JUDGMENT

1. This application in revision is directed against an appellate order of the District Judge of Pilibhit, affirming an order of the learned Munsif of Pilibhit by which that officer imposed a fine of Rs. 50 on the applicant u/s 32, Civil P.C.

2. The applicant was summoned as a witness in a civil suit by the plaintiff of that suit. The summons was duly served on him and he was required to attend the Court on 19th May 1927, but he failed to appear on that date. The plaintiff filed an application that, before the evidence is recorded, arguments be heard on a question of law that called for determination in the case. This application was granted and the Court decided the case on a preliminary point and no evidence was recorded.

3. The learned Munsif called on the applicant to show cause why he should not be fined u/s 32, Civil P.C. The applicant filed a written statement embodying the reason for his failure to attend the Court on 19th May 1927, and prayed that he be excused for having disobeyed the summons. The learned Munsif, however, was disposed to take a serious view of the matter because the applicant:

is a lawyer and is expected to care for law more than an ordinary man

and passed the order referred to above.

4. The applicant filed an appeal in the Court of the District Judge. In appeal before him it was argued that there was sufficient cause for the applicant's failure to appear in Court in obedience to the summons and that in any case, without a previous order of attachment under Order 16, Rule 10, the learned Munsif had no jurisdiction to impose fine on the petitioner. The learned Judge came to the conclusion that no sufficient cause had been made out by the petitioner for his failure to attend the Court on 19th May 1927. This finding of the learned Judge is a finding on a question of fact and cannot be, and has not been assailed, before us.

5. In support of the argument that the learned Munsif had no jurisdiction to pass the order, reliance was placed on behalf of the applicant on two cases decided by the Calcutta High Court via.: Ram Gopal v. Secy, of State [1918] 31 C.L.J. 363 and Ashutosh Mullick v. Secy. of State [1918] 57 I.C. 302. Both are single Judge decisions and in those cases it was held that no order can be passed under Rule 12, Order 16, unless there has been a previous order of attachment under Rule 10, Order 16. The learned Judge after noticing the fact that "no distinction can be founded upon the fact" that the order was passed by the Munsif u/s 32 and not under Order 16, Rule 12 of the Code, proceeded to examine the provisions of Order 16, Rules 10 and 12, and came to the conclusion that a Court has jurisdiction to pass an order imposing a fine u/s 32 and Order 16, Rule 12 of the Code, even though there has been no previous order for attachment. He gave the following two reasons for not following the decisions of the Calcutta High Court. In the first place he pointed out that as attachment under Order 1. (3), Rule 10 is to be an attachment of property of the witness:

to such an amount, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12,

it follows that

imposition of fine under Rule 12 takes place before the order of attachment under Rule 12.

6. The second reason assigned by him was that the wording of Rule 12 by which the Court:

is authorized to order the property of the witness to be attached and sold, or, if it has already been attached under Rule 10 then to be sold,

confirms the view that the fine may be imposed even in cases where there has been no attachment.

7. This application was put up for hearing before a learned Judge of this Court and his attention was drawn to the case of In Re: Peta Narasayya, AIR 1925 Mad 1247 in which it has been held that neither the issue of a proclamation, nor an order for attachment of property under Rule 10, Order 16, Civil P.C., is a condition precedent to the imposition of a fine under Rule 12 and he, in view of the co