JUDGMENT G. C. Mathur, J. - This is an appeal against the order of the Civil Judge, Azamgarh, rejecting an application made by the appellants for setting aside his judgment by which he had allowed the appeal ex parte. The appellants who were respondents in the appeal before the Civil Judge filed the application under Order 41, Rule 19 though it could lie only under Order 41, Rule 21 of the Code of Civil Procedure. 2. One Padarath and opposite parties Nos. 1 to 4 filed a suit against the appellants in the Court of the Munsif Haveli, Azamgarh, for injunction and, in the alternative, for possession, in respect of a certain plot of land. The suit was dismissed by the Munsif and the plaintiffs filed an appeal. March 24, 1971 was fixed for the hearing of the appeal but, on that date, on the application of the appellants, it was adjourned for hearing to May 6, 1971. On the adjourned date of hearing, the counsel for the appellants filed an application for adjournment of the hearing of the appeal on the ground that appellant No. 1, Badri Pande, was ill and had not been able to attend the Court. On this application, the counsel for the plaintiff wrote that one of the respondents Bechan Pande (appellant No. 2 in this appeal) was present in court and that the application had been made merely to delay the hearing of the appeal. To this application, a telegram from Badri Pande from Kheri, was attached which stated that he was ill and which directed his counsel not to attend the Court. The appellate court rejected this application, heard the counsel for the plaintiffs and fixed May 24, 1971 for judgment. On May 21, 1971, the counsel for the appellants moved another application praying that a date for the hearing of the appeal may be fixed sometime in July. The application was again based on the ground that Badri Pande was ill. To this application, a medical certificate was annexed. The Court asked the counsel for the appellants to argue the appeal on behalf of the appellants but he declined to do so. The Court thereupon rejected the application. On May 24, 1971, the appellate court delivered judgment allowing the appeal, setting aside the judgment and decree of the Munsif and decreeing the suit. The Court asked the counsel for the appellants to argue the appeal on behalf of the appellants but he declined to do so. The Court thereupon rejected the application. On May 24, 1971, the appellate court delivered judgment allowing the appeal, setting aside the judgment and decree of the Munsif and decreeing the suit. Thereafter on July 24, 1971, an application under Order 41, Rule 19 and Sec. 161 of the Code of Civil Procedure, was filed by the appellants for setting aside the ex parte judgment and decree. An application under Sec. 5 of the Limitation Act was also filed by the appellants for condoning the delay in filing the application for setting aside the ex parte judgment and decree. The lower court held that there was no sufficient cause made out for the delay in filing the application for setting aside the judgment and decree. It further held that since the appeal had been decided on merits, an application under Order 41, Rule 19 of the Code of Civil Procedure was not maintainable, that since the appellants had also filed a second appeal in this Court, the application under Order 41, Rule 19 of the Code of Civil Procedure had become infructuous and that, in any case, there was sufficient opportunity and time for the appellants to contact their lawyer and to argue the case, if they liked. It further observed that even if appellant No. 1 was ill, appellant No. 2 could very well have contacted the lawyer and got the appeal argued. In this view, the lower court rejected the application. 3. Learned counsel for the appellants has challenged all the findings of the court below. I will first deal with the questions whether the application under Sec. 5 was properly rejected and whether the application for setting aside the ex parte judgment and decree became in fructuous on account of the filing of a second appeal in this Court against the judgment and decree of the lower court. 4. So far as the application under Sec. 5 of the Limitation Act is concerned, the facts are these. The judgment was delivered by the lower court on May 24, 1971 and on the very next day, i.e., on May 25, 1971, the appellants counsel applied for a certified copy thereof. 4. So far as the application under Sec. 5 of the Limitation Act is concerned, the facts are these. The judgment was delivered by the lower court on May 24, 1971 and on the very next day, i.e., on May 25, 1971, the appellants counsel applied for a certified copy thereof. The appellants were advised by the counsel that since the judgment was given on merits, an application for restoration did not lie and only a second appeal could be filed in this Court. The copy of the judgment was ready on July 17, 1971 and after obtaining it, the appellants came to this Court and filed a second appeal. They were, however, advised by their counsel here to move an application for setting aside the ex parte judgment and decree also. They accordingly returned post haste and, on July 24, 1971, filed the application together with an application under Sec. 5. The delay in filing the application was entirely due to the wrong advice given by the appellants counsel that no application under Order 41, Rule 19 could be filed and as soon as the appellants counsel in the High Court gave them advice to the contrary, they rushed back and filed the application. In these circumstances, the delay in filing the application was entirely due to the wrong advice given by the counsel for the appellants in the lower court and when there is no negligence or laches on the part of the appellants, it must be held that there was sufficient explanation for the delay. The application under Sec. 5 should have been allowed by (he lower court. 5. The lower court is not right in holding that the application under Order 41, Rule 19 became in fructuous on the filing of the second appeal. Both the remedies were open to the appellants, namely, to file a second appeal in this court and to file an application for setting aside the ex parte judgment and decree. There is no provision in the Code of Civil Procedure which bars one remedy if the other one is resorted to. It is obvious that the scope of the two remedies is entirely different. The remedies are not mutually exclusive and the application for setting aside the ex parte judgment and decree was maintainable even though the appellants had filed a second appeal in this Court. 6. It is obvious that the scope of the two remedies is entirely different. The remedies are not mutually exclusive and the application for setting aside the ex parte judgment and decree was maintainable even though the appellants had filed a second appeal in this Court. 6. The Civil Judge was also not right in holding that the application was not maintainable as the appeal had been decided on merits. Though an appeal in which the appellant is absent, may be dismissed in default of appearance or on merits, an appeal in which the appellant is present, has necessarily to be decided on merits, whether the respondent appears or not (see Babu Ram v. Bhagwan Din, 1965 A.L.J. 462 Full Bench). Order 41, Rule 17 (2) provides that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. The judgment given after such a hearing will be on merits though it will be ex parte. Order 41, Rule 21 permits the respondent to make an application to set aside such an ex parte judgment even though it is on merits on the ground that he was prevented by sufficient cause from appearing at the hearing. The application filed by the appellants was, therefore, maintainable under Order 41, Rule 21. 7. The question which then arises for consideration is whether the appeal was decided by the Civil Judge ex parte as contemplated by Order 41, Rule 17(2) or not. In other words, whether the respondents in the appeal before the Civil Judge could be said not to have appeared at the hearing of the appeal. In the present case, on the date fixed for the hearing of the appeal, the counsel for the appellants who were respondents in the appeal before the Civil Judge, filed an application for adjournment which was rejected. Thereafter the counsel took no further part in the hearing of the appeal. After hearing the arguments of the appellants in that appeal, the Civil Judge reserved judgment and then on a later date delivered judgment allowing the appeal. The question is whether in a case like the present one the appeal can be said to have been heard and deeded ex parte against the respondents in that appeal. 8. Order 9, Rule 6 provides that if the plaintiff appears and the defendant does not appear, the suit may proceed ex parte. The question is whether in a case like the present one the appeal can be said to have been heard and deeded ex parte against the respondents in that appeal. 8. Order 9, Rule 6 provides that if the plaintiff appears and the defendant does not appear, the suit may proceed ex parte. Likewise, Order 41, Rule 17(2) provides that where the appellant appears and the respondent does not appear, the appeal shall be heard and decided ex parte. Order 9, Rule 8 provides that if the defendant appears but the plaintiff does not appear, the suit shall be dismissed in default and Order 41, Rule 17(1) provides that if the appellant does not appear, the appeal may be dismissed in default. In all these provisions, the word "appears" connotes the same thing, i.e., appears for the purpose of prosecuting or defending the suit or appeal. The signification of the term "appearance" has been considered in several cases. 9. In Lalta Prasad v. Nand Kishore, I.L.R. 22 Allahabad 66 (F.B.), the question which arose for consideration was, where in an appeal the counsel appears only for making an application for adjournment of hearing and the Court refuses the adjournment and dismisses the suit, the dismissal is for default or on merits. The Full Bench held that it was not an "appearance" within the meaning of Sec. 102 (which corresponds to Order 9, Rule 8 of the Code of Civil Procedure 1908) when the plaintiff is represented only by a pleader who is without instructions enabling him to proceed with the case and who is merely instructed to apply for an adjournment. 10. In Satis Chandra v. Apara Prasad, I.L.R. 34 Calcutta 403 (F.B.), a question similar to the one which arose before this Court in the above mentioned case, arose for consideration. Sri Ashutosh Mukheji observed :- "The term "appearance" is nowhere defined in the Code and, as pointed out by Benson, J., has several significations the word must always be understood in reference to the particular subject-matter to which it relates, and the purpose or and to be answered by the appearance has an important hearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Sec. 556 (now Order 41, Rule 17) of the Civil Procedure Code, and the object to be gained by the attendance or appearance of the appellant on the date fixed for the hearing of the appeal, the mere appearance of counsel to make an application for adjournment ought not to be treated as appearance so as to oust the jurisdiction of the Court to make an order for remission under Sec. 558 (now Order 41, Rule 19) of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party." These observations were accepted by the Full Bench. Harrington, J., one of the members of the Full Bench, observed :- "I do not see now a pleader can be said to attend the hearing, merely because, before the hearing begins, he comes and asks the Court that there may be no hearing. The hearing does not begin till his application is disposed of." 11. In Allah Bux v. Budha, A.I.R. 1939 Alld. 451, again the quest on arose before learned Single Judge of this Court whether in an appeal when the counsel for the appellant appears but is unable to argue the appeal and the appeal is dismissed, the dismissal can be said to be in default It was urged that, in these circumstances, there was no appearance by the appellant and the dismissal was in default. The learned Judge accepted this contention and said :- "I think appearance in the legal sense does not mean a mere physical presence within a certain local area or a room or anything of that kind. I think it means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the Court. It is possible that a party to a suit or other proceeding might physically be present in Court and might not make his presence known to it. I think it means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the Court. It is possible that a party to a suit or other proceeding might physically be present in Court and might not make his presence known to it. In these circumstances, I should certainly think that there was no appearance in the legal sense of the term In the present case, it seems that neither the appellant nor his counsel asked the Court to decide the appeal on its merits even in the absence of arguments and, therefore, I should say that they did not in the legal sense put in an appearance." 12. Before a Full Bench of the Bombay High Court in Basalingappa Kushappa Kumbhar v. Shidramappa Irappa Shivanagi, A.I.R. 1943 Bombay 321 (F.B.), the question whether there was appearance by the defendant or not, arose in connection with an application under Order 9, Rule 13. In this case, the defendant was absent on the date of hearing but his pleader who was present, withdrew for want of instructions. The suit was heard on merits and decreed. The question whether the decree was ex parte against the defendant. The Full Bench held that there was no appearance by the defend at the hearing and that the decree was ex parte against him. It was observed as follows:- "Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom he can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the case, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refuses to take part in the trial on the ground that he has no instructions and he withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree." 13. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree." 13. A similar question arose before a Division Bench of Nagpur High Court in Motilal Surajmal Joshi v. Mohamad Shafi, A.I.R. 1956 Nag. 179. The Division Bench held that when a counsel for the defendant only appears and requests for an adjournment and, on refusal of the same, reports "no instruction", then there is no appearance of the defendant as such in the case and further proceedings against the defendant are ex parte. 14. In Sikandar Ali v. Kushal Chandra Sarma, A.I.R. 1932 Cal. 418, a Division Bench of the Calcutta High Court held:- "So far as this High Court is concerned, and the same view has been adopted in the Madras and Patna High Courts, it is settled that where a counsel appears on behalf of a party and presents an application for adjournment which being refused he retires from the case, the party should be taken as not having appeared in the suit." It was further observed :- "The word "appear" in Order 9, Rule 8 apparently means "appearing in the suit". A party may be present in the precincts of the Court or he may be found present in the Court room but if he does not take part n the suit it cannot be said that he has appeared. This is what is meant by Order 9, Rules 6 and 8. If a plaintiff comes to Court and files an application for adjournment and when the application is refused he retires from the suit, though he may not have physically retired from the Court he is not to be considered any longer to be present in the suit and any order passed in such circumstances must be taken to be an order passed ex parte." 15. Before a Division Bench of the Rajasthan High Court in Messrs Chandra Stores, Ajmer v. Cloth Merchants Association, Ajmer, A.I.R. 1964 Rajasthan 197, a similar question arose in connection with an application under Order 41, Rule 19. In this case, neither the appellant nor his counsel in charge of the appeal, appeared on the date of hearing and only the second counsel appeared and applied for adjournment on the ground that he had no instructions in the matter. In this case, neither the appellant nor his counsel in charge of the appeal, appeared on the date of hearing and only the second counsel appeared and applied for adjournment on the ground that he had no instructions in the matter. This application was dismissed, and the appeal was also dismissed. It was held that the appeal was dismissed ex parte. The Bench observed that where a party appears only through a counsel, the mere presence of the counsel would not amount to appearance in the legal sense of the word unless he is duly instructed or able to answer all material questions relating to the suit or the appeal. 16. It thus appears that appearance in a suit or appeal means effective appearance for the purpose of prosecuting or contesting the suit or the appeal. Appearance merely for seeking an adjournment is not appearance at the hearing of the suit or the appeal. This is the sense in which the word "appears" and the expression "does not appear" have been used in Rule 17 of Order 41. Therefore, in the present case when the lawyer for the respondents in the appeal before the Civil Judge, appeared and asked for adjournment of the hearing and, when that was refused, did not take any part in the hearing of the appeal, it must be held that they dd not appear and that the appeal was heard and decided ex parte against them. An application under Order 41, Rule 21 was, therefore, maintainable for setting aside the ex parte judgment on the ground that the respondents were prevented by sufficient cause from appearing at the hearing. Though the application filed before the Civil Judge was headed under Order 41, Rule 19, it was, in substance, an application under Order 41, Rule 21 and should not have been dismissed as not maintainable. 17. The only question which then remains for consideration is whether the application deserved to be allowed on merits or not. The Civil Judge has mixed up the question of the maintainability of the application with the question whether the respondents in the appeal before him were prevented by sufficient cause from appearing at the hearing of the appeal. There has been no proper disposal of the application for setting aside the ex parte judgment and decree on merits. The Civil Judge has mixed up the question of the maintainability of the application with the question whether the respondents in the appeal before him were prevented by sufficient cause from appearing at the hearing of the appeal. There has been no proper disposal of the application for setting aside the ex parte judgment and decree on merits. It is, therefore, necessary to remand the case to the Civil Judge to decide the application on merits, treating it as an application under Order 41, Rule 21 of the Code of Civil Procedure. 18. The appeal is accordingly allowed and the order of the Civil Judge dismissing the application is set aside. The Civil Judge will restore the application to its original number and decide the same in accordance with law and in accordance with the observations made above. The parties will bear their own costs of this appeal. The stay order is vacated. 19. The record of the case will be returned to the Court of the Civil Judge at an early date.