JUDGMENT : P.C. Misra, J. - This is an appeal under Order 431 Rule 1 (t) of the CPC (hereinafter called the ?Code?) challenging the order of the Subordinate Judge, Bhanjanagar refusing to rehear the appeal on merits. 2. Respondent No. 1 was the Appellant in Money Appeal No. 3/81 who had been unsuccessful in a suit brought by him against the Appellant and original Respondent No. 2. The appeal was once dismissed for default of the present Respondent No. 1 in the Court below. The appeal was restored in M. J. C. No. 43 of 1983 by the lower appellate Court pursuant to an application under Order 41, Rule 19 of the Code. After the restoration of the appeal it was posted to 19-4-1984 on which day the present Appellant and Respondent No. 2 who were Respondents in the Court below did not appear and the appeal was heard ex parte. The appeal was allowed by judgment dated 26-2.1984 with costs and a decree was drawn up accordingly on 5.4-1984, The present Appellant filed M. J. C. No. 24 of 1984 under Order 41, Rule 21, CPC praying for rehearing of the appeal on the ground that no notice was served on him either before or after restoration of the appeal and, therefore, he had no opportunity of contesting the appeal. The Subordinate Judge by the impugned judgment refused to rehear the appeal on the ground that notice on the present Appellant and Respondent No. 2 was not obligatory for which reason he found that there was no sufficient ground for the absence of the Respondent on the date fixed for hearing of the appeal. 3. Mr. Mohanty, learned Counsel appearing for the Appellant has raised various points against the legality of the order passed by the Subordinate Judge. He has strenuously urged that the present Respondent No. 1 who had brought the suit as the Plaintiff having been unsuccessful in the suit had preferred the appeal in the Court below. His appeal was dismissed for his default and the order of dismissal created a right in favour of the present Appellant and Respondent No. 2, and therefore, the appeal could not be restored without due notice to them. His appeal was dismissed for his default and the order of dismissal created a right in favour of the present Appellant and Respondent No. 2, and therefore, the appeal could not be restored without due notice to them. He has further urged that even assuming that no notice to the present Appellant was necessary at that stage, he was entitled to a notice after the appeal was restored and again fixed for hearing. His contention is that substantial prejudice has been caused to him as no notice at any stage was given for which reason he could not contest the appeal when it was called on for hearing. He has also made out another point that the Subordinate Judge has erred in law in setting the Respondents ex parte in the appeal by which they were debarred from appearing in the appeal and contest the same on subsequent dates. 4. Mr. Kar, learned Counsel for the Respondent No. 1 contends that the present Appellant having been set ex parte earlier to the appeal being dismissed for default, he was not entitled to the notice, in the matter of restoration of the appeal or after the appeal was restored. He has further argued that the lower appellate Court has considered different aspects of the matter and his conclusion cannot, therefore, be interfered with in this appeal. In order to appreciate the contention of both parties, a reference to different provisions of the CPC is necessary. Order 41 Rule 17 (2) of the Code gives the procedure to be adopted when the Appellant appears and the Respondent does not appear.. The provision is that where the Appellant appears and the Respondent does not appear, the appeal shall be heard ex parte. The Subordinate Judge in a similar situation has adopted the procedure prescribed under Order 9, Rule 6 of the Code by setting the Respondent ex parte and adjourning the ex parte hearing of the appeal to a future date. It is needless to emphasize that Order 9, Rule 6 of the Code provides the procedure when the Plaintiff appears and the Defendant does not appear when the suit is called on for hearing. In a case where summons have been duly served on the Defendant the provision in the said Rule is to make an Order that the suit be heard ex parte. In a case where summons have been duly served on the Defendant the provision in the said Rule is to make an Order that the suit be heard ex parte. Rule 7 of that Order gives the procedure where the Court has adjourned the hearing of the suit ex parte and the Defendant at or before such hearing appears and assigns good cause for his previous non-appearance it authorises the Court to condone the default of the Defendant and permit him to contest the suit if good cause for his default is shown as if he had appeared on the day on which he was set ex parte. Learned Counsel appearing for the Respondents invited my attention to the provisions contained in Section 107 of the Code to contend that the appellate Court shall have the same powers and perform the same duties as are conferred and Imposed by the Code on the Courts of original jurisdiction in respect of the suits instituted there and for that reason the provisions contained under Order 9. Rules 6 and 7 are applicable to appeals. Section 107 (2) of the Code is based on the general principle that the appellate Court should be possessed of the same powers and duties as are conferred and imposed by the Code on the original Courts which means that it may pass any order which could be or ought to have been passed by the original Court. The words ?as nearly as may be? occurring in the said sub-rule imply that the appellate Court shall be vested with the powers which are vested on the Courts of original side so far as may be necessary in the interest of justice. The rules contained in Order 9 of the Code provide the procedure where one of the parties appear and the other does not appear when the suit is called on for hearing. Similar procedure has been provided under Order 41 of the Code to govern the procedure to be adopted by the appellate Court. When the Respondent does not appear when the appeal is caned on for hearing, as already stated, the appellate Court may proceed with the hearing of the appeal ex parte as provided in Order 41, Rule 17 (2) of the Code. When the Respondent does not appear when the appeal is caned on for hearing, as already stated, the appellate Court may proceed with the hearing of the appeal ex parte as provided in Order 41, Rule 17 (2) of the Code. It does not authorise the appellate Court to set the Respondent ex parte and fix the appeal to a future date for ex parte hearing. Even in cases to which Order 9 of the Code is applicable this Court has held in a number of decisions that setting a Defendant ex parte would not preclude him .from participating in the hearing of the suit in a subsequent stage. The only effect of Order 9 Rule 7 of the Code is to set the clock back by putting the Defendant in the same position which he occupied on the date when he was set ex parte. In my view, therefore, the procedure adopted by the learned Court below in setting the Respondent ex parte was improper as not in accordance with the provisions in the CPC Code. In this view of the matter the analysis of the learned Court below that one of the parties to the appeal who had been set ex parte earlier was not entitled to notice when the proceeding under Order 4]. Rule 19, CPC was initiated must be held to be misconceived. In the impugned judgment the learned Subordinate Judge has remarked at one stage that since the Respondent before him did not show sufficient cause which prevented him from appearing in the Court on the day he was set ex parte, his claim that he was entitled to notice in the restoration proceeding is not acceptable. This observation has no foundation in law and has influenced the learned Court below to reject the application under Order 41, Rule 21, CPC Since prejudice appears to have been caused to the present Appellant by a wrong procedure adopted by the Court below, I think it is proper that the appeal should be reheard. I accordingly allow this appeal, set aside the impugned judgment and direct that the appeal shall be taken to be pending in the Court below and shall be heard afresh giving opportunities to both the parties. In the facts and circumstances of this case, there shall be no order as to costs. Final Result : Allowed