BAPNA, J.—This is a revision against the decision of the learned Additional District Judge, dated the 17th January, 1952.

2. The petitioners filed a suit for declaration of title to certain movable property in the court of Civil Judge, Jaipur, and suit was fixed for hearing before the Additional Civil Judge on 14th March, 1951, on which date the plaintiffs were to lead their evidence. On that date the plaintiffs wanted an adjournment in order to enable them to produce their evidence and 18th April, 1951, was fixed for the purpose. On this date neither the witnesses for the plaintiffs appeared nor the plaintiffs themselves and the following order was recorded by the learned Additional Judge: —

"The plaintiff and his Vakil are absent. The defendant with his lawyer present. The case was called several times and the court waited till 9-30 A. M. but the plaintiff has remained absent, nor has the plaintiff brought his witnesses or summoned them. He and his lawyer are absent.

It is therefore ordered that the suit be dismissed with costs on account of the default of the plaintiff under Order 17, Rule 2 of the Civil Procedure Code."

3. The plaintiffs filed an application for restoration of the suit on the 17th of May, 1951, and later on also preferred an appeal against the order of 18th April, 1951, to the District Judge. The learned Additional Civil Judge dismissed the application for restoration on the ground that the order of the 18th April, 1951, purported to be under Order 17, rule 3 of the Civil Procedure Code as mentioned in the Order. He also observed that as an appeal had already been filed and therefore the application for restoration was incompetent.

4. The plaintiffs filed an appeal against the order dismissing the application for restoration and the Additional District Judge rejected the appeal on the ground that he was not competent to reopen the question, as in the meanwhile the appeal preferred by the plaintiffs against the order of 18th April, 1951, had been decided by his predecessor on 15th October, 1951, by which the order of 18th April, 1951, was confirmed. He was opinion that in case the plaintiff felt aggrieved against that order his remedy was to approach the High Court against that order. The plaintiffs have filed this revision against the order dismissing their appeal in proceedings for restoration.

5. It was argued by learned counsel for the petitioners that the order of 18th April, 1951, should be deemed to have been passed under Order 17, rule 2 of the Code in spite of the fact that the learned Additional Civil Judge had given reference to Order 17, rule 3 of the Code in support of his order. It was urged that Order 17, rule 3 C. P. C. could only be applicable in case the party was present or if the non-compliance mentioned in the Rule is coupled with the absence of the party. The order passed by the court is not on merits. There is some difference of opinion as to whether O.17, rule.2 or Order 17, rule 3 was applicable in case of default of a party combined with non-performance of any act necessary for the progress of the suit for which time had been allowed by the court. The Madras view expressed in Prativadi Bhayankaram Pichamma vs. Kamisetti Sreeramulu and others (1) (A.I.R. 1918 Mad. 143(2), F.B.). seems to be that if the party makes default in appearance the order passed would be under Order 17, rule 2, irrespective of the fact that there was a further default by non-compliance of the act mentioned in rule 3 of Order 17 of the Code. There is, however a consensus of opinion among the High Courts in India that if there is a default in appearance of a party coupled with the default in compliance of the act referred to in the Rule the court will be justified in applying Order 17, rule 3 C. P. C. if there are materials on record on which to decide the suit forthwith. In case, there are no such materials the only order that could be passed would be under Order 17, rule 2 of the Code. 1. Basalingappa Kushappa Kumb

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