Patna High Court
RAMJI PRASAD YADAV and ORSversusSMT.SHAFALI RANI and ORS
- Decided
- Disposal
- D.F.D. FOR NON APPEARANCE
- Bench
- ANSHUMAN
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
- Code of Civil Procedure, 1908 — s. Order XLI Rule 17, Order XLI Rule 19
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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