JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 14.11.2018 passed by learned Senior Civil Judge, Hamirpur, Himachal Pradesh in CMA No Exe. No. 20 of 2015, whereby an application under Order 26 Rule 9 CPC, having been filed by the respondent-DH came to be allowed, petitioner-JD, has approached this Court in the instant proceedings with a prayer to set-aside the aforesaid impugned order. 2. Precisely, the facts of the case as emerge from the record are that the DH filed a Civil suit bearing No.109 of 2010 for permanent prohibitory injunction in the Court of learned Civil Judge (Senior Division), Hamirpur, Himachal Pradesh, which came to be allowed vide judgment and decree dated 14.5.2012 (Annexure P-1). Vide aforesaid judgment and decree passed by learned court below, petitioner-JD came to be restrained from changing the nature of the suit land by raising construction, until the suit land is partitioned in the process of law by metes and bounds, but relief of mandatory injunction was declined. 3. It is not in dispute that aforesaid judgment and decree passed by learned Court below has attained finality because no appeal whatsoever came to be filed at the behest of the petitioner-JD. Since despite there being restraint order issued against the petitioner- JD, he attempted to change the nature of the suit land by raising construction, DH filed an application under Order XXI Rule 32 and Section 151 CPC for execution of injunction decree dated 14.5.2012 in the Court of learned Senior Civil Judge, Hamirpur, District Hamirpur, Himachal Pradesh. DH averred in the application that JD on 16.5.2015 started digging the suit land with the JCB and also stacked building material with a view to raise construction over the suit land. 4. Jd in reply to the aforesaid application denied the factum with regard to construction, if any, on the suit land by him after passing of the judgment and decree, sought to be executed in the instant proceedings. JD claimed that the construction raised by him is not over the suit land, but the same is on Khasra No.274 and 272. J.D claimed that there is already one cowshed stands constructed over Abadi since the time of his ancestors and at present no construction is being raised by him over the suit land. 5. JD claimed that the construction raised by him is not over the suit land, but the same is on Khasra No.274 and 272. J.D claimed that there is already one cowshed stands constructed over Abadi since the time of his ancestors and at present no construction is being raised by him over the suit land. 5. In the aforesaid proceedings, DH filed an application under Order 26 Rule 9 CPC for appointment of revenue expert to demarcate the suit land. DH averred in the application that the respondents were injuncted from changing the nature of the suit land comprised Khasra No.275, measuring 00-01-93 hectares, but they have constructed the building over the suit land forcibly. JD opposed the aforesaid prayer made on behalf of the DH, but learned court below allowed the application and appointed Sh. Ashok Kumar, Naib Tehsil (Retired) as Local Commissioner to demarcate the suit land. In the aforesaid background, JD has approached this Court in the instant proceedings. 6. I have heard learned counsel for the parties and perused the record. Precisely, the question which falls for consideration of this Court in the instant proceedings is "whether a local commissioner can be appointed by a court, while exercising power under Order XXVI, rule 9 CPC, in execution proceedings filed under Order XXI, rule 32 CPC." 7. Mr. Ajay Sharma, learned Senior Advocate arguing on behalf of the petitioner, while referring to the judgment dated 8.9.2016 passed by a Coordinate Bench of this Court, Ved Parkash vs. Mool Raj Padha, contended that no local commissioner could have been appointed by the court below while exercising power under Order XXVI, rule 9 CPC, in execution proceedings filed under Order XXI, rule 32cpc, and as such, impugned order being patently illegal, deserves to be set aside. 8. Per contra, Mr. Vinod Thakur, learned counsel appearing for the respondents, while referring to the judgment passed in Som Nath vs. Gurdev,2017 3 HimLR 1413 Civil Revision No. 69 of 2015 (decided on 8.5.2017) and Paras Ram vs. Om Parkash and another, CMPMO No. 367 of 2017, decided on 29.3.2018, contended that the executing court with a view to give effect to the orders, sought to be executed, is well within its power to appoint a local commissioner, exercising power under Order XXVI, rule 9 CPC in execution proceedings filed under Order XXI, rule 32 CPC. 9. 9. This court finds from the record that judgment and decree sought to be executed by judgment debtor were passed in the year 2012. There is nothing on record to suggest that from the year 2012 to 2015, judgment debtor made any attempt to raise construction on the suit land despite there being restraint order. No doubt, pleadings as have been adduced on record, if perused juxtaposing judgment and decree sought to be executed, it can be safely concluded that the parties are adjoining land owners but the question, which needs consideration here is, 'whether a court with a view to implement/execute order/judgment sought to be executed can appoint local commissioner to ascertain the factum with regard to construction, if any, in violation of the injunction orders passed during trial, or not?' Judgment rendered by a coordinate bench of this Court in CMPMO No. 19 of 2013, Ved Parkash vs. Mool Raj Padha (supra) though mandates that no local commissioner can be appointed by an executing court in execution proceedings filed for execution/implementation of judgment and decree passed by a civil court but having perused aforesaid judgment, this court finds that aforesaid finding returned by the coordinate Bench of this court is based upon general principles of law laid down in various judgments that object of local investigation is not to collect evidence but to obtain such material which from its peculiar nature can only be had on the spot and object of Order XXVI, rule 9 CPC is not to assist a party to collect evidence. Another coordinate bench of this Court in case (Vinod Thakur judgment) have though held that executing court can appoint local commissioner to ascertain the factum with regard to violation of injunction order but the reasoning assigned by the coordinate bench in the aforesaid judgment if perused, is definitely on general principles of law, laid down by Hon'ble Apex Court in various judgments that very object of appointing a local commissioner exercising power under Order XXVI, rule 9 CPC is to collect such material, which can only be procured by visiting the spot. 10. 10. However, having carefully perused the aforesaid judgments, this court finds that both the coordinate Benches of this Court escaped to take note of the provisions of Order XXVI, rule 18A CPC, which clearly provide the provisions of this Order shall apply to the proceedings in the execution of decree of order. Order XXVI, rule 18A is reproduced herein below: 18A . 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. 11. Besides above, S.141 CPC clearly provides that "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." It is explicit from the provisions contained under Order XXVI, rule 18A CPC that the executing court is well within its jurisdiction to appoint a local commissioner in execution proceedings initiated under Order XXI, rule 32 CPC but next question, remains to be decided is that at what stage, an executing court can exercise this power. 12. Careful perusal of provisions contained under Order XXVI, rule 9 CPC itself suggest that the court, for the purpose of elucidating any matter in dispute, can appoint a local commissioner but, as has been held by Hon'ble Apex Court as well as this court in a catena of judgment that such power cannot be allowed to be used to assist a party to collect evidence, that is why, repeatedly, it has been held that prayer, if any, for appointment of local commissioner shall be usually considered, if required, after recording of evidence. In case, court even after having perused the pleadings and evidence led on record, fails to determine the actual controversy and in its opinion, it is required to have direct evidence from the spot or suit land, it, while exercising power under Order XXVI, rule 9 CPC, can order appointment of local commissioner. Reliance at this stage, is placed upon judgment rendered by this Court in Liaquat Ali vs. Amir Mohammad & ors.,2016 LatestHLJ 831 (HP), wherein this Court has held as under: "4. Petitioner has assailed the aforesaid order on various grounds taken in the petition. Reliance at this stage, is placed upon judgment rendered by this Court in Liaquat Ali vs. Amir Mohammad & ors.,2016 LatestHLJ 831 (HP), wherein this Court has held as under: "4. Petitioner has assailed the aforesaid order on various grounds taken in the petition. Before proceeding to the merits of the matter, it needs to be reiterated that the object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of Order 29, Rule 9 CPC is not to assist a party to collect evidence. 5. What is the measurement of the suit passage and whether the same has been obstructed or encroached upon are matters which were required to be proved by the petitioner by leading cogent and convincing evidence to this effect and, therefore, recourse to the appointment of Local commissioner for demarcating the suit land at this stage is impermissible as both the parties have led their evidence. Obviously the application now preferred by the petitioner is mischievous as the petitioner wants the court to collect evidence for him through the Local commissioner." 13. Reliance is also placed upon judgment rendered by Andhra High Court in case Chakka Ranga Rao vs Molla Mustari Banu decided on 21 June, 2006, wherein it has been held as under: "4. Since it is well known that Executing Court can look into the plaint for understanding the decree, I have requested the learned Counsel for the revision petitioner to produce a certified copy of the plaint. The learned Counsel produced a certified copy of the plaint. The averments in the plaint show that the portion shown as A.B.C.D. and E.F.G.H. in the plan attached thereto belongs to the plaintiff and that the portion shown as B.E.G.D. in that plan belongs to defendant. The case of the respondent (plaintiff) is that the revision petitioner (defendant) who has property in between his two plots had, while constructing his house encroached into the sites belonging to him, which are shown as A.B.C.D and E.F.G.H. Unfortunately, the plaint plan does not contain measurements of the sites belonging to the parties, but the area of the portions marked as I.J.K.L. and M.N.O.P therein is shown as 5 Sq. yards each with rough measurements. yards each with rough measurements. It is difficult to identify those particular portions, because, distances from the eastern and western boundary of the plots belonging to the plaintiff, to locate them are not mentioned in the plaint plan. 5. The Court below was in error in dismissing the petition on the assumption that the provisions of Order 26 do not apply to proceedings in executing, because Order 26 Rule 18-A, clearly lays down that the provisions of that order also apply to proceedings in execution of a decree or order. 6. Here I feel it appropriate to refer to the observations of the Apex Court in Prathiba Singh v. Shanti Devi Prasad of its judgment reading ...Afterall a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case - which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission...." 14. It is quite apparent from the aforesaid exposition of law that though an executing court has power to appoint a local commissioner exercising power under Order XXVI, rule 9 CPC in execution proceedings instituted under Order XXI, rule 32 CPC, but same can be used if required after affording opportunity of leading evidence to the parties with respect to violation, if any, of the injunction order or order/judgment sought to be executed. 15. 15. In the case at hand, impugned order passed by court below nowhere reveals that the executing court below before appointing local commissioner, while exercising power under Order XXVI, rule 9 CPC, afforded an opportunity to the parties to lead evidence in support of their respective claims, rather, it solely, having taken note of the fact that the dispute inter se parties is qua a strip of land, which both the parties claim to be in their ownership, proceeded to appoint local commissioner, while exercising power under Order XXVI, rule 9 CPC, which action of the court below cannot be said to be legal, rather, same appears to be in contradiction of the very intent of the provisions contained under Order XXVI, rule 9 CPC, which empower a court in any suit to appoint a local commissioner to understand the controversy in an effective manner or for ascertaining the factual position on the spot, but definitely such power can be exercised by a court when evidence with regard to controversy in issue is not sufficient to arrive at a fair conclusion. 16. It is clear from the impugned order that the court below ignoring the reply filed by the non-applicant/respondent, proceeded to appoint a local commissioner under Order XXVI, rule 9 CPC, by taking into consideration the concession given by learned counsel for the respondent. Though the impugned order reveals that Shri S.S. Kanwar, Advocate gave his no objection to the application for appointment of local commissioner, but such fact has been seriously disputed by above named counsel by way of filing an affidavit in the instant proceedings (Annexure P-5). Above named counsel has categorically stated in his affidavit that he never consented for appointment of local commissioner. 17. Be that as it may, once the respondent opposed the claim for appointment of local commissioner by filing detailed reply, consent, if any, given by the counsel of the respondent, had no relevance, especially when reply filed by the respondent was not withdrawn. Since the reply filed by the respondent opposing therein appointment of local commissioner was on record, it was bounden duty of the court below to decide the application on its own merits. 18. Since the reply filed by the respondent opposing therein appointment of local commissioner was on record, it was bounden duty of the court below to decide the application on its own merits. 18. Consequently, in view of above, this court finds merit in the present petition and accordingly, same is allowed and impugned order dated 14.11.2018 passed by learned Senior Civil Judge, Hamirpur, Himachal Pradesh in CMA No. 358/2017 in Exe. No. 20/2015 is set aside. Court below is directed to proceed with the execution proceedings and decide the same in accordance with law by affording opportunity to the parties to lead evidence in support of their respective claims, and, thereafter, if it still feels the necessity to appoint local commissioner, it may do so by recoding reasons. Learned counsel for the parties undertake to cause presence of their respective parties before learned court below on 18.11.2020 , enabling it to proceed further with the matter, in accordance with law and the observations made in the instant judgment. Petition stands disposed of. Pending applications, if any, also stand disposed of.