Judgment LALIT MOHAN SHARMA, J. 1. This appeal by the defendants is directed against the decision of the court below decreeing the suit in part. The plaintiff filed the suit for partition of the properties described in the plaint claiming 1/8th share on the allegation that she is the widow of Siban Chaudhary, a member of the family of the defendants. The genealogical table of the family is given at page 11 of the paperbook. In Schedule 1, the immovable properties belonging to the family are included and in Schedule 2 certain movables are mentioned. 2. Two written statements were filed by the major defendants, one by defendants 1 to 5 and 8 and the other by defendants 9, 10 and 12. It was pleaded that the plaintiff is an imposter and not the widow of Siban Chaudhary who died bachelor. It was also stated that a partition had been effected in 1927 between the branches of the two brothers Hansraj Chaudhary and Uttam Chaudhary and in 1951 there was a further partition amongst the defendants 9, 10 and 11. 3. A Commissioner was appointed by the trial Court on the prayer of defendant No. 1 who submitted a bill after completing his work. In spite of a direction by the court, the remuneration of the Commissioner was not paid by the parties and the court, therefore, passed an order striking off the defence. The result was that the suit was heard ex parte. The defendants were, accordingly, not permitted to lead evidence and the plaintiff examined only one witness, that is, herself, in support of her case on 21-4-1965. The court below on that very day, decreed the suit in respect of Schedule I properties by a very perfunctory judgment. 4. In support of this appeal, Mr. Swaraj Prasad, learned Advocate for the appellants, has contended that the order of the court below striking off the defence was illegal which must be set aside and a fresh opportunity must be given to the parties to lead evidence in support of their respective cases. The order sheet of the court below has been included in the paperbook and the order dated 20th July, 1964 indicates that an application for appointment of a Commissioner had been made by defendants 1, 2 and 4. The order sheet of the court below has been included in the paperbook and the order dated 20th July, 1964 indicates that an application for appointment of a Commissioner had been made by defendants 1, 2 and 4. The court allowed the prayer and directed the appointment of a survey knowing pleader Commissioner for inspecting the house and the lands and for noting the configuration and existing condition. The court further ordered: "Let the parties concerned make a deposit of Rupees hundred for the present to defray the cost." The order dated 20-7-1964 indicates that defendant No. 1 deposited a sum of Rs. 100.00 as ordered. The order dated 27-11-1964 states that the Commissioner submitted his report on 14-12-1964. The plaintiff and defendant No. 11 filed objections thereto. On 18-12-1964, the bill of the Commissioner for Rs. 517 was passed. The defendant was directed to deposit further sum of Rs. 417/- and his lawyer was accordingly informed. The parties raised some dispute regarding payment of this amount and by order dated 2-3-1965 the court directed the payment in the following terms: "Plaintiff to pay 32/- at once. Defendant to pay the balance by 3-3-1965 or the defence will be struck off." On the next day, that is, 3-3-1965, the plaintiff and defendant No. 9 appeared. The other defendants did not take any step. The court directed the defence to be struck off and granted time till 24-3-1965 to the plaintiff for depositing Rs. 32/-. The order sheet of the next date shows that neither the plaintiff nor the defendants made the deposits. The plaintiff was given further time till 7th April, 1965 to deposit Rs. 32/-. It was further said that the case would be heard ex parte on that date, that is, 7th April, 1965. The plaintiff deposited the amount on 7-4-1965. The defendants appeared on this date, but the court observed in its order that the suit had already been fixed for ex parte hearing. The 21st April, 1965 was fixed as the next date when the suit was heard and decreed in part as stated above. 5. The main question in this appeal is whether the trial Court could have directed for striking off the defence on the ground of non-payment of the Commissioners fee. The 21st April, 1965 was fixed as the next date when the suit was heard and decreed in part as stated above. 5. The main question in this appeal is whether the trial Court could have directed for striking off the defence on the ground of non-payment of the Commissioners fee. The appointment of the Commissioner was made under the provisions of order 26 of the Code of Civil Procedure and Rule 15 thereof is in the following terms: "R. 15. Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks 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." Although the rule enjoins that the order in regard to payment of expenses of the commission should be made before issuing the commission, it must be held that on a final accounting, the court has authority to direct the party concerned to deposit additional costs. But the question is as to whether the court can strike off the defence on the failure of such deposit. There has been some controversy on the question whether the order for deposit of the commissioners fee is executable. It is true that the Commissioner, in whose favour such an order is passed, is not a party to the suit and, therefore, cannot be a party to the decree in the suit and, for that reason, it has to be held that the order does not amount to a decree. But Sec.36 of the Code of Civil Procedure states that the provisions of the Code relating to the execution of a decree shall, so far they are applicable, be deemed to apply to the execution of orders. I am, therefore, of the view that the direction of the court in regard to the deposit of the Commissioners fee is executable. The remedy of the Commissioner was, therefore, by way of execution. 6. The striking off the defence and holding an ex parte trial are serious matters which prejudice the defendants adversely, affecting the results of the litigation and are clearly penal in nature. The remedy of the Commissioner was, therefore, by way of execution. 6. The striking off the defence and holding an ex parte trial are serious matters which prejudice the defendants adversely, affecting the results of the litigation and are clearly penal in nature. The court is basically interested in finding the truth in a case and giving its judgment, as far as it may be possible, in accordance with merits, and for that end, a certain procedure has to be followed for holding the trial. The Code of Civil Procedure has been enacted for that purpose laying down rules, inter alia, for production of evidence. Certain duties have been cast on the parties in this regard and if a party does not discharge his responsibility in regard to a particular piece of evidence, ordinarily the consequence should be the exclusion of such evidence, if it is in favour of that party, or drawing of an appropriate adverse inference against him. It would not be fair to decide the case itself against the defaulting party. Unless, therefore, the law expressly provides, the court should not pass a more rigorous and far reaching order than necessary in the situation. In the matter of appointment of a Commissioner, it is true that the Commissioners fee ought to be paid by the party at whose instance the appointment is made, but as I have indicated above, the amount can be realised by execution. Besides, the court is entitled to exclude the Commissioners report from consideration, although it would not be bound to do so. But no provision of the Code has been placed before us authorising the court to pass an order more severe in nature. The provisions regarding ex parte hearing are included in R. 6 of O. 9 of the Code of Civil Procedure but only if the defendant does not appear in spite of service of summons when the suit is called on for hearing. In such a situation, no alternative is left but to proceed with the trial ex parte. Order 9 also provides for dismissal of the suit in certain conditions which fully justify such a course. In such a situation, no alternative is left but to proceed with the trial ex parte. Order 9 also provides for dismissal of the suit in certain conditions which fully justify such a course. The only provision in the Code which appears to be relevant in regard to the payment of Commissioners fee is in Rule 15 of Order 26 which does not authorise the court to pass an order similar to the one passed in the present case. The Civil Court Rules of the Patna High Court also do not suggest otherwise. Rules 422 and 425 in Chapter I of Part V, which are relevant, read as follows: "422. Judicial Officers should bear in mind that a commissioner would be justified in refusing to execute a commission if the party has not deposited cash sufficient to pay his fee as well as all his necessary incidental expenses. A Commissioners remuneration should be paid in cash, unless he is a Judicial Officer or a Civil Court Amin." "425. In any case in which the sum fixed for the expenses of the commission and paid into Court shall have been calculated with regard to the time likely to be occupied in the execution of such commission, the Commissioner shall, in the event of his finding that the time is insufficient, give timely notice to the party at whose instance the commission was issued, and report the fact to the Court. The sum necessary to cover the expenses for such further period as may be required to complete the execution of the commission should then be deposited in Court by the party, and the Commissioner, unless certified of such deposit, should suspend the investigation at the close of the period originally fixed, pending the further instructions of the Court. If the additional deposit required be not made within a reasonable time, the trial should proceed." 7. No direct decision covering the point has been placed before us at the bar, but the decisions in Ragava Chariar V/s. Vedanta Chariar, ((1881) ILR 3 Mad 259) and Valji Harji V/s. Ravishankar Chhaganlal (AIR 1947 Sind 1 FB) may be referred to. The Madras case had been decided under the old Code. There the District judge dismissed the suit, because the plaintiff had declined to pay the remuneration of the Commissioner as fixed by the court. The Madras case had been decided under the old Code. There the District judge dismissed the suit, because the plaintiff had declined to pay the remuneration of the Commissioner as fixed by the court. In the Sindh case, it was held that if the plaintiff at whose instance a commission is issued declines to pay the fees, the court would not be justified in passing an order whereby it purports to terminate the proceeding before it not by passing a final order but by ordering the record to be assigned to the Record Room. The proper course indicated is to proceed with the case on the materials available. The ratio of these cases, to my mind, support in principle, the view I am taking. I, accordingly, hold that the court below was not justified in striking off the defence and directing for an ex parte trial. 8. I have already pointed out above that the Commissioner was appointed at the instance of defendants 1, 2 and 4 and other defendants do not appear to be party to the application. For that reason also, the court was not justified in shutting out the defence of the defendants. The result of the aforesaid erroneous order of the court has been the exclusion of the defence and evidence in support of the same from consideration. The error has to be corrected by an order of retrial from that stage. 9. For the reasons stated above, this appeal is allowed and the decree of the court below is set aside. The order of the trial court striking off the defence and directing for ex parte trial is also set aside and the case is remanded back. Both sides will be given opportunity for leading evidence. The evidence of the plaintiff already recorded will form part of the records of the case, but she will be entitled to make any further statement she desires to. The defendants will be entitled to cross-examine her. However, in the circumstances of the case, there will be no order as to costs of this appeal. BIRENDRA PRASAD SINHA, J. 10 I agree.