1. Heard Mr. Kamat, learned Counsel appearing on behalf of the appellants and Mr. Narvekar, learned Counsel appearing on behalf of the respondents.

2. This appeal is filed, by the original defendants of the suit who were appellants in Regular Civil Appeal filed before the District Judge, South Goa along with Civil Miscellaneous Application No. 122 of 2009 for condonation of delay in filing the said appeal, against the order dated 06/01/2009, passed by the District Judge-2, Margao (First Appellate Court), in the said Civil miscellaneous Application No. 112 2009.

3. After hearing the learned Counsel, limited question that arises in the present appeal is as follows:

“Whether the First Appellate Court was competent to decide the application for condonation of delay in filing the appeal and consequently the appeal, on merit when on the date of hearing none appeared on behalf of the appellants and whether the Court was bound to dismiss the application/appeal for want of prosecution or non-appearance in view of the Order XLI Rule 17(1) of Civil Procedure Code instead of hearing and deciding the application on merits?”

4. The appeal stands admitted on the above substantial question of law.

5. The learned Counsel appearing on behalf of the respondents waives service of notice for final disposal. By consent, heard finally.

6. The respondents had filed Regular Civil Suit No. 20/2002/B against the appellants for declaration, permanent injunction and other consequential reliefs. By judgment, order and decree dated 29/11/2003, the said suit was decreed. Against the said Judgment, order and decree, the present appellants had filed Regular Civil Appeal before the District Court at Margao and since there was delay in filing the said appeal, they had also filed a Civil Miscellaneous Application no. 112/2009 for condonation of delay. It is admitted fact that as on the date of hearing of the said application for condonation of delay, neither the appellants nor their advocate was present. The matter was heard ex-parte and by the impugned order dated 06/01/2010, the said application for condonation of delay was dismissed by the First Appellate Court, with costs of Rs. 200/-. In the impugned order, soon after the cause title, itself, the learned First Appellate Court has noted that the appellants and their advocate was absent at the time of arguments as well as order. Again, in paragraph no. 5 of the order, it is mentioned that Advocate for the appellants was absent and that only the advocate for the respondents was heard.

7. A dismissal of an application for condonation of delay results in the dismissal of the appeal which can only be under Order XLI, Rule 11 of C.P.C. It is because of the above that the Appellant had withdrawn the writ petition which was earlier filed challenging the order dated 06/01/2009, and had filed the present Second Appeal, in view of the judgment of the Apex Court holding that against an order dismissing an application for seeking condonation of delay in first appeal, Second Appeal would lie.

8. Once, it is sure that the dismissal of application for condonation of delay results in dismissal of appeal under order XLI Rule 11, it can be said that the provision of Rule 17 of Order XLI of C.P.C. is applicable to the application for condonation of delay also. Said Rule 17 of Order XLI of C.P.C. provides as under:

“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.

Explanation: Nothing this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte. — Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.”

9. Mr. Kamat, learned Counsel appearing on behalf of the appellants has relied upon the