LexSONI DINESHBHAI MANILAL AND ORS. versus JAGJIVAN MULCHAND CHOKSHI
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A SONI DINESHBHAI MANILAL AND ORS. v. JAGJIV AN MULCHAND CHOKSHI DECEMBER 14, 2007 B IS.B. SINHA AND HARJIT SINGH BEDI, JJ.] Code a/Civil Procedure, 1908: C Or XXVI r 11 and 16-Commission to examine accounts or adjust accounts-Appointment of-Held: Commissioner is competent to decide all questions raised before him, taking into consideration all aspects of the matter-He is to assist the Court-Commissioner's Report is part of record and is to be treated as evidence in the suit- On facts, objection against Commissioner's report rejected-Civil D revision application was not filed there against, thus, rejection order attained finality-Also appellant did not adduce any evidence in support <~f the objection raised though he was permitted to do so. ss. 100, 105 and Or XL!!! r I (u)---Second appeal -Maintainability E of-On facts, appeal against order rejecting objections allowed- Cross objections raised by respondent, rejected-Respondent filing second appeal-Allowed by High Court-On appeal, held: The said interlocutory orders not subjected to revision-They should not have been appealed against-If revision was filed, doctrine of merger and F s I 05 would not be applicable-Each of those orders attained finality -In view of Or XLIJI r I (u) second appeal was not maintainable- Scope of appeal u/s. I 00 narrower-Further, appellate court in exercise of its inherent jurisdiction could convert one type of appeal to other- In view of the facts of the case, interference under special leave G jurisdiction declined-Constitution of India, 195 0-Article 13 6. H Final decree was passed in a suit for dissolution of the partnership firm of the appellants' father and the respondent and the shares of the parties were determined. Decree was also passed 920 SONIDINESHBHAIMANILAL v.JAGJIVANMULCHAND 921 CHOKSHI for the accounts. Thereafter, application was filed for initiation of A final decree proceedings. The Court Commissioner was appointed for examining the accounts of the dissolved partnership firm. The Commissioner submitted a report. Appellants' father raised objections to the report. He also filed for permission to cross-examine the Court Commissioner which was dismissed. Appellants' father B then filed Civil Revision application which was dismissed as withdrawn. Thereafter, application was filed to allow Chartered Accountant to verify the records and accounts books and the same was dismissed. Trial court rejected the objection raised by the appellants to the Commissioner's report. Appellants' father filed C appeal against the rejection order and the same was allowed. Aggrieved respondent filed cross-objection which was rejected. Respondent then filed second appeal which was allowed. Hence the present appeals. Appellant contended that having regard to the provisions of D Order XLIII Rule 1 (u) CPC the second appeal was not maintainable; that the High Court erred in relying upon the orders passed by trial court from time to time without taking into consideration the fact that in view of s. 1 OS CPC, such orders are open to challenge in an appeal preferred against a final order; that the Commissioner appointed to E take accounts should be allowed to be cross-examined by a party taking objection to his report and in any event, he is entitled to adduce his own evidence in support of his objection; and that the Commissioner having ignored vital facts including non-production of books of accounts and ledger, his report could not have been F accepted. Respondent contended that the appeal filed by the respondent being a composite one both against the order dismissing the cross- objection as also the appeal filed by the appellants, a second appeal was maintainable; that a distinction must be made between a G Commissioner appointed to examine accounts and other Commissioners inasmuch as the report in the former case is to be treated as evidence in the suit; and that in any view of the matter, the preliminary decree having been passed as far back as 13th H 922 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R. A October, 1978, the impugned judgment should not be interfered with. Dismissing the appeals, the Court HELD: 1.1. Order XXVI Rule 11 CPC provides for appointment of a Commissioner to examine or adjust accounts, if B necessary. He is competent to decide all questions raised before him, taking into consideration all aspects of the matter. He is to assist the Court. A Commiss
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