( 1 ) THE appellant herein filed a suit being O. S. No. 41 of 1990 on the file of the Court of the District Munsiff, parchur in Prakasam District for permanent injunction. The suit was decreed. The defendants filed an appeal before the Court of the Subordinate Judge, Chirala, which was subsequently transferred to the Court of the Subordinate Judge, Parchur. The said appeal being A. S. No. 16 of 1995 was allowed ex parte on 10. 3. 1997. Having come to know this, the appellant herein filed i. A. No. 796 of 1997 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), to set aside the ex parte orders of the Appellate Court dated 10. 3. 1997. The learned appellate Judge rejected the said application. Aggrieved by the same, the present civil miscellaneous appeal is preferred.

( 2 ) LEARNED Counsel for the appellant, ms. G. Jhansi, submits that in the affidavit filed accompanying the interlocutory application, the appellant has shown sufficient cause for not being able to prosecute the appeal, that the appellant was not negligent in pursuing the matter and that during the relevant time the appellant along with his son had been to Karnataka for taking up agriculture and, therefore, the lower appellate court ought to have allowed the application. Secondly, she would contend that even if the order was passed by the Appellate Court on 10. 3. 1997 after hearing the defendants, who filed the said appeal, still the Appellate court cannot reject an application by the respondents in the appeal to recall the order and re-hear the appeal. Lastly, she would contend that the learned Counsel engaged by the appellant reported no instructions on 5. 3. 1997 in such an event, a duty was cast on the lower appellate Court to issue notice to the parties.

( 3 ) PER contra, learned Counsel for the respondents (defendants in the suit), sri G. Pedda Babu, submits that when once the order was passed by the lower appellate Court on merits, Order XLI rule 17 (2) CPC is not applicable. Unless and until the respondents in the appeal are able to show that there was no proper notice to them and also show sufficient cause, which prevented them from appearing on the date of hearing, the court cannot pass any orders recalling the earlier orders passed after hearing the appellant.

( 4 ) THE appellant herein filed an application under Order IX Rule 13 CPC presumably under the impression that on 10. 3. 1997 the lower Appellate Court allowed the appeal of the defendants in the suit, ex parte. It was not correct. The learned Senior Civil Judge, Parchur was well within his powers to hear the appellant in the appeal ex, parte and pass appropriate orders in the appeal. Here, a reference may be made to Rules 17, 19 and 21 of order XLI. Rule 17. Dismissal of appeal for appellant s default: (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. Hearing appeal ex parte - (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. Rule 19. Re-admission of appeal dismissed for default: Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. Rule 21. Re-hearing on application of respondent against whom ex parte decree made : Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appe