Judgment S.C.Misra, J. 1. The petitioner made an application in the Court of the learned Subordinate Judge, Patha, claiming that he was in possession on his own account of a house in respect of which the opposite party obtained a decree for eviction of Raja Bahadur Kamakhya Narani Singh of Ramgarh in Title Suit no. 34 of 1960. The case set vip by the petitioner, Sri Rajkumar Indra Jitcndra Narain Singh, son of the judgment-debtor Raja Bahadur Kamakhya Narayan Singh, was that he was in possession of the house on his own account under the terms of an agreement for sale executed by the opposite party in his favour and he was also put in possession of the house in question. To enforce the agreement for sale he instituted a title suit on the original side of the Calcutta High Court on the 20th January, 1960, which was numbered as Title Suit No. 120 of 1960. Accordingly he objected to the delivery of possession being made by the Court in favour of the opposite party Sri T. C. Puri. This gave rise to Miscellaneous case No. 29A/32 of 1962-63. It appears that the application under Order 21 Rule 58, Civil Procedure Code, was filed on the 7th September, 1962. On the 8th of March, 1963, however, an application was put in by the petitioner stating that he had filed a list of witnesses but no summons was issued and without the summons no witness was prepared to come to depose in Court. On the 16th of March, 1963, an order was passed by the Court in pursuance of the order already passed by it on the 8th of March, 1963, for issuing dusti summons. Nobody however, turned up on that date for some time to receive the dusti summons. 2. It is stated in the order-sheet that on that very date sometime later two petitions were filed stating that the witnesses for the applicant had not come to court as their attendance could not be secured, and accordingly a commission might be issued for their examination at their places of. residence. The ground urged in the petition in support of the prayer was that the witnesses whose names were mentioned in the petition were residents of places beyond 200 miles from Patna. residence. The ground urged in the petition in support of the prayer was that the witnesses whose names were mentioned in the petition were residents of places beyond 200 miles from Patna. The prayer of the petitioner was, however, rejected by the learned Subordinate Jugde and the present petition is directed against that order. 3. Learned counsel for the petitioner bas contended that the learned Subordinate Judge was in error in refusing to accede to the prayer of the petitioner and he committed a material irregularity in exercise of his jurisdiction in doing so. He has drawn my attention in this connection to Order 26 Rule 4, Civil Procedure Code, and Order 16 Rule 19 thereof. Order 26 Rule 4 provides, inter alia, for the issue of a commission in any suit for the examination of any person residing beyond the local limits of its jurisdiction hy issuing a commission. This is a general provision empowering a Civil Court to issue a commission for the examination of a witness residing beyond its local jurisdiction. Order 16 Rule 19 lays down that no one shall be ordered to attend in person to give evidence unless he resides within the local limits of the Courts ordinary original jurisdiction or without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the court-house. Learned Counsel has contended that the list of witnesses supplied in the petition for issue of a commission would show that the entire lot mentioned therein reside at places admittedly beyond two hundred miles from Patna where the Court in which the miscellaneous case is ending is situate. The combined effect of these two provisions is that a person whose examination in a suit is necessary cannot be compelled to attend in person by the Court if he is a resident of a place beyond two hundred miles from the place where the Court is situate. Therefore, none of the witnesses can be ordered to attend in person and it follows as a necessary corollary that a commission must issue in terms of the provisions mentioned above for the examination of the witnesses. Therefore, none of the witnesses can be ordered to attend in person and it follows as a necessary corollary that a commission must issue in terms of the provisions mentioned above for the examination of the witnesses. Support for the proposition has also been sought with reference to a decision of this Court in Zohada Begum V/s. Messrs Haji Dawood Ayed Firm, 21 Pat LT 197: (AIR 1940 Pat 437). 4. Learned counsel for the opposite party has urged, however, that the order of the Court below is perfectly legal and valid and cannot be interfered with in revision. The learned Subordinate Judge exercised his jurisdiction in a sound and proper manner in so far as he has stated that the application itself was not bona fide and it was intended only to delay the proceedings. Hence, it was not expedient to issue a commission in the present proceeding for examination of a very large number of witnesses whose names were cited in the petition for issue of a commission. The applicant had not taken any steps for the issue of a commission with promptitude and thus he gave an indication of the fact that it was purely a device .for delaying the disposal of the case. In view of that finding recorded by the learned Subordinate Judge neither Order 26 Rule 4 nor Order 16 Rule 19 nor the principle of law laid down in the above case, 21 Pat LT 197: (AIR 1940 Pat 437) can be of any avail to the petitioner. 5. In my opinion, it is unnecessary to refer in detail to the provisions of Order 26 Rule 4 or Order 16 Rule 19 inasmuch as a Division Bench of this Court, mentioned above, has already gone into the question and it has been laid down that where a witness to be examined comes within the provisions of Rule 19 of Order 16 of the Cods a commission has to be issued inasmuch as in terms of the above provisions the Court is not competent to compel the personal presence of the witness by summoning him before the Court. Agarwala, 1. Agarwala, 1. as he then was, who delivered the judgment, record-ed the opinion, on the point as follows: "In view of this fact and of the importance of the examination of the husband of defendant No. 1 and of the fact that he is performing public duties in Orissa we consider that the Court acted with material irregularly in refusing the application." That application arose out of a suit which was for damages for breach of a contract. Defendant No. 1 alleged that her husband, who was a Deputy Magistrate in Orissa beyond two hundred miles away from Dhanbad where the Court was situate, should be examined on commission and the cxamination was material for the determination of the suit. The learned Subordinate Judge of Dhanbad who was in seisin of the matter refused the prayer. The ground given by the learned Subordinate Judge was hat defendant No. 1, the petitioner to this Court, look no steps to apply for a commission until the 16th of January, 1940; hence, the application was mala fide and it was a mere device on her part to delay the disposal of the suit. Their Lordships of this Court, however, after having scrutinised the circumstances in which the application was made, found that there was no negligence or laches on the part of defen-dant No. 1 and that the application was bona fide and made without undue delay. The fact was also taken into account that the witness sought to be examined was a Deputy Magistrate in Orissa who could not be spared on account of pressure of duty although on a previous occasion he applied for leave for proceeding to Dhanbad to be examined as a witness. 6 Learned counsel for the opposite party has contended that the principle to be kept in view in deciding whether a commission should issue when a witness to be examined on commission is a resident of a place beyond 200 miles from the station where the Court is situate is not the mere fact of distance of the residence of the witness but other considerations too must weigh with the Court in the exercise of its discretion; for instance, the conduct of the person making an application for issue of a commission must not be mala fide in the sense that he desires only to delay the procccd-ings, and other relevant matters. In the above case, therefore, their Lordships scrutinised the position in so far as the charge of mala fides was concerned, and they came to the conclusion that there was no negligence of any kind on her part. In the present case, however, my attention has been drawn to the various orders recorded by the learned Subordinate Judge and the manner in which the petitioner proceeded in the matter before the prayer for issue of a commission was made. 7. As I have already stated, the application was filed on the 7th of September, 1962, and a prayer was made on several occasions on behalf of the petitioner for time. On the 21st of September, 1962, the question for the examination of the witnesses on commission was taken up by the learned Subordinate Judge and he passed the following order: "If he has to examine any witness on commission, then he should deposit their expenses and also take other necessary steps without fail. On no ground would any further time be allowed". It appears to me unnecessary to refer to various other matters transpiring in the course of the proceeding until we come to the 19th of January, 1963, on which date an application was filed by the petitioner stating that he could not bring witnesses and the witnesses might be summoned by means of duati summons for which two weeks time might be allowed. The Court ordered that it was strange that at the request of the Advocate for the applicant iirne was allowed till 2 p. m. even then a petition for time was filed. Then an application was filed praying for 15 days time to move the District Judge for transfer of the case from that Court Before that also a similar prayer was made on the 9th November, 1962, and the prayer for transfer was rejected by this Court in M. J. C. 1208 of 1962. Even then the court allowed time till the 28 h of January, 1963, to bring an order of transfer from the District Judge. It appears that the prayer was rejected by the District Judge and then an application was filed in this court for. special leave to appeal to the Supreme Court being S. C. A. 148 of 1962. Even then the court allowed time till the 28 h of January, 1963, to bring an order of transfer from the District Judge. It appears that the prayer was rejected by the District Judge and then an application was filed in this court for. special leave to appeal to the Supreme Court being S. C. A. 148 of 1962. Time was granted to him till the 28th of February, 1963, awaiting the stay order and the case was adjourned to the 8th of March, 1963. On that date, as I have already men joned, an order was passed by the learned Subordinate Judge permitting the applicant to take out dusti summons lor his witnesses at his risk. On the 22nd of March, 1963, he was not present in spite of repeated calls and no pairvi was done on his behalf. At 11.2.0 a.m. however, two petitioners were filed relating to the present application for issuing a commission for examination of the witnesses. Learned Counsel for the opposite party has urged that the order-sheet indicates clearly that the petitioner has not been taking steps in the proceeding in due course but has made prayers of various kinds from time to time to delay the disposal of the case. In the circumstances if the learned Subordinate Judge came to the conclusion that the application was not bona fide, it was not for this Court to come to a different conclusion, and if that finding stands, the present application cannot succeed. In my opinion, there is substance in the contention urged on behalf of the opposite party and the finding of the learned Subordinate Judge being based on a perusal of the order-shcet and not! being unreasonable cannot be interfered with in revision and it must be held that there is no substance in the present application which must be dismissed. 8. Learned counsel tor the opposite party has also brought to rny notice a decision of the Madras High Court in Venkayya V/s. Rattayya, AIR 1939 Mad 578 in which it has been laid down that the provisions of Order 26 Rule 4 arc not applicable to execution proceedings and have not been made so by reason of the provisions of Sec.141, Civil Procedure Code. The learned Judge referred in that connection to Mullas Code of Civil Procedure and the commentary on section 141 of the Code wherein there is a detailed consideration together with the conclusion that Sec.141 of the Code is not applicable to execution proceedings in so far as Order 26 Rule 4 relates to the issue of a commission for examination of witnesses. It clearly provides for the issue of commission in a suit, and, therefore, prima facie it does not cover an execution proceeding unless, of course, it comes under the terms of Sec.141 of the Code of Civil Procedure. The numerous authorities referred to by Gentle, J. in the Madras case as also by Mulla in the commentary on Sec.141 put the matter beyond doubt that Order 26 Rule 4 would not be applicable to an execution proceeding. The present miscellaneous case has arisen in a proceeding in execution: accordingly it cannot be covered by Order 26 Rule 4. I may add that this is also in consonance with the underlying principle of Order 21 Rule 58. Civil Procedure Code. This is a proceed- ing of a summary nature and to allow examination of the witnesses on commission mighs more often than not, deprive the summary proceeding of its fundamental character and delay it unduly when it is intended for speedy disposal of the execution proceeding without finally determining the rights of the parties so that the party which loses as a result of the order passed by the Court has his rcmsdy by way of a regular suit under Order 21 Rub 63, Civil Procedure Code. In any view of the matter, and in consideration of a large number of authorities on this point it must be held that the objection raised by the learned Counsel for the opposite party must prevail and the application is liable to be dismissed even on this ground. 9. I may also make it clear that in the course of the hearing of this application I asked Mr. Lal Narain Sinha, appearing for the petitioner, as to whether it was possible for him to choose some out of the long list of witnesses whose examination might be essential. Mr. Lal Narain Sinha submitted that it would be sufficient for his purposes if four out of twenty-five witnesses mentioned in the list were examined. All of them belong to Lucknow, namely. Capt. Mr. Lal Narain Sinha submitted that it would be sufficient for his purposes if four out of twenty-five witnesses mentioned in the list were examined. All of them belong to Lucknow, namely. Capt. P. P. Tiku, Oudh Flying Club, Lucknow, Sri Bibbuti Prasad Sinha, Ground Enginner, Oudh Flying Club, Lucknow, Sri Dhrub Gupta, Oudh Flying Club, Lucknow and Raja Raghvendra Pratap Singh, M. L. A., 123A Darushafa, Lucknow. I may state here that the witnesses mentioned in the list belong to distant parts of India covering Madras, Andhra Pradesh, Bombay, Lucknow, Calcutta, Rajasthan, Indore, Bhopal, Himachal Pradesh, Patiala, Allahabad and Jalon. Mr. Sinha, however, thought that these four witnesses might be examined on commission. Learned Counsel for the opposite party, however contended that in Ihc application filed for examination of the witnesses it was siot disclosed on what point they were to be examined so that the Court might exercise its discretion in a proper manner while passing an order on the prayer made, the application being very general in nature. It only stales that these witnesses arc material witnesses in the case. I therefore asked the learned Counsel to supply more specific details in this respect and a supplementary affidavit was filed. Therein it was stated that the petitioner wanted to examine the Calcutta and Lucknow witnesses being Nos. 8 to 11 and 14 to 17 of the list to show that there was an agreement that the petitioner would get possession and by virtue of the agreement the petitioner was put in possession on the 1st August, 1957. Further, the petitioner wanted to examine other witnesses of the list to prove that he erected considerable structure over this property and was using this property as his own learned counsel for the petitioner contended that so far as the possession of the petitioner is concerned, that is a point which is more or less accepted in the sense that Raja Bahadur Kamakhya Narain Singh was put in possession as a tenant and that it was intended as the residence for all the members of family. The petitioner being the son of Raja Bahadur Kamakhya Narain Singh, it would be natural for him to continue in the house. The petitioner being the son of Raja Bahadur Kamakhya Narain Singh, it would be natural for him to continue in the house. In any case, even the supplementary affidavit was vague and general and it did not improve the case of the petitioner in any way so far as the materiality of the examination of these witnesses to prove the points referred to in the application was concerned, To me it seems that there is substance in the objection raised by the learned counsel for the opposite party. Learned counsel for the opposite party even agreed to the examination of the Calcutta and Luck-now witnesses on commission on the condition that the petitioner would deposit a reasonable amount of cost which was set down in tentative terms and was placed before me by the Advocate-General for the opposite party. He urged that although technically speaking, there was no substance in the petition, yet there was no objection to the examination of these witnesses on the terms as were referred to in the case of Ganga Prasad Bhagat V/s. Kasi-prasad Jhunjhunwala, 24 Cut LT 466. Learned Counsel for the petitioner, however, expressed his inability to accept the terms. Accordingly nothing further is to be said about this matter. 10. The result, therefore, is that the applica tion fails and is dismissed: hearing fee is assessed at Rs. 100.00.