(1) This appeal is brought on behalf of the decree-holder against the order of the Additional Subordinate Judge, Chapra, dated the 28th September, 1959, by which the order of the Munsif of Chapra dated the 26th May, 1959, exempting an area of 17 kathas 16 dhurs of the land of the judgment-debtor under the provisions of Section 15 of the Bihar Money-Lenders Act, has been up-held.

(2) The main point taken by the appellant is that the order of the lower appellate court dismissing the appeal on merits is ultra vires because the appellant did not appear in court on the date the appeal was called on for hearing, and under the provisions of Order XLI, rule 17 of the Code of Civil procedure the only course open to the appellate court was either to adjourn the case or to dismiss the appeal ex parte. In our opinion, the argument of learned counsel is well-founded and must be accepted as correct. Order XLI, Rule 17, Civil Procedure Code, -is to the following effect:

"17. (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." Order XLI, Rule 17 in the present Civil Procedure Code corresponds to Section 556 of the old Code where the expression "shall be dismissed" has been used. In our opinion, this change of language does not mean that it is open to the appellate court to go into the merits of the appeal when the appellant has not put in appearance on the date fixed for hearing. In our opinion, the change of the language only means that the appellate court has jurisdiction either to dismiss the appeal for default, or to adjourn it to some other date. We think that the language of Order XLI, Rule 17 does not warrant the appellate court to hear the appeal in the absence of the appellant and to decide the appeal on merits. The reason is that the law contemplates that for a decision of appeal on merits the appellate court must hear both parties to the appeal and then give a decision. That is the procedure laid down by Order XLI, Rule 30 of the Code of Civil Procedure which states as follows: "30. The appellate court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open court, either at once or on some future day of which notice shall be given to the parties or their pleaders."

This view is supported by the contrast of the language of Order XLI, Rule 17 (2) which empowers the appellate court to hear the appeal ex parte "where the appellant appears and the respondent does not appear". For these reasons we hold that upon a proper interpretation of Order XLI, Rule 17 (1), the appellate court has no jurisdiction to hear the appeal on merits where the appellant does not appear at the time the appeal is called on for hearing. The only course open to the appellate court in these circumstances is to adjourn the case to another date, or to make an order dismissing the appeal ex parte. This view is borne out by the decision of the Madras High Court in Musaliarakath Muhammad v. Manavikrama, ILR 45 Mad 882 [LQ/MadHC/1922/100] : (AIR 1923 Mad 13 [LQ/MadHC/1922/100] ), the decision of the Calcutta High Court In Taher Sheikh v. Otaruddi Howladar, AIR 1929 Cal 475, and the decision of the Allahabad High Court in Nasir Khan v. Itwari, AIR 1924 All 144 [LQ/AllHC/1920/331] . Reference was made on behalf of the respondent to a decision of a single Judge of the Patna High Court in Daulat Singh v. Kesho Prasad Singh, AIR 1921 Pat 325, but with great respect we think that this case has not been correctly decided.

(3) For these reasons, we hold that the judgment of the learned Additional Subordinate Judge of Chapra dated the 28th September, 1959, should be set aside and the appeal should now go back to him for re-hearing and for being dealt with in accordance with law. We accordingly allow this appeal and remand the case for re-hearing to the Additional Subordinate Judge, Chapra, There will be no order as to costs of this appeal in the High Court.