Raina, J.

( 1. ) The following questions have been referred to this Bench for opinion by a Division Bench while dealing with this appeal:

(1) Whether it is open to the Court to proceed under Order 17, Rule 3 of the Code of Civil Procedure in the absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so? (2) Where the Court has proceeded to decide the case on merits under Order 17, Rule 3, of the Code of Civil Procedure in the absence of a party, is it open to the party aggrieved by the decision to Hie an application for setting aside the decree by an application under Order 9 of the Code? (3) Where the party aggrieved prefers an appeal against a judgment and decree under Order 17, Rule 3 of the Code of Civil Procedure, is the Appellate Court bound to allow the appeal, merely on the ground that the Court had no jurisdiction to pass an order under Order 17, Rule and to substitute an ordei under Order 17, Rule 2 of the Code, leaving the defaulting party to take recourse to an appropriate remedy under Order 9 in the lower Court; or whether the appellant cannot succeed unless he is able to show that there was suffi-c