( 1 ) THIS Misc Second Appeal is preferred against the judgment and decree of the Civil judge, Karwar dated 6. 1. 1988 passed in r. A. No. 44/1988 reversing the decision of the munsiff, Honavar, passed on 26. 5. 1988 in o. S. No. 17/1976.

( 2 ) THE material facts in brief are as follows: The suit in O. S. No. 17/1976 which was pending on the file of the Munsiff, honavar, was posted for evidence of the plaintiffs on 26. 5. 1988. On the said date the parties remained absent and therefore the counsel for the plaintiffs filed an application for adjournment but the adjournment application was rejected and the suit was dismissed for default. Thereafter appeal was preferred before the Civil Judge, Karwar, against the said order of dismissal. The dismissal order was not on merits.

( 3 ) THE appeal was allowed by the appellate Court and the judgment and decree passed by the Trial Court was set aside and the suit was restored to file for disposal of the suit in accordance with law.

( 4 ) THE Appellate Court focussed its attention on the question whether the appeal preferred before it was maintainable under order 17, Rule 2 and 3 of Civil Procedure code. The Appellate Court he