ORIENTAL SALES Vs. BANK OF INDIA

JUDGEMENT

(1.) This is defendants, second appeal directed against the judgment and decree of the Courts below whereby suit of the plaintiff bank (respondent herein) has been decreed.

(2.) Plaintiff-bank filed the suit for recovery of Rs. 2,04,788.40 Ps. Upon contest by the defendants, trial Court decreed the suit with costs and the defendants were held liable jointly and severally to pay the decretal amount. Plaintiff-bank was awarded interest at the rate of 18 per cent per annum with quarterly rests on Rs. 2,04,788/- from the date of the suit till realisation of decretal amount. Plaintiff-bank was further held entitled to realise decretal amount by way of sale of pledged goods and balance, if any, from other property of the defendants. Being aggrieved, defendants filed appeal before the first Appellate Court. On presentation of the appeal, the appeal was admitted and record of the case was called for. Learned District Judge fixed 28.10.1997 for final hearing of the appeal. On the date of hearing of the appeal, neither appellants nor their counsel appeared and the appeal on merits was dismissed. Hence this second appeal.

(3.) In this second appeal, learned counsel appearing on behalf of the appellants has contended that the order of the first Appellate Court dismissing the appeal on merits is erroneous inasmuch as under the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, on non appearance of the appellant or their counsel, the first Appellate Court, has no jurisdiction to dismiss the appeal on merits. At the best, it could have dismissed the appeal in default.