1. This petition has been filed on behalf of the appellants-petitioners for review of the judgment of a Bench of this Court dated 17-4-2007 by which Miscellaneous Appeal No. 574 of 2000 was dismissed on merits at the stage of final hearing only after hearing the learned counsel for the respondents as learned counsel for the appellants were absent.

2. The said appeal was filed by the petitioners on 20-10-2000 under the provision of Order XLIII Rule 1 (j) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) against order dated 21-9-2000 by which the learned Subordinate Judge 1, Nalanda dismissed Miscellaneous Case No. 25 of 1990 (13/1994) filed by the petitioners for setting aside auction sale of the said properties and also for stay of further proceeding relating to delivery of possession in Execution Case No. 11 of 1989 arising out of Title Suit No. 117 of 1981 which was filed by opposite party 1st Set and was decreed against the petitioners, who were defendants in the suit.

3. The said miscellaneous appeal was admitted on 18-2-2002 by a Bench of this Court while hearing under Order XLI Rule 11 of the Code, whereafter the procedure of Rule 12 etc. of the said Order was also complied and both the plaintiffs-respondents appeared in the appeal and the case was listed for final hearing on 17-4-2007. However, on 17-4-2007, no one appeared on behalf of the appellants, whereas learned counsel for the said respondents were present. Hence the Hon ble Court before which the appeal was placed, heard learned counsel for the said respondents and dismissed the appeal on merits by a well discussed and reasoned judgment dated 17-4-2007.

4. The appellants-petitioners have filed this civil review petition challenging the said judgment dated 17-4-2007 passed in the miscellaneous appeal on the ground that without hearing the appellants counsel at the time of hearing, the appeal cannot be dismissed on merits and that the only recourse for the Court in case of absence of appellants or their counsel is either to adjourn the hearing of the appeal or to dismiss the appeal in default under the provision of Order XLI Rule 17 of the Code.

5. On the other hand, learned counsel for respondent-opposite party No. 1 submitted that Rule 17 of Order XLI is only applicable to the dismissal of an appeal under Order XLI Rule 11 of the Code and not with respect to dismissal of an appeal under Rule 30. He further submitted that Section 107 of the Code gives wide powers to the appellate Court and no such restriction is imposed stopping any Court from deciding an appeal on merit in case of absence of the appellant when the case is called out for final hearing. In support of his contentions, learned counsel for the opposite parties placed reliance on a decision of Rajasthan High Court in case of Dargah Committee, Ajmer v. Smt. Hamida Banu and another, reported in AIR 1988 Rajasthan 169.

6. Learned counsel for respondent-opposite party No. 2, namely the State Bank of India, submitted that only on technicality, a well considered and reasoned order of this Court passed in the miscellaneous appeal should not be reversed, especially when learned counsel for the appellants-petitioners have failed to show any other illegality on merits in the order sought to be reviewed. In this connection, he relied upon a decision of the Hon ble Apex Court in case of Anjula Verma v. Sudhir Verma, reported in AIR 2002 Supreme Court 1447. He further submitted that the impugned order may be treated as an order of dismissal for default as per Rule 17, amenable to Rule 19 of Order XLI of the Code and hence there is no question of its review.

7. After hearing the parties and considering the respective points raised by them, this Court finds necessary to consider the concerned provisions of law, which are as follows :

(a)

Rule 16 of Order XLI of the Code provides that when an appeal is fixed for hearing, firstly the appellant shall be heard in suppo