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Abdul Jalil Vs. Humera Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.463
AppellantAbdul Jalil
RespondentHumera Bibi and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 36 66, 120, 588 - order directing a party to appear in person--section not mentioned under which personal appearance ordered--appeal. - .....respondents takes a preliminary objection that no appeal lies. the only sections of the code of civil procedure which authorise a court to order attendance for party in person are sections 36, 66 and 120. the order appealed against does not state under which of these section it is passed. it appears to us that it cannot possibly be an order either under section 36 or 66. it is clear from the terms of the order that the learned subordinate judge considered that he was acting under the code of civil procedure. we are of opinion, therefore, that although he does not quote any section, he must be deemed to have been acting under section 120 of the code. we do not think that the mere omission to quote the section under which he acted 'would render the order one which is not appealable......
Judgment:

1. This is an appeal from an order of the learned Subordinate Judge of Jaunpur directing the appellant, who was one of several defendants in a suit brought by the respondent Musammat Alia Bibi, to appear in person in his Court. The learned advocate for the respondents takes a preliminary objection that no appeal lies. The only sections of the Code of Civil Procedure which authorise a Court to order attendance for party in person are Sections 36, 66 and 120. The order appealed against does not state under which of these section it is passed. It appears to us that it cannot possibly be an order either under Section 36 or 66. It is clear from the terms of the order that the learned Subordinate Judge considered that he was acting under the Code of Civil Procedure. We are of opinion, therefore, that although he does not quote any section, he must be deemed to have been acting under Section 120 of the Code. We do not think that the mere omission to quote the section under which he acted 'would render the order one which is not appealable. Section 588 of the Code of Civil Procedure gives an appeal in every case whether under Section 36, 66, or 120 in which a party is ordered to appear in person. We are of opinion that the appeal lies and we overrule the preliminary objection.

2. Coming to the merits of the case, and regarding the order as one passed under Section 120, we are of opinion that the appeal must succeed. The appellant appeared by pleader. Section 120 provides that if the pleader of a party refuses or is unable to answer any material question relating to the suit, and if the Court is of opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person, in that case the Court may order such party to appear in person. Now the order under appeal gives no reason whatever to justify the order. It merely says that it is necessary that the male defendant should appear in person.' We do not think that such an order can be justified. We accordingly allow the appeal with costs and set aside the order of the Court below directing the appellant to appear in person.


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