P.S. Narayana, J.
1. This Court ordered notice before admission and the learned Counsel for the petitioner was also permitted to take out personal notices to the respondents and file proof of service. Though the respondents were served with notices, none represents on behalf of the respondents.
2. Sri. G. Ramesh, learned Counsel representing the revision petitioner, would submit that an application was filed under Order XXVI Rule 10-A of the Code of Civil Procedure (hereinafter referred to as the 'Code') praying for sending the original sale deed dated 17-09-2004, executed by the petitioner and the alleged mortgage deed dated 3-12-1997 marked as Ex.B-1 to the A.P. Forensic Lab for comparison and for opinion of the expert.
3. It is brought to the notice of this Court that the petitioner filed O.S.No. 815 of 2000, on the file of the Principal Junior Civil Judge, Cuddapah, which was instituted on the strength of a mortgage deed and an exparte decree was obtained. The revision petitioner moved a claim petition in the E.P praying for sending the sale deed and the mortgage deed, referred to supra, to the Forensic Lab for the purpose of comparison to have the opinion of the expert for proper adjudication of the matters in controversy.
4. The learned Counsel for the petitioner also pointed out that inasmuch as this application was filed in a claim proceeding and since claim proceeding may have to be decided just like a suit, definitely Order XXVI Rule 10-A of the Code is applicable and in the facts and circumstances of the case, instead of allowing the application, the trial Court erroneously dismissed the application without costs, and hence, the civil revision petition had been filed.
5. The learned Counsel also placed reliance on K. Venkarayappa v. Ellen Industries, Coimbatore and Ors., : AIR1985AP261 .
6. Order XXVI Rule 10-A of the Code reads as hereunder:-
'Commission for scientific investigation:-
(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.
(2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.'
7. The term or expression 'suit' is not defined. Section 26 of the Code refers to the presentation of the plaint only.
8. In Hansraj Gupta and Ors. v. Dehra Dun Mussoorie Electric Tram Way Co. Ltd., AIR 1933 P.C. 63 it was held that the word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.
9. In N.K.R.M. Rajagopala Chettiar v. Hindu Religious Endowment Board, Madras and Ors., AIR 1934 Madras 103 (F.B.) the Full Bench of the Madras High Court held that the term 'suit' in C.P.C can mean only a proceeding instituted by the presentation of a plaint and a proceeding commenced by an application would fall within the term 'suit' only if, such a proceeding has been especially declared to be a suit by the specific provision of any special enactment.
10. In B. Narasappa v. B. Govindappa, : 1992(1)ALT48 the learned judge of this Court held that when once under Section 141 of the Code provisions are not applicable to execution, it is not open to invoke under Section 151 of the Code and appoint a Commissioner, which is not otherwise permissible under the provisions of the Code and it is not open to appoint a Commissioner in execution proceedings.
11. Order XXVI Rule 18-A of the Code was introduced by Amendment Act of 1976, which reads as hereunder:-
'Application of Order to execution proceedings:-The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order.'
12. In Natabar Behera v. Batakrishna Das, : AIR1987Ori7 (D.B.) the Division Bench of Orissa High Court while dealing with scientific investigation of report of hand writing expert held that 'Section 75 of the Code defines and limits the power of the Court to issue commission, the detailed provision of which has been set forth in Order XXVI. The said section was amended by Act 104 of 1976 and as a consequence of the said amendment, new Rules 10-A to 10-C have been inserted in Order XXVI of the Code. In Clause (e) to (g) of Section 75 which were inserted by the aforesaid amendment, the power of the Court to issue commission has been widened. Clause (e), so introduced empowers the Court to issue commission to hold a scientific, technical or expert investigation when it is needed for determination of any issue before the Court. Rule 10-A of Order XXVI provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. Scientific examination means ascertainment by observation and experiment critically tested, systematized and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialized skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialization on the subject. The handwriting experts for the purpose of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognized principles and by critical tests, which in most cases cannot be conveniently conducted before the Court. Hence, the genuineness of the signatures in the rent receipts having been disputed, the Court has rightly issued a commission for investigation by an expert.'
13. In the light of the clear language of Order XXVI Rule 18-A of the Code, there cannot be any serious doubt on the aspect of the maintainability of the application in execution proceedings.
14. Strong reliance was placed to explain the nature of a claim proceeding on the decision of this Court in K. Venkarayappa v. Ellen Industries, Coimbatore and Ors. (supra 1). This Court is not inclined to go into the question whether the claim proceeding in execution of mortgage decree can be maintained or not since the same may not be germane in the present context.
15. However, on a careful scrutiny of the reasons, which had been recorded in detail by the learned Judge at Paras 5,6 and 7, this Court is of the considered opinion that there are no bona fides on the part of the revision petitioner in moving the present application and hence the impugned order does not suffer from any illegality whatsoever.
16. Accordingly, the Civil Revision Petition shall stand dismissed as being devoid of merit at the stage of admission. No costs.