a Commissioner. The Additional Civil Judge granted the prayer and an Advocate Commissioner was appointed to effect delivery of possession. The order was challenged in revision, and it was contended that the executing court was not competent to effect delivery of possession through a Commissioner. Reli ance was placed on Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218. The learned Ilnd Additional District Judge dismissed the revision holding that the case referred and relied by the revisionists was distinguishable. Hence this revision.
(2.) THE question involved in this revision is whether delivery of possession could be effected through a Vakil Commis sioner. The learned counsel for the appli cant has contended that the power and jurisdiction of the court to issue commis sion is limited to purposes enumerated in Sections 75 to 78 of C.P.C. His further contention is that Section 141 of the Civil Procedure Code being limited to suits even power to appoint Commissioner given tinder Section 75 and Order 26, C.P.C. will not be available to executing court. Section 141 mentions that the procedure provided in the Code of Civil Procedure in regard to suit shall be follow ed as far as could be made applicable in all proceedings in any court of civil juris diction. Proceedings in any court of civil jurisdiction refer only to original matters and do not include proceedings in execu tion vide Dokku Bhushayya v. Katragadda Ram Krishanayya, AIR 1962 SC 1886.
(3.) THE question, therefore, is whe ther irrespective of Section 76 and Order 26, C.P.C. the executing court had jurisdic tion to direct delivery of possession through a Commissioner. Order 21 deals with the procedure for execution of decrees and orders.' Order 21, Rule 35, C.P.C. authorises the Court to deliver possession of immovable property. Sub -clause 3 of Order 21, Rule 35, C.P.C. reads as under: "Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving rea sonable warning and facility to any wo man not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act neces sary for putting the decree -holder in pos session." This sub -clause is indicative of the fact that the executing court is competent to effect delivery of possession through its officers. An Advocate is not an officer of the Court till he is appointed a Commis sioner and once he is appointed a Com missioner he becOrneS an. officer of the Court as long as his authority to act as a Commissioner continues. Order 21, Rule 105, C.P.C. as amended by this Court is also pointer of the fact that a Commis sioner Can be appointed fOr special reasons. It reads as Under: "Every attachment of movable pro perty under Rule 43, of negotiable instru ment under Rule 51, and of immovable property under Rule 54, shall be, made through a civil court Amin or bailiff, un less special reasons render it necessary that any other agency should be employed, in which case those reasons shall be stated in the handwriting 0f the presiding judge himself in the Order for attachment." If, therefore, the attachment could be effected through an officer of the cOurt there is no justification why the delivery of possession which is dependant on the passing of the decree cannot be effected through a Commissioner. There is nothing in the General Rules (Civil) or in the Code of Civil Procedure to the contrary. Reli ance has been placed by the applicant On the AIR 1961 SC 218 wherein it was laid down: "Court has no inherent powers under Section 151 to appoint a Commissioner to seize account books in the possession of the plaintiff, upon an application by the defendant that he has apprehension that they would be tampered with." The facts of this case are distinguishable from Padam Sen's case. ;