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TMI Blog1922 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... resent in court and applied for an adjournment (M.P. No. 378 of 1920). This was refused. As far as I can gather, he seems to have then simply informed the court that as he had no instructions or papers, he could not argue the appeal and to have taken no further part in the proceedings. In these circumstances the Subordinate Judge instead of at once dismissing the appeal for default under Order 41, Rule 17 considered the evidence bearing on appellant's claim with reference to his appeal memorandum (1 use his own words) and dismissed the appeal with costs. 2. Mr. K.P.M. Menon contends that it was not competent to the court to inquire into the merits of the case in the absence of appellant and his pleader; but only to deal with it under Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority on what constitutes default and I observe that in a later case Venkatarama Ayyar v. Nataraja Ayyar (1913)24MLJ235 another Bench of this Court has held, without reference to it, that where the Vakil was not instructed to argue the case but only to apply for an adjournment there was no appearance. 5. Proceeding then on the footing that appellant was unrepresented was it competent to the Subordinate Judge to go into the merits of the case? 6. It seems to be clear law that under the Codes preceding the present Code an appellate Court in such circumstances had no power to go into the merits: vide Mohesh Chun der v. Thakur Dass 20 W.R. 425 quoted with approval in Satish Chundra Mukerjee Ahara Prasad Mukerjee I.L.R. 34 Cal. 403. 7. For resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... readmission can have no application. The only possible remedy for such an appellant that is suggested is an application for review. But it is by no means clear that such an application would lie in view of the provisions of Order 47, Rule 1 and in any case it could only be entertained by the same judge as dismissed the appeal. Moreover there would be no appeal against the rejection of the application for review, such as is provided in the case of an application under Order 41, Rule 19. 10. There is very little authority on this point, probably because it is most unusual for an appellate Court to go into the merits of an appeal liable to be dismissed for default. We have only been referred to two decisions each by a single judge of the Patn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts in the cause. Odgers, J. 13. The question in this appeal is whether the Subordinate Judge was right in discussing the case on its merits and dismissing it thereon instead of merely passing an order of dismissal of the appeal for default under Order 41, Rule 17. This would entitle the unsuccessful appellant to apply for readmission of the appeal under Rule 19 of the same order. In this case the appeal was not argued as the appellant had given no instructions to his vakil though the appeal is said to have come on in the presence of Mr. V. Sivarama Panikker, Vakil for the appellant.' The Vakil was therefore certainly present and I must assume that he informed the Judge has appears from the judgment) that he had no instructions and coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther and I think it must be taken that an appellant represented by a pleader who says he has no instructions and cannot proceed has not appeared. Under Section 556 of the Code of 1882 the court was bound to dismiss an appeal if the appellant did not attend the word used in Order 41. Rule 17 is 'may'. Does this mean that the court may decide the case on the merits? If it does the decision if against the appellant is only open to review under Order 47, Rule t and the only clause applicable would be 'any other sufficient reason' I think it very doubtful if the court would apply this clause in which case the appellant who (or whose pleader) might have some quite legitimate ground for failing to appear at the hearing of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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