ORDER : A. Muhamed Mustaque, J. 1. This original petition has been placed before us based on a reference order of the learned single Judge. The reference was necessitated as the learned Single Judge observed that a coordinate Bench of this Court in Francis Assissi v. Sr.Breesiya and Others [ 2017 (1) KLT 1041 ] held that a commission report can only be set aside or varied under Sub-Rule (2) of Rule 14 of Order XXVI of the Code of Civil Procedure (for short, the Code). This appears to have created a considerable amount of confusion in the District Judiciary in regard to the procedure to be adopted regarding setting aside or remitting the commission report on such application being made before the court. 2. Another learned Single Judge in a recent judgment in Yudathadevus v. Joseph [ 2021 (5) KHC 668 ] opined that the judgment in Francis Assissi's case (supra) is per incuriam and it is not a binding precedent. The learned Single Judge after adverting to all decisions in this regard, was of the firm view that the court has the necessary power to set aside the commission report or remit the commission report. The learned Single Judge also placed reliance on the earlier Division Bench judgment, prior to the judgment in Francis Assissi's case (supra) to arrive at the conclusion as above. 3. Order XXVI of the Code broadly refers to commissions. It further classifies commissions under different heads based on the purpose such as the Commission to examine witnesses, the commission for local investigation, the commission for scientific investigation, the commission for performance of a ministerial act, the commission for the sale of movable property and the commission to examine or adjust accounts. A residuary provision in the nature of general provision is also incorporated under Order XXVI of the Code in regard to the expenses of the commission to be paid into court, powers of the Commissioner, questions objected to before the Commissioner and attendance and examination of witnesses before the Commissioner. We, at the outset, note that the classification of issuance of commission under different heads is necessary to understand the legal issue involved. If the classification is not strictly adhered to, it may create confusion as was noted in the reference order. 4. We have gone through the judgments in Francis Assissi's case (supra). We, at the outset, note that the classification of issuance of commission under different heads is necessary to understand the legal issue involved. If the classification is not strictly adhered to, it may create confusion as was noted in the reference order. 4. We have gone through the judgments in Francis Assissi's case (supra). That was a case in which a Commissioner was deputed for examining the witnesses. The provisions relating to the examination of the witnesses are under Order XXVI Rules 1 to 8 of the Code. Having gone through the above provisions, we do not find any provisions enabling the court to set aside or conduct further enquiry or remit the commission report. The issue directly involved in that case was in regard to the procedure to be followed by the Commissioner to examine the witnesses. The ratio decidendi of an earlier decision will have to be ascertained to find out whether it is a binding precedent or not. The judgment in Francis Assissi's case (supra) was in the context of the Commissioner which was deputed to examine a witness. Therefore, we are of the opinion that the above judgment would hold the field, in regard to examination of witness alone unless a different opinion is taken by a larger bench. 5. However, we note the observations in Francis Assissi's case (supra) in paragraph 41. According to us, it will not constitute a binding precedent for the reason that it was not an issue that had arisen in that case for consideration. It can only be treated as an observation and has no precedential value. It is appropriate to refer to paragraph 41: “The question of setting aside of earlier commission report before issuing a second commission would arise only in case of commission issued for effecting partition. In all other cases there is no necessity, requirement or need to set side the earlier report, before issuing a second Commission either for the very same purpose or for some other purposes. No such mandate is included any where in R.1 to 13 to O.XXVI. At the same time, we cannot shut our eyes into certain realities which are prevailed in certain part of Kerala in issuing commissions one after another. There are cases of issuing three or four commissions for the very same purpose. No such mandate is included any where in R.1 to 13 to O.XXVI. At the same time, we cannot shut our eyes into certain realities which are prevailed in certain part of Kerala in issuing commissions one after another. There are cases of issuing three or four commissions for the very same purpose. Such practice definitely is detrimental to the speedy disposal of the suit and cheaper administration of justice. Both are detrimental to the system and hence has to be deprecated. But at the same time, it does not mean that the Court is not empowered to issue one or two or three commissions if the situation warrants so.” 6. The procedure under Order XXVI Rules 9 and 10 of the Code would apply as far as the local inspection or local investigation is concerned. As seen from Order XXVI Rule 10(3), the court has every power to conduct further inquiry if the court is dissatisfied with the proceedings of the Commissioner which includes either setting aside the commission report or remitting the commission report. 7. We note the Division Bench judgments of this Court in Swami Premananda v.Swami Yogananda [ 1985 KLT 144 ], State v. Kodakkat Pocker and Others [ 1987 (1) KLT 714 } and the judgment of a Single Judge in Sivaraman v. Narayanan [ 1986 KLT 578 ]. In all these cases as above, it was held that the court has power to set aside or remit the commission report. 8. The court will have to consider the application for commission based on the purpose for appointment of the Commissioner. In that the court will have to follow the procedure in accordance with the classification based on the purpose of issuance of commission as differentiated in Order XXVI of the Code. The view taken by the learned Single Judge in Yudathadevus's case (supra) is the correct view in the light of the earlier binding judgments of the Division Bench of this Court. 9. The learned counsel for the respondent, Sri.Mahesh V. Ramakrishnan submits that there is no provision under Order XXVI Rules 9 and 10 of the Code to set aside the commission report or to appoint a fresh commission report. It is submitted that such provision has been made only in matters relating to the appointment of the Commissioner to make partition as provided under Order XXVI Rule 14(3). It is submitted that such provision has been made only in matters relating to the appointment of the Commissioner to make partition as provided under Order XXVI Rule 14(3). It is also submitted that no fresh Commissioner can be appointed without setting aside or remitting the earlier commission report. 10. The present dilemma has arisen in the matters relating to the appointment of the Commissioner for local investigation. It is true that there is no specific mention about setting aside the report under Order XXVI Rule 10(3) of the Code, as it only refers to conduct further 'enquiry'. There is no embargo, according to us, for setting aside a commission report if the court is totally dissatisfied with the commission report. It is also open for the court to remit the commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report. The court can very well appreciate both reports and decide accordingly at the time of the trial. We find a similar view has been taken by the learned Single Judge in K.L.D.& M.M.Board Ltd. v. Achuthan [ 2001(2) KLT 440 ] and Joy Cherian v. George Cherian [ 2009 (2) KHC 969 ]. The power given to the court to 'conduct further enquiry' on being 'dissatisfied' with the report can be exercised in such manner as the court may choose to do so for any cogent reasons. 11. In the light of the discussions, we are of the view that the observation in Francis Assissi's case (supra) is an obiter and is not good law as it was rendered overlooking the statutory provisions as referable for the Commissioner for local investigation under Order XXVI Rules 9 and 10 of the Code by overlooking the earlier binding precedents of coordinate bench. The reference is answered as above. 12. The registry may place this matter before the learned single Judge. We also appreciate both counsel for assisting the court. Post on 16.02.2023. The interim order will continue till then.