JUDGMENT
G.B. Pattnaik, J.
1. Plaintiff is the appellant against a con- firming judgment in a suit to set aside the auction sate held in Execution Case No. 128 of 1975 and for recovery of possession.
2. The plaintiff’s case, in brief, is that Ac. 1. 07 decimals of land in Mouza Rampur had been allotted to the plaintiff’s share in the partition suit bearing No. O.S, No. 70 of 1965-1. The said suit on being transferred to the Munsif, Bhadrak numbered as O.S. 168/66-I. The plaintiff had no knowledge about the aforesaid suit as she was staying with her son-in-law but she was informed by one Sudharnani Das that her property had been auctioned and sold in the Court of the Subordinate Judge, Bhadrak. The plaintiff then came to Bhadrak and made some enquiry and found that for realisation of the commissioner’s fee in the aforesaid partition suit an execution case had been levied bearing Execution Case No. 128/75 and in that execution proceeding the property has been sold and purchased by defendant No. 1 in the Court sale. It is averred in the plaint that she was an old Pardanashin helpless lady who was staying with her son-in-law and had no notice about the dues of the commissioner nor was she ever called upon to deposit the fees of the survey-knowing commissioner. It was further alleged that in the Execution proceeding the property had not been attached and yet the property was put to sell. According to the plaintiff’s case she was totally ignorant about the execution case having been levied for realisation of the commissioner’s dues and no notice of the said execution proceeding had ever been served upon him. According to the plaint case defendants 3 and 4 are grossly enemical towards the plaintiff and have been trying to drive out her of the village and, therefore, they gained over the Court peon and got false report prepared in connection with the service of notice in the execution case as well as in the matter of attachment and sale proclamation and the Court sale was accordingly vitiated being tainted with fraud. With these allegations she filed the suit for the relief as already stated.
3. Defendant No. 1, the auction purchaser contested the suit alone by filing a written statement. The plaint allegations were denied and it was contended that the suit is barred by principle of res judicata as well as by law of limitation. According to defendant No. 1 the plaintiff knew about the execution case as well as attachment of property and sale but yet had not taken any steps in contest at any stage of the execution proceeding and she was not an illiterate pardanashin lady and in fact when Court peon offered notice to her she did not accept the same knowing fully well the contents thereof. The other defendants did not contest and were set ex parts.
4. On these pleadings the trial Court framed four issues and on issue No. 3 came to hold that the plaintiff did not take any steps to deposit the fees of the commissioner (defendant No. 2) even though she came to know about it two or three days prior to the Court sale. Further she had miserably failed to establish that the sale was tainted with fraud. With the aforesaid findings the suit having been dismissed the plaintiff carried the matter in appeal.
5. The lower appellate Court on examining the sale proclamation Ext. A/1 came to hold that the service was properly effected and when the plaintiff took the plea that the service was not duly effected, it was incumbent on the plaintiff to examine the process server and establish that the notice was not duly served and that the sale proclamation was not properly made. The plaintiff never examined the process server and, on the other hand, defendant No. l examined the process server as DW 2 who categorically stated that the sale proclamation was issued by had of drums and consequently it could not be held that fraud beat been played while making the sale. With the aforesaid findings the appeal having been dismissed and the judgment and decree of the trial Court having been confirmed, the present Second Appeal has been preferred.
6. Mr. Ray the learned counsel for the appellant raises two contentions in assailing the* judgments and decrees of the two Courts below :
(i) That the order of the commissioner to pay his cost after issuance of commission by Court does not amount to a decree and, therefore, cannot be executed as a decree and consequently the sale in question is without jurisdiction ;
(ii) The findings of the forums below that there has been due service of notice is vitiated as two material and important documents Exts. 6 and 6/A have not been taken into account.
Both these contentions require a careful examination of the law as well as the relevant documents.
7. So far as the first contention of Mr. Ray is concerned. Order 26, Rule 15 of the Code of Civil Procedure deals with expenses of commission to be paid into Court and that provision clearly states that before issuing any commission the Court may order such further sums as it thinks fit and reasonable for the expenses of the commission to be within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued. Obviously the commission had not been issued at the expenses of the plaintiff nor before issuing any commission the Court had directed the plaintiff to pay the cost of the commission. Under the Orissa amendment even the Court is entitled to order for payment of such further sums to be paid from time to time by either party as the Court may consider necessary. But in the case in hand it appears that the Court had not issued any order but on the other hand, the commissioner himself directed the plaintiff to pay his remuneration. Therefore, such an order is not an order within the ambit of Rule 15 of Order 26, Civil Procedure Code. Whether an order of the Court directing deposit of fees to the Commissioner is capable of execution or not has come up for judicial determination and there has been divergence of views. The Full Bench of Sind Chief Court reported in AIR 1947 Sind 1 (Valji Harji v. Ravishankar Chhaganlal and Ors.) considered the provisions of Order 26, Rule 15 and Sec.36, CPC and held that when a Court has ordered a plaintiff to deposit a further sum for the expenses of the Commissioner after the commission has issued and the paintiff declines to do so, the Court cannot enforce its order as a decree. The Madras High Court m the case of Venkatanarasimhulu and Ors. v. Narasimhamurti and Anr., Madras Law Journal (Vol. X) 241 also came to the conclusion that the order for payment of fees to the Commissioner is not an order which can be exe- cuted at the instance of the Commissioner as if it were a party to the decree. The Patna High Court, however, has taken a contrary view in the case of Jadubir Chaudhury and Ors. v. Smt. Sumangali Devi and Ors. (AIR 1976 Patna 293) and has held that in view of Section 36, CPC the direction of the Court in regard to the deposit of the Commissioner’s fee is executable. But as stated earlier the divergent views are in relation to an order of the Court directing payment of cost of commissioner. But when the Court had not passed any order and it is the commissioner who himself called upon a particular party to pay some money towards his expenses the said order by no stretch of imagination can be held to be a decree so as to be executable and in that view of the matter, sale of the property or execution of the said order is without jurisdiction. The two Courts below committed gross error of law in holding that the said order was executable. The first contention of the learned counsel for the appellant must succeed.
8. Even so far as the second contention is concerned, I find ample force in the same. The finding of the two Courts below that there has been due service of notice is wholly vitiated as two most important documents which may have a vital bearing on the question posed have not been considered namely, Exts. 6 and 6/A and non-consideration of these documents vitiates the ultimate conclusion. But it is not necessary for me to delve further into the matter in view of my conclusion on the first question, in the premises, as aforesaid, the impugned judgments and decrees of the two Courts below are set aside and the plaintiff’s suit is decreed. The Second Appeal is allowed. There would be no order as to costs.
