JUDGMENT I.B. Singh, Member. - This is an application dated 13-11-1979 filed by respondent supported with affidavit for setting aside exparte judgment and decree dated 16-10-1979 passed by my Ld. predecessor deciding the appeal exparte on merits. Counter affidavit and rejoinder affidavit to the counter affidavit have been filed. 2. I have heard the Ld. Counsel for the parties and have perused the record. 3. It has been argued on behalf of the applicant that no notice was served on Mr. G.N. Verma, the Ld. counsel for the respondent for 16-10-1979 although prior to it he had been given notices; that the application is maintainable under order XLI Rule 21 of the C.P.C. Reasonable cause has been shown that the applicant was served by a registered post card by the O.P.'s appellant's counsel on 14-10-1979 for the hearing of the appeal at Meerut although dozens of adjournments were given to the appellant and hearing was adjourned for summoning the goshwara of a previously decided case which was material that the applicant was present and has requested orally for adjournment of the case which was rejected and he had gone to take water mark and steps for giving writing adjournment application and in the meanwhile the appeal was hurriedly decided. 4. It was argued in reply that the applicant had not shown reasonable cause. He had notice and he was also present, therefore, the order passed by the learned Member Sri J.S. Gupta on 16-10-1979 cannot be treated as ex-parte order, it should be treated as on merits and the application is not maintainable, he ought to have applied either for review or ought to have gone in writ, Reliance has been placed on order 17 rules 2 and 3 of the C.P.C. and on Rudra Nath Mishra v. Kashi Nath Mistra and others, A.I.R. 1975 Alld. 209, Mt. Roop Kunwar v. Deputy Commissioner, Kheri and another, A.I.R. 1945 Oudh 303, Baji Lal and others v. Nawal Singh, A.I.R. 1971 Alld. 216. 5. Order XIX Rule 17 of the C.P.C. provides the dismissed of the appeal for default. Its explanation provides that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits and its sub-rule 2 provides that the appeal shall be heard exparte if the respondent does not appear. 216. 5. Order XIX Rule 17 of the C.P.C. provides the dismissed of the appeal for default. Its explanation provides that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits and its sub-rule 2 provides that the appeal shall be heard exparte if the respondent does not appear. Rule 18 of the Order XLI of the C.P.C. provides for dismissal of appeal where notices were not served in consequence of appellant's failure to deposit costs etc, for being issued to the respondent and rule 19 of that order provides for re-admission of appeal dismissed for default and rule 21 provides for rehearing of the appeal on the application of the respondent against whom exparte decree was passed. There is no provision in Order XVII rules 2 and 3 of the C.P.C. therefore the rulings cited above are not applicable to the present case. No Order like Order under Order XVII Rule 2 explanation 2 or under Order XVII Rule 3 of the C.P.C. can be passed by appellate court i.e. Order XVII Rules 2 and 3 of the C.P.C. entitled only the trial court to pass final orders on merits if evidence has been orders on merits if evidence has been led any any party is absent on the date fixed for further evidence. He shall be deemed to be present as provided under Order XVII rule 2 of the C.P.C. and the trial court is authorised to pass final orders on merits. Under Order 17 rule 3 of the C.P.C. if it is an adjourned hearing either at the instance of parties or at the instance of any party and any party is present but does not act in the hearing of the proceedings final order on merits can be passed and in both such cases as has been held in the above ruling only appeal was maintainable and no application for setting aside such order was maintainable and it was held in A.I.R. 1975 Allahabad page 209 that even if such order is written to be ex-parte it shall not be considered to be ex parte. Only the order passed under XVII Rule 2 explanation I of the C.P.C. will be considered exparte order even though it is not so written to be exparte order. 6. Only the order passed under XVII Rule 2 explanation I of the C.P.C. will be considered exparte order even though it is not so written to be exparte order. 6. A.I.R. 1917 Allahabad page 216 is not applicable to the present case and A.I.R. 1945 Oudh page 303 is also not applicable to the present case because in that case the appellants' counsel had not appeared although he was aware of the date and had initiated the previous order sheet which is not the case at present. 7. In para 3 of the impugned order the learned Member himself has written that "no counsel is present on behalf of the respondent. The appeal has, therefore, been heard ex-parte. Mansingh respondent was himself present first but left later". From this order it is abundantly clear that when the appeal was heard neither the counsel for the respondent who had no notice at all of the date fixed which was fixed at Meerut on the application of the appellant and even respondent was not present when the appeal was heard and it appears that he had actually gone to bring written application for adjournment. Therefore, as there is no provision in Order XLI like the provisions of Order XVII Rule 2 Explanation and Rule 3 of the C.P.C. the order passed by my learned predecessor will be deemed to be only an ex parte order and as sufficient cause has been shown. The application is, therefore, liable to be allowed and the objection is liable to be rejected. 8. In view of the above, this application dated 13-11-1979 for setting aside exparte judgment which is within time is allowed and the exparte judgment and decree dated 16-10-1979 is set aside and the appeal shall be reheard. The respondent is allowed to file documents in rebuttal to the documents admitted by my learned brother holding them to be necessary for just decision of the case. The rebuttal shall be filed within December 1980. The appeal shall be listed for final hearing on January 12, 1981. The parties shall be entitled to summon register Goshwara if they like for the date fixed for which several adjournments were granted but of no avail.