NASIR KHAN Vs. ITWARI

JUDGEMENT

(1.) 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/s. Manavikrama (1922) I.L.R. 45 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.