⚗️ Part III · Incidental Proceedings (Commissions) — Mind Map (§§ 75–78) ↗

CPC, 1908 · Part III · Incidental Proceedings · Commissions

Power of the Court to Issue Commissions

Some things a Court cannot conveniently do in open court — examine a distant witness, inspect a site, take complex accounts, divide property. Section 75 lets the Court delegate such a task to a commissioner by issuing a commission, for seven defined purposes.

§ 75

How to read Section 75

This section opens Part III — Incidental Proceedings. A “commission” is the Court’s way of reaching outside the courtroom to get something done through an appointed person, on the Court’s behalf.

What a commission is

A formal order delegating a defined task to a commissioner — because the Court cannot, or should not, do it itself in open court (a distant witness, a site inspection, accounts, a partition).

The seven purposes

A commission may issue to (a) examine a person, (b) make a local investigation, (c) take accounts, (d) make a partition, (e) hold an expert investigation, (f) sell perishables, or (g) do a ministerial act.

Conditions & the 1976 additions

The power is hedged — “subject to conditions and limitations as may be prescribed” (worked out in Order XXVI). Clauses (e), (f), (g) were added in 1976.

The bare Act

Section 75 · verbatim

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;

(d) to make a partition;

Clauses (e)–(g) — inserted 1976 ¹

(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.

Before 1-2-1977

A commission could issue for four purposes only — (a) examine a person, (b) local investigation, (c) accounts, (d) partition.

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From 1-2-1977 · Act 104 of 1976, s.26

Three modern purposes added — (e) expert investigation, (f) sale of perishables in custody, (g) any ministerial act.

Footnote

1. Clauses (e), (f) and (g) ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977). The detailed procedure for every kind of commission is in Order XXVI.

Key terms decoded

Commission

A formal order by which the Court appoints a person (a commissioner) to carry out a defined task on its behalf and report back.

Subject to conditions and limitations as may be prescribed

The power is not free-standing — it operates within the rules (chiefly Order XXVI) that prescribe when and how a commission may issue.

(a) To examine any person

To record the evidence of a witness who cannot conveniently attend court — e.g. one who is ill, abroad, or otherwise exempt.

(b) Local investigation

An on-the-spot inspection of property or a place — to clarify a matter in dispute (boundaries, condition, market value) that the Court cannot see from the bench.

To go through and settle complicated accounts between the parties — work better done by an expert than in open court.

(d) Make a partition

To divide property by metes and bounds among co-owners in a partition suit — the physical splitting that a decree directs.

(e) Scientific, technical or expert investigation

(1976) To obtain specialised findings — forensic, engineering, medical or other expert inquiry the Court itself cannot perform.

(f) Speedy and natural decay

(1976) Property in the Court’s custody that will perish if held — e.g. fruit, perishable goods — may be sold by commission before the suit ends, to preserve its value.

Pending the determination of the suit

Before the case is finally decided — the perishable sale (f) is an interim step taken while the suit is still alive.

(g) Ministerial act

(1976) A routine, non-judicial task involving no exercise of judgment — e.g. collecting figures, drawing up a document — that can be delegated.

The picture — one power, seven purposes

The Court does not leave the courtroom — it sends a commissioner. The four original purposes (a)–(d) were joined in 1976 by three modern ones (e)–(g): expert evidence, sale of perishables, and ministerial acts.

Section 75, clause by clause

A single chapeau and seven alternative purposes. The seven are options, not steps — the Court picks whichever the case needs.

The chapeau

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

The enabling words: the power is discretionary (“may”) and conditioned — it operates only within the prescribed rules (Order XXVI). What follows are the purposes for which it may issue.

Purpose (a)

to examine any person;

To record evidence outside court — typically a witness who cannot attend (ill, abroad, exempt). The commissioner takes the testimony and returns it.

Purpose (b)

to make a local investigation;

An on-site inspection to elucidate a disputed matter — boundaries, possession, condition, value — that cannot be judged from the bench.

Purpose (c)

to examine or adjust accounts; or

To work through and settle complex accounts between the parties — expert, detailed work delegated to a commissioner.

Purpose (d)

to make a partition;

To physically divide property among co-owners by metes and bounds, giving effect to a partition decree.

Purpose (e)1976

to hold a scientific, technical, or expert investigation;

Added in 1976 to harness expert inquiry — forensic, engineering, medical — the kind of specialised fact-finding modern litigation needs.

Purpose (f)1976

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;

Added in 1976: perishable property held by the Court would lose its value if kept — so it may be sold before the suit ends, the proceeds standing in its place.

Purpose (g)1976

to perform any ministerial act.

Added in 1976 as a catch-all for routine, non-judgmental tasks — work that involves no exercise of judicial discretion and can safely be delegated.

Connected provisions

Section 75 opens the Commissions chapter of Part III; §§ 76–78 carry it forward, and the working procedure for every commission lives in Order XXVI.

§ 74 ←Resistance to executionThe previous section — the close of Part II (Execution); § 75 begins Part III.

§ 76 →Commission to another CourtWhen the person or thing is outside the Court’s own jurisdiction, the commission is sent to another Court.

§ 77Letter of requestThe route used in place of a commission to examine a person residing outside India.

§ 78Commissions issued by foreign CourtsHow commissions from courts outside India are executed here.

Apply the section — four quick checks

1 A key witness is too ill to come to court. How can her evidence be taken? By a commission to examine her — § 75(a).

2 A boundary dispute needs an on-the-spot inspection of the land. Which purpose applies? (b) local investigation — the commissioner inspects and reports.

3 A consignment of fruit is in the Court’s custody and will rot before the suit ends. Can it be sold now? Yes — § 75(f) (added 1976): sale of property subject to speedy and natural decay, pending the suit.

4 Were clauses (e), (f) and (g) always part of § 75? No — they were inserted by the 1976 Amendment (w.e.f. 1-2-1977); originally only (a)–(d) existed.

Part III · Incidental Proceedings · Section 75 — Power of the Court to issue commissions.