Spencer, J.

1. The appellant was summoned on 26th January 1924 to appear as a witness on 8th February. He did not appear and a warrant was issued and he was fined Rs. 40 for disobedience of summons. His explanation was that, as he was going to Court, after arriving at the place where the Court was held, he was met by the plaintiff and defendants who told him that the case had been adjourned. We have no means of testing whether this statement was true. The parties were not examined to corroborate him, but the Judge did not accept the explanation. He only gave him five days time to pay the fine.

2. It is argued that the Subordinate Judge acted without jurisdiction inasmuch as there was no issue of a proclamation or attachment of property before the fine was imposed. This argument is based on the decisions in Ashutosh Mullick v. Secretary of State [1920] 57 I.C. 302 and Ram Gopal v. Secretary of State [1920] 31 C.L.J. 363. I regret that I must express dissent from the opinion of two learned Judges of the Calcutta High Court who decided these oases. I am unable to construe the provisions of Rules 10 to 12 of Order 16 of the Civil Procedure Code as meaning that the issue of a proc