JUDGMENT

Ryves and Daniels, JJ. - The appellant before us was the judgment-debtor, and on an application being made to execute the decree against him, he objected that the application was time-barred. The trial court dismissed the objection. The objector appealed and on the date fixed for the hearing of the appeal failed to put in an appearance, and he was not represented by counsel. The learned District Judge recorded the following order:

Counsel for the appellant is absent. Appellant is himself absent. His brother, or a person alleging himself to be his brother, applies for an adjournment. I see no good reason to grant this. There does not Seem to me to be the least force in this appeal; the reasons given by the Subordinate Judge for holding that the application of the decree-holder respondent for execution was in time and not time-barred, are good and sound. I dismiss this appeal, with costs, on the merits.

2. The appellant comes here in second appeal and urges that under Order XLI, Rule 17, the learned District Judge should not have dismissed the appeal on the merits, but should either have allowed an adjournment or should have dismissed it for default. This point was considered recently in the Madras High Court, in Muhammad v. Manavikrama ILR (1922) Mad. 882 and we entirely agree with that decision.

3. A preliminary objection is taken that no appeal lies, on the ground that on the appellant's own showing the court below had no jurisdiction to pass the order which it did pass. The form which the argument takes is this. The only order which the court below had jurisdiction to pass was an order dismissing the appeal for default. The order under appeal must, therefore, be treated as an order dismissing the appeal for default, since this is the only order the court below could legally pass. From such an order no appeal lies.

4. The argument is ingenious but unsound. The right of appeal does not depend on what the court ought to have done but on what it actually did. What it actually did was to pass a decree on the merits. Against such a decree the law allows an appeal.- When the appeal comes up for decision, the appellate court has then to decide whether the order passed was a proper order and one which the court below had jurisdiction to pass. If it decides this question in the, negative, it will set the order aside. The respondent's reasoning would deprive the aggrieved party of the right of appeal just in those cases in which it is most needed. The respondent relies in support of his argument on two old cases Kanahi Lal v. Naubat Rai ILR (1881) All 519 and Krishna Raw v. Gobind Prasad ILR (1883) All. 20. These were decisions under the old Act, the language of which is different from that of the present Code. But if there is anything in these cases to support the position taken up by the respondent, we are unable to follow them. The result is that we allow the appeal. The question involved is one of law and we should have been prepared to dispose of it ourselves, but all the documents which have been relied on by the court of first instance are not before us. We, therefore, allow the appeal and pass the order which we think the court below should have passed, that is, to dismiss the appeal to the court below for default. If the appellant wishes to restore the appeal, he must apply to the court below and satisfy that court that the appeal should be restored. We make no order as to costs.