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Patna High Court

RAMJI PRASAD YADAV and ORSversusSMT.SHAFALI RANI and ORS

Decided
Disposal
D.F.D. FOR NON APPEARANCE

Holding

The appeal was dismissed for default under Order XLI Rule 17 of the CPC.

Summary

The appellant filed a second appeal which was scheduled for hearing, but neither the appellant nor the respondent appeared despite repeated calls. The court noted that previous orders (dated 23-06-2022, 18-02-2025, and 30-03-2026) also recorded non‑appearance of counsel for both parties. Under Order XLI Rule 17 of the Code of Civil Procedure, 1908, the court is empowered to dismiss an appeal for default when no party appears. Consequently, the court dismissed the second appeal for default and granted liberty to the appellant or his heirs to apply for re‑admission under Order XLI Rule 19. The lower court records were ordered to be returned to the trial court for execution, if applicable.

Issues considered

  • Can a second appeal be dismissed for default under Order XLI Rule 17 of the CPC when no party appears?
  • Is liberty to apply for re‑admission of a dismissed appeal under Order XLI Rule 19 permissible?

Legislation cited

Subjects

  • default judgment
  • civil procedure
  • appeal dismissal
  • non‑appearance
  • Order XLI
  • re‑admission of appeal

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 SECOND APPEAL No.468 of 1989
                  ======================================================
                  RAMJI PRASAD YADAV and ORS

                                                                       ... ... Appellant/s
                                                  Versus
                  SMT.SHAFALI RANI and ORS

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Appellant/s    :    None
                  For the Respondent/s   :    None
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
                                        ORAL ORDER

16   07-04-2026                 None appears either on behalf of the appellants or on

                    behalf of the respondents, even after repeated calls.

                                2. Upon perusal of the record, it transpires to this

                    Court that vide order no.13 dated 23.06.2022, vide order no.14

                    dated 18.02.2025 & vide order no.15 dated 30.03.2026, none

                    appeared either on behalf of the appellants or on behalf of the

                    respondents. On the previous occasion, this Court has directed

                    that if none appears on behalf of the appellants on the next

                    appointed date, then appropriate order shall be passed in

                    accordance with law. Today also, despite repeated calls, none

                    appears on behalf of the appellants.

                                3. In this background, this Court has no option but to

                    dismiss the present Second Appeal for appellant’s default under

                    Order XLI Rule 17 of The Code of Civil Procedure, 1908 (Act

                    No.5 of 1908). Liberty is hereby granted that the appellants or
             Patna High Court SA No.468 of 1989(16) dt.07-04-2026
                                                          2/2




                       their heirs/legal representatives may file an application for re-

                       admission of appeal under Order XLI Rule 19 of The Code of

                       Civil Procedure, 1908 (Act No.5 of 1908) which has been

                       dismissed for default.

                                    4. Office is directed to return the Lower Court

                       Records to the concerned trial court after four weeks for

                       execution, if applicable in the present case.



                                                                    (Dr. Anshuman, J)
Divyansh/-

U


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