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Report No. 83

9.7. Section 47 and orders under section 42.-

The next point relating to section 47 concerns orders under section 42. There seems to be a certain amount of obscurity1 on the question whether an appeal lies against an order appointing a second guardian under section 42. The order is not specifically mentioned in the List of appealable orders as given in section 47.

The Chief Court of Sind has taken the view2 that the order under section 42 really falls under section 7 and is therefore appealable. On the other hand according to the Calcutta view3 an appeal does not lie against an order under section 42, but if the Court, before passing such an order, has not complied with the procedure for removal of the guardian under section 39, then an appeal would lie against the order of removal.

In our opinion, this is a matter on which the position should be specifically laid down in the Act, particularly in view of the well recognised rule that a right of appeal must be given expressly. Having regard to the nature and effect of the order, there can hardly he any doubt as to the need for a right of appeal.

1. Para. 8.12, supra.

2. Ghulam Hider v. Abdul, (1914) 7 Sind Law Reporter 90: 23 Indian Cases 776.

3. Mahabir v. Bidhi Chand, (1914) 20 Cal LJ 298: 27 Indian Cases 28.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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