JUDGMENT S.A. Sathar Sayeed, J. 1. The plaintiff is the appellant. She filed the suit for a declaration of her title to the suit property and also for recovery of possession of the same after the removal of the superstructure standing thereon put up by the defendant. She also prayed in the plaint for a permanent injunction restraining the defendant from further putting up constructions on several grounds which I need not dilate. The trial Court decreed the suit in so far as the declaration sought for by the plaintiff with respect to the suit property as per the Commissioner's plan Ex.C-2 is concerned and in other respects the suit was dismissed. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred A.S.No. 190 of 1981 before the District Judge, Tiruchirapalli. At a time when the appeal was taken up by the learned District Judge, the plaintiff/appellant herein did not appear and the Counsel appearing for the appellant had reported no instructions with the result, the lower Appellate Court observed that the appellant was called absent and thereafter, the lower Appellate Court dismissed the appeal by going into the merits of the case. I find from the judgment of the lower Appellate Court that the learned District Judge has framed points for consideration for the disposal of the appeal and on each point, after discussion, the learned Judge has given a finding and has thus dismissed the appeal. Against the dismissal of the above appeal, the plaintiff/appellant herein has filed the above second appeal. 2. The second appeal was admitted and the substantial question of law that was framed was "whether the lower Appellate court could dispose of the appeal on merits when the appellant was absent?" 3. Learned Counsel Mr. M.V. Krishnan appearing for the appellant relies on Order 41, Rule 17, Civil Procedure Code, and contends that on the day when the hearing of the appeal was fixed, if the appellant, does not appear, the Court may make an order that the appeal be dismissed. There is a further Explanation to Rule 17 of Order 41, Civil Procedure Code, that nothing in this Sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. There is a further Explanation to Rule 17 of Order 41, Civil Procedure Code, that nothing in this Sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. It is contended by the learned Counsel for the appellant that if the lower Appellate Court has dismissed the appeal of the appellant for default, he would have taken out a petition before the Appellate court to restore the appeal and to set aside the order of the lower Appellate Court. But in this case, the learned District Judge has gone into the merits of the case with the result a decree was passed wherein the rights of the parties are declared by the dismissal of the appeal. It is this that has led the appellant to file the above second appeal. 4. After hearing the arguments of the learned Counsel appearing for the appellant, I am of the view that the entire judgment and decree of the lower Appellate Court have to be set aside. The duty of the lower Appellate Court, when the appellant is absent, is to dismiss the appeal for default. This is what is contemplated under Order 41, Rule 17, Civil Procedure Code. There is an Explanation to the said rule which is to the effect that "nothing in this Sub-section shall be construed as empowering the Court to dismiss the appeal on the merits". Instead, as to why the lower Appellate Court has gone into the merits of the case, is not clear. 5. Learned Counsel Mr. Padmanabhan appearing for the respondent contends before me that even the second appeal filed before this Court is not maintainable, since it is not a decree passed by the lower Appellate Court. I am of the view that when once the rights of the parties are discussed and adjudicated in the appeal, it is a judgment and when a judgment is rendered, it follows by a decree and this decree enables the appellant to file a second appeal. 6. Let us now consider Section 2(2), Civil Procedure Code, which is as follows: (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. 6. Let us now consider Section 2(2), Civil Procedure Code, which is as follows: (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. It is thus clear that there is a formal expression of an adjudication expressed by the Court determining the rights of the parties. It is not a mere order of dismissal for default. Therefore, delivery of the judgment on merits will be followed by a decree and if that is so, the appellant is entitled to file the present second appeal. Therefore, the argument of the learned Counsel for the respondent that the second appeal is not maintainable, is unsustainable. 7. The District Judge should have dismissed the appeal for default more particularly when the appellant's Counsel reported 'ho instructions" and the appellant was also called absent. Without further wasting time in this matter, I am of the view that interest of justice demands that the judgment and decree of the lower Appellate Court in A.S.No. 190 of 1981 have to be set aside and they are accordingly set aside and this second appeal is allowed. But there will be no order as to costs. 8. The appellant herein is directed to take out petition before the lower Appellate Court within ten days from to-day and on such filing of the application, the lower Appellate Court, after giving notice to the parties, will pass appropriate orders on that application.