Order.-This revision is directed against an order of the District Judge, South Arcot, Cuddalore passed in I.A. No. 582 of 1972 in C.M.A. No. 141 of 1971. The petitioners in the revision are the petitioners-appellants in the Court below. The respondents herein are also the respondents in the Court below. C.M.A.No. 141 of 1971 was dismissed on 13th June, 1972. Admittedly, neither the appellants nor their counsel were present to prosecute the appeal before the Court below. In such a case, there cannot be any dispute that the Court below has to pass orders under Order 41, rule 17 of the Code of Civil Procedure. Instead of doing so, the Court below observed that there are no merits in this appeal and the appeal is dismissed with costs. I.A. No. 582 of 1972 is filed by the petitioners-appellants to restore C.M.A. No. 141 of 1971 disposed of in the aforesaid manner by the Court below. The petitioners-appellants invoked the provisions of Order 41, rule 19 of the Code of Civil Procedure.

2. The Court below dismissed I.A. No. 582 of 1972 on a reasoning that C.M.A. No. 141 of 1971 was not dismissed for default, but on merits and therefore the application in I.A.No. 582 of 1972 cannot be entertained and accordingly it dismissed the same. The present revision is directed against the orders of the Court below in the said I.A. No. 582 of 1972.

3. Thiru R. S. Venkatachari, learned counsel for the petitioners, submits that when none was present to prosecute the appeal the Court below had no competency to dismiss the appeal on merits and it has got power only to dismiss the appeal for default under Order 41, rule 17 of the Code of Civil Procedure. There is substance in this contention put forth by the learned counsel. It has been held by a Division Bench of this Court consisting of Sir William Ayling and Odgers, JJ., in Musaliarakath Muhamed v. Manavikrama the Zamorin Rajah Avergal1, that where an order under Order 41, rule 17, of the Civil Procedure Code ought to have been passed, and the Judge decided the case on merits, the order was ultra vires. This principle has been recognised by Venkatesam, J., of the Andhra Pradesh High Court in Rachakonda Lakshmidevamma v. Pogoku Ramanna and another2 . The learned Judge held that “it is not incumbent on the Court when the appellant’s counsel has not aruged the appeal, to pronounce the judgment on merits as was done in this case”. This dictum has also been followed by two Division Benches of the Patna High Court in the decisions reported in Mosafir Mahton v. Mt. Bachani3and Deo Dutta Singh v. Ram Naresh Singh4. When the appellant does not appear either by himself or through his counsel, when the appeal is called for hearing, the Court may either adjourn it or dismiss it for default. In such a contingency, it is not open to the Court to decide the appeal on merits and dismiss it. It has no power to dismiss the appeal on merits. If such an order is passed, it can still be stated that it is only an order under Order 41, rule 17 of the Code of Civil Procedure and not an order under Order 41, rule 30 of the Code of Civil Procedure. Though the Court may say that it has dismissed the appeal on merits, it must be held to be only an order under Order 41, rule 17 of the Code of Civil Procedure. The same question came for consideration before the Punjab High Court in Kundha Singh v. Punjab State5 , Pandit, J., observed as follows:

“Where instead of dismissing the appeal for default, the appellate Court dismisses it on merits, the order dismissing the appeal on merits in the absence of the appellant would be treated as an order of dismissal for default ; such an order cannot come within the definition of the word ‘decree’ as given in section 2(2). Therefore, no appeal lies from such an order and the only remedy of the aggrieved party is to move an application under Order 41 rule 19”.

4. To set at rest the above controversy as to whether the Court has got power to dismiss an appeal under Order 41, rule 17 of the Code o

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