JUDGMENT Ghulam Hasan and Madeley, JJ. - This is a miscellaneous appeal under Order XLIII rule 1 (t) of the CPC from the order of the learned District Judge of Sitapur dismissing the appellant's application for rehearing of the appeal under Order' XLI, rule 21 of the Code of Civil Procedure. 2. A preliminary objection has been raised that the appeal under Order XLI 11 is incompetent and reliance is placed on Ashiq Ali v. Abdus Sayeed Khan 1938 OA 384 : A W R (CC) 47 : OWN 494. It is urged that the U. P. Encumbered Estates Act is self-contained in the matter of appeals and the appeal could only lie u/s 45 (2-a) of that Act. Under that sub-section the appeal could be argued on one or more grounds mentioned in Section 100 of the Code of Civil Procedure. It is contended that there is no error of law or of procedure in the order of the lower appellate Court and consequently no appeal lies. For the appellants it is urged on the authority of a Bench decision in AIR 1943 214 (Oudh) . Oudh 214 that as the order passed by the lower appellate Court is not one under the provisions .of the Encumbered Estates Act but is one under Order XLI of the CPC an appeal lies under Order XLIII of the Code of Civil Procedure. We are of opinion that sub-Section (2-a) of Section 46 does not apply. Under sub-Section (2) an appeal against any decree or order finally disposing of the case of a Special Judge of the second grade lies to the District Judge and u/s (2-a) an appeal to the Chief Court lies from an appellate order of a District Judge passed under sub-Section (2) aforesaid. In the present case the appellant who had filed an application u/s 4 of the Act had included certain property in her written statement. The respondents filed objections u/s 11 claiming the property as theirs. These objections were dismissed on the merits by the Special Judge, second grade. An appeal was .preferred to the District Judge by the respondents and as the appellant did not appear on the date fixed for hearing, the appeal was decreed ex-parte. 3. An application to re-hear the appeal was made under rule 21 of Order XLI, but this was rejected. An appeal was .preferred to the District Judge by the respondents and as the appellant did not appear on the date fixed for hearing, the appeal was decreed ex-parte. 3. An application to re-hear the appeal was made under rule 21 of Order XLI, but this was rejected. The present appeal is directed against the order refusing to re-hear the -appeal. It is obvious, therefore, that order of the District Judge in appeal was not one passed under sub-Section (2). If the appeal had been heard and a decision given one way or the other, a second appeal would have been permissible under sub-Section (2-a) on the grounds mentioned in Section 100 of the Code of Civil Procedure. The appellate order of the District Judge, however, against which the appeal is preferred was not one passed on the merits of the appeal but one refusing to re-hear the appeal decreed ex-parte. Such an appeal would in our opinion lie under Order XLIII rule 1 (t), which clearly refers to an order of refusal under Order XLI rule 21 to re-hear the appeal. It was held in Raj Kunwar's case that in proceedings under the Encumbered Estates Act an order by the Special Judge rejecting an application for review is not an order under the Encumbered Estates Act but an order under ' the CPC and therefore Section 45 (1) does not apply and an appeal is barred by Order XLVII rule 7 of the Code of Civil Procedure. 4. In Ishaq Ali's case a preliminary objection was raised to the maintainability of the revision u/s 115 of the CPC on the ground that an appeal lay against the order of the Special Judge, second grade, dismissing the application to have the order of dismissal of the application u/s 4 of the Encumbered Estates Act for failure to deposit the publication charges set aside. Mr. Justice Yorke, who upheld the objection, held that an appeal lay to the District Judge u/s 45 (2) against both the orders, viz., the order dismissing the application u/s 4 for failure to pay the publication charges arid the order refusing to restore that application. u/s 45 (2), as it stood un- amended at the time of the order every decision decree or order of the Special Judge, second grade, was appealable to the District Judge. u/s 45 (2), as it stood un- amended at the time of the order every decision decree or order of the Special Judge, second grade, was appealable to the District Judge. After the amendment in 1939 only such decrees or orders were appealable as finally disposed of the case. The learned Judge did not accept the interpretation that the right of- appeal under sub-Section (2) of Section 45 existed only against decision, decrees or orders which fell specifically under the Act. The learned Judge also expressed the opinion that to say that the right of appeal against the orders in cases under the Encumbered Estates Act was governed by the provisions of Order XLIII of the CPC was clearly inconsistent with the provisions of clauses (1) and (2) of Section 45 of the Encumbered Estates Act which provided for an appeal against any decision, decree or order of the Special Judge of the second grade. Rule 6 of the Rules made by the Local Government u/s 54 of the Act was also invoked in support of this view. 5. In the present case there is no inconsistency. Under rule 6 as it now stands the whole of CPC has been made applicable to the Act provided the provisions of the Code are applicable and not inconsistent with the provisions of the Act and the rules. The appellate order passed by the District Judge was not one under sub-Section (2) of Section 45. It was an order under the CPC and a right of appeal is conferred by the Code against such an order under Order XLIII rule 1 (t). If Order XLIII is applied to such a case, we do not think that it would be in- consistent with the provisions of the Encumbered Estates Act. A right of appeal under the CPC cannot be taken away against an order passed not under any provisions of the Encumbered Estates Act but under the provisions of the Code of Civil Procedure. We hold, therefore, that the preliminary objection has no force. 6. Upon the merits, however, we are of opinion that the appeal has no substance. The appellant was represented before the Special Judge by Pandit Ram Das Chaturvedi, Advocate. The same Advocate represented her before the lower appellate Court and actually attended on two hearings, namely the 20th September, 1939, and the 4th November, 1939. 6. Upon the merits, however, we are of opinion that the appeal has no substance. The appellant was represented before the Special Judge by Pandit Ram Das Chaturvedi, Advocate. The same Advocate represented her before the lower appellate Court and actually attended on two hearings, namely the 20th September, 1939, and the 4th November, 1939. As the Court was busy on that date, the appeal was adjourned for hearing to the 7th December. On this date neither the Advocate nor the appellant's mukhtar Kamta Prasad, who was no other than her own son, appeared. The appeal was decreed ex parte on the 20th December. On the 18th January, 1940, the appellant applied for setting aside the exparte decree and filed an affidavit of Kamta Prasad. It was stated in the affidavit that Kamta Prasad was suspected in a certain murder case and remained absconding in November and December 1939. It was also stated that the advocate Pandit Ram Das Chaturvedi was a resident of Lakhimpur and could not attend the hearing of the appeal. In this Court an affidavit was filed by the appellant herself stating that her son Kamta Prasad used to stay in Lakhimpur in connection with cases and as he was absconding she was unable to give any instructions to the Advocate. The appellant further states that she is a pardanashin lady and was not aware of the date of hearing fixed in the case, She further states that she had been HI in November 'and December 1939. Even if ,we accept the statement that Kamta Prasad was absconding in November and December 1939, we can find no reason why the Advocate did not attend the hearing of the appeal on the 7th December, ye was aware of this date and had initialled the order-sheet of the 4th November. He represented the appellant throughout and it was hardly necessary for him to receive any further instructions in the matter. The mere fact that he lived in Lakhimpur was no ground for not appearing on the date of hearing. He had actually appeared in Sitapur on two previous dates. No affidavit of the Advocate is filed to show what prevented him from appearing. We are not prepared to believe that the appellant would have been unaware of her son's absconding if this was so. He had actually appeared in Sitapur on two previous dates. No affidavit of the Advocate is filed to show what prevented him from appearing. We are not prepared to believe that the appellant would have been unaware of her son's absconding if this was so. The learned District Judge in refusing to set aside the ex parte decree held that the non- appearance of the appellant's mukhtar on the ground that he was absconding because he was suspected in a murder case was not sufficient cause within the meaning of Order XLI rule 21 of the Code of Civil Procedure. Whether this is so or not, we cannot see any ground for the Advocate not appearing in the case when he must be deemed to have had full instructions, having appeared on two previous hearings, and required no more. 7. Accordingly we hold that there is no ground for interference with the order of the lower appellate Court. We dismiss the appeal with costs.