JUDGMENT : Lalit Mohan Sharma, J. By the ORDER :impugned in this application the Subordinate Judge, Bhagalpur, directed that a writ be reissued to an advocate commissioner for holding local inspection and preparing an inventory in regard to the articles belonging to a deity. The plaintiffs filed a suit for displacing defendant No. 1 who was acting as the Shebait and a decree was passed on the 7th August, 1950. An appeal was, thereafter, filed in this Court which was registered as First Appeal No. 426 of 1950 and by the JUDGMENT : dated 1st August, 1959 the High Court confirmed that part of the decision whereby the defendant No. 1 was removed. In place of the plaintiff No. 1, however, the defendant nos. 2 and 3 were held to be suitable persons to manage the trust. Accordingly, according to the petitioners case an execution case being Execution case No. 15 of 1959 was started and the defendant nos. 2 and 3 obtained possession and started managing the affairs of the deity. On the 5th March, 1979, plaintiff no. 2 filed an application in the suit itself for a direction that he should be put in the charge of the management. This application has been registered as Miscellaneous Case No. 116 of 1979. 2. In the miscellaneous case, referred to above, the plaintiff no. 2 applied for appointment of an advocate commissioner for holding local inspection and for preparing an inventory which was allowed ex-parte. Defendant no. 2 objected and it was directed that the matter will be heard on 19.9.1979, but it is asserted on behalf of the petitioners that a week earlier on 12.9.1979, which was not a date in the case, an ORDER :was passed in favour of the plaintiffs. When the defendant petitioners learnt about it they agitated the matter and they were again heard on the 19th September 1979 when the earlier ORDER :was re-affirmed directing the writ to be reissued. This ORDER :is under challenge. 3. Mr. Mishra pointed out that the petitioners should have come to this Court against the ORDER :dated 12.9.1979 which has not been done. I do not consider it essential for the petitioners to have done so, when the court below itself reopened the matter and heard fresh arguments on 19.9.1979. This ORDER :is under challenge. 3. Mr. Mishra pointed out that the petitioners should have come to this Court against the ORDER :dated 12.9.1979 which has not been done. I do not consider it essential for the petitioners to have done so, when the court below itself reopened the matter and heard fresh arguments on 19.9.1979. The ORDER :portion stating that the writ should be re-issued itself indicates that the ORDER :dated 12.9.1979 had in effect been recalled. 4. Mr. Ghose appearing for the petitioners contended that since the suit itself was disposed of, there was no question of the plaintiffs coming to the court in the same suit for a fresh direction. The application being not maintainable, the court should have considered the objection before passing the commission. In reply Mr. Mishra has argued that in view of the certain observations made by this Court in First Appeal No. 426 of 1950, the miscellaneous case is maintainable. I am not inclined to decide this controversy but allow this application and set aside the impugned ORDER :on the ground that before the court proceeded to appoint an advocate commissioner, it should have considered and decided the objection raised by the petitioners. Postponing the consideration of that point and appointing a pleader commissioner on an assumption that the course would not prejudice the party in any manner is not right. The court should have deferred to give its final decision on the question, but was under a duty to decide as to whether the plaintiffs had established a prima facie case, both on merits as well as on the question as to whether the circumstances demanded the appointment of an advocate commissioner. The prayer having been granted in a mechanical way, the ORDER :under revision must be held to be so erroneous as to attract the provisions of Section 115 of the Code of Civil Procedure. 5. The revision application, therefore, is allowed, the impugned ORDER :is set aside and the matter is sent back to the court below for reconsideration. There will be no ORDER :as to costs.