Hon’ble Saumitra Dayal Singh, J.—This appeal has been filed by the defendant against the order of the Additional District Judge, Court No. 3, Bijnor dated 28.2.2013 rejecting the application No. C-3 filed by the defendant-appellant under Order 41 Rule 19 CPC to recall the order dated 14.2.2012 dismissing the appeal on merits though admittedly the defendant appellant had not argued the matter on merits.

2. Briefly, the order-sheet of Civil Appeal No. 27 of 2011 reveals that prior to the dismissal of the appeal on merits on 14.2.2012 certain dates had been fixed in the appeal proceeding. On 13.2.2012, when the matter was last fixed for hearing the counsel for the defendant appellant was present but he merely informed the Court about an adjournment application prepare by him but which he could not be file because his client could not be contacted.

3. It is also relevant on the previous date being 9.2.2012 the counsel for the defendant appellant had filed another application stating, on account of change of officers of the appellant Nagar Palika Parishad a substitution had become necessary. On that application came to be rejected.

4. It is thereafter that the appeal was decided on merits though, undisputedly the counsel for the defendant appellant did not advance any argument on merits.

5. Being faced with such situation, the defendant appellant then filed an application under Order 41 Rule 19 which has been decided by the impugned order wherein the lower Court below as held as under :

“I have gone through the case laws cited above as well as provisions of Order 41 Rule 17 are applicable when appellants were absent and did not participate in the proceeding of appeal, then only one option for appellate Court to dismiss the appeal and not to decide the appeal on merits. But in the present matter, appellate Court has given full opportunity to appellants to argue. From perusal of order sheet of C.A. No. 27/11, it reveals that on 3.2.2012 adjournment application was moved by appellants, which was rejected and case was fixed for argument on 7.2.2012. Thereafter, appeal was fixed for argument on 9.2.2012. Another adjournment application was also moved by appellants which was also rejected and case was fixed on 14.2.2012. Opportunity was given to appellant by appellate Court to make arguments on 13.2.2012. On 13.2.2012 another adjournment application was also moved by appellants, which was also rejected by appellate Court and appeal was decided by appellate Court on 14.2.2012 on merits dismissing the appeal.

I have also perused the impugned judgment and found that appellate Court has decided the appeal on merit. This Court has no jurisdiction to challenge the impugned judgment. Only remedy is available to appellants to file second appeal against impugned judgment before Hon’ble High Court. The provisions of order 41 Rule 17 and 19 CPC are not applicable in this matter. Therefore, restoration application is not maintainable and is liable to be dismissed.”

6. Learned counsel for the appellant submits from the recital in the impugned order itself it is clear, on one hand, the lower appellate Court fixed short dates in the matter though difficulty cited by the defendant appellant was not such as could have been remedied within that short time granted by the lower appellate Court. On the other hand, it is clear from that order that adjournment had been sought by the defendant appellant which was rejected. Thereafter, the impugned order is silent and there is no observation whatever any argument had been advanced by the defendant appellant upon rejection of the adjournment application.

7. In fact, it is not disputed by learned counsel for the plaintiff respondents that no argument was advanced on behalf of the defendant appellant in that appeal. He however submits that before the order dated 14.2.2012 came to be passed more than sufficient opportunity had been granted to the defendant appellant and that being fully aware of those procee