VIRABADRAN CHETTY Vs. NATARAJA DESIKAR

JUDGEMENT

(1.) The appellants obtained a decree against the late Pandara Sannadhi of Tiruvannamalai Mutt in the Madura District for moneys lent to him. In execution of the decree certain gold and silver pooja articles &c, were attached and seized. The respondent, the present head of the Mutt, who had been made a party to the execution proceedings as the representative of the deceased, raised a contention that the attached articles were not liable to be sold in execution of the decree as they were not assets of the deceased but property appertaining to the Mutt. With reference to the investigation of the claim thus made, the appellants applied to the Subordinate Judge of Madura East to summon the respondent as a witness for the appellants. The respondent thereupon applied to the Subordinate Judge to take his examination on commission suggesting at the same time that he was not in a position to give, of his own personal knowledge, any evidence material to the questions at issue and that the appellants insist on his appearance in Court merely with a view to put pressure upon him and make him give up his claim or bring about a compromise, it being considered derogatory to heads of Mutts in the position of the respondent to appear in Court as witnesses. The Subordinate Judge refused to grant the respondent's application on the ground that the respondent being resident within the jurisdiction of the Subordinate Court and not being a person legally exempted from appearing as a witness in Court nor incapacitated from doing so by illness or infirmity, it was not competent to the Court to issue a commission for the examination of the respondent. On revision Mr. Justice Boddam set aside the order of the Subordinate Judge and directed that the respondent be examined on commission.

(2.) It is contended for the respondent. 1. that the order of the learned Judge did not amount to a Judgment so as to allow of an appeal under the Letters Patent being preferred against it; 2. That even in the circumstances relied on by the Subordinate Judge it is competent to the Courts of this country to direct the examination of a witness on commission if for adequate reasons it is thought fit to do so; and

(3.) That assuming neither of these contentions is well-founded the circumstances of the casi show that the appellants are seeking to compel the respondent's appearance not bona fide, but solely to obtain am improper advantage. 3. With regard to the first question I am unable to agree that the learned Judge's order does not amount to a judgment within the meaning oi Section 15 of the Letters Patent. A litigant is undoubtedly entitled to insist on the appearance of witnesses who could give evidence material to his case and if the examination of a material witness with reference to whom the issue of a commission is not warranted by law, is wrongly ordered to be taken on, commission in spite of the objections of the party entitled to examine him in the presence of the Judge and in open Court the order so passed must cleirly be held to deal with the question of the right, on the ono hand, of the party seeking the personal attendance in Court and, on the other, of the liability of the person claiming to avoid it.