AKHTARI BEGUM Vs. NASIM AHMAD

JUDGEMENT

(1.) THIS is an Application under Article 227 of the Constitution challenging the order dated 22nd January, 2003 passed by the Civil Judge (Junior Division), Najibabad in O.S. No. 62 of 1992 whereby an application filed by the petitioners seeking to summon original Will dated 14th July, 1987 in the Court of Judge, Small Causes, Bijnor was rejected. It is not in dispute that this order was passed in the suit filed by the plaintiff -opposite parties in which the petitioners were the defendants.

(2.) A question of some importance has arisen for decision before us whether the order rejecting the application seeking to summon the original Will dated 14th July, 1987 in the Court of Judge, Small Causes, Bijnor could be challenged by way of proceedings under Article 227 of the Constitution in view of the specific provisions contained in Section 115 of the Code of Civil Procedure.

(3.) THE Code of Civil Procedure, 1908 was amended in the year 1977. Before the present amendment of the Code of Civil Procedure, Section 115 of the Code of Civil Procedure was to the following effect: “115. [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate of such High Court and in which no appeal lies thereto, and if such subordinate Court appears -