JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri Sumit Daga, learned Counsel for the defendant/appellant and Sri Nipun Singh and Sri B.K. Nagaich, Counsels for the plaintiff/respondents. 2. An original suit No. 392 of 1988, Veer Singh v. Chitranjan Das, was instituted on the ground that the plaintiff is in possession over the disputed property and the defendants are trying to interfere in his peaceful possession and, therefore, they may be restrained from any interference. It is alleged that the defendant Chitranjan Das refused summons, therefore, service was effected by publication in Dainik Jagaran, Lucknow Edition. In spite of the publication, Chitranjan Das failed to put in appearance. Suit No. 392 of 1988 was decreed ex parte in favour of the defendant/appellant. Findings recorded in the aforesaid suit in favour of the appellant was never challenged and he continued to be in possession over the property in question. Subsequently, the present suit No. 54 of 2001 was instituted by the plaintiff/respondent (son of Chitranjan Das) claiming ownership and relief of injunction against the defendant/appellant. The plaintiff claimed ownership and possession which was being interfered by the appellant. The appellant contested the matter by filing written statement and denying plaint allegation and further submitted that there is already a decree in his favour passed in original suit No. 392 of 1988, which has become final and also that the suit is barred by Sections 38 and 41 of Specific Relief Act, 1963. The suit of the plaintiff/respondent was decreed on 12.3.2007, which was challenged in regular civil appeal No. 28 of 2007, which also stood dismissed and the decree was confirmed on 22.3.2007. 3. The instant appeal has been filed after expiry of the period of limitation. However, an application under Section 5 of Indian Limitation Act has been allowed by this Court vide order dated 3.3.2008. 4. Learned Counsel for the defendant/appellant has pressed before me following substantial questions of law, which are quoted below : “(1) Whether both the Courts below failed to consider that the present suit No. 54 of 2001 is barred by Sections 38 and 41 of Specific Relief Act, 1963? 4. Learned Counsel for the defendant/appellant has pressed before me following substantial questions of law, which are quoted below : “(1) Whether both the Courts below failed to consider that the present suit No. 54 of 2001 is barred by Sections 38 and 41 of Specific Relief Act, 1963? (2) Whether both the Courts below failed to consider that a civil suit No. 392 of 1988, Veer Singh v. Chitranjan Das, which was filed by the appellant against the father of respondent No. 1 i.e. Chitranjan Das and the same was decreed on 18.4.1992 in favour of the appellant and thereafter this judgment and decree never been challenged before any Court by anyone, as such decree passed in this suit is final and binding upon all the parties of the suit? (3) Whether the trial Court committed manifest error of law to proceed the suit under Order 17 Rule 3 of the Civil Procedure Code when it is a settled law that if the parties or any of them is absent on the date fixed the Court shall only proceed to decide the suit under Order 17, Rule 2 not Order 17, Rule3?” 5. First submission made by Sri Sumit Daga, learned Counsel for the appellant in support of substantial questions of law is that on previous occasion, a suit was instituted by the defendant/appellant against late Chitranjan Das, father of the plaintiff, which was decreed ex parte. The decree passed against the plaintiff in original suit No. 392 of 1988 was in respect of the disputed property, which is subject matter of the instant suit. Since the judgment and decree is still operative and at no point of time was ever challenged in any Court of law, therefore, it is not open to the plaintiff to re-agitate at the subsequent stage. The suit is, therefore, barred by Sections 38 and 41 of Specific Relief Act as well as principle of estoppel and acquiescence. Copy of the ex parte judgment and decree is annexed as Annexure 3 to the stay application. The decree is in favour of the appellant restraining the defendant Chitranjan Das from interfering in his possession. Copy of the plaint in original suit No. 392 of 1988 is annexed alongwith stay application. Admittedly, the suit was instituted in the month of May, 1988 whereas the plaintiffs father Chitranjan Das died on 4.3.1985. The decree is in favour of the appellant restraining the defendant Chitranjan Das from interfering in his possession. Copy of the plaint in original suit No. 392 of 1988 is annexed alongwith stay application. Admittedly, the suit was instituted in the month of May, 1988 whereas the plaintiffs father Chitranjan Das died on 4.3.1985. Death certificate is a part of the record. 6. The plaintiff had specifically pleaded that the suit instituted in the year 1988 was after three years of death of Chitranjan Das. Besides, address mentioned in the said plaint is also wrong and it is obvious that the suit was instituted against a dead person for procuring an ex parte decree showing fictitious service. The plaintiff claimed that since the suit itself was instituted against a dead person, the decree against Chitranjan Das is a nullity and of no consequence and cannot be given effect to even if the decree was not challenged in a higher Court. The decree passed in original suit No. 392 of 1988, which was instituted after three years of death of Chitranjan Das, is non-est. 7. The plaintiff pleaded specifically in his replication that the ex parte decree cannot be given effect to. The sale-deed in favour of Chitranjan Das was also brought on record. It was also stated by the plaintiff that Chitranjan Das suffered paralytic attack in the year 1984, thereafter he executed power of attorney in favour of the plaintiff, which was adduced in evidence and marked as paper No. 70 Ka. The name of the plaintiff was mutated on 19.3.1988 by virtue of a resolution of the society. A certificate issued by the City Magistrate was also brought on record alongwith an affidavit of the plaintiff Prashant Kumar. Several other documents such as receipt of the house tax, other bills and receipts in respect of the disputed property etc. were adduced in evidence. The two Courts below recorded findings of fact placing reliance on the evidence and holding that Chitranjan Das died on 4.3.1985 and, therefore, refused to take into consideration the ex parte decree dated 18.4.1992. 8. Learned Counsel for the respondents has also laid emphasis on the facts that findings arrived at by the two Courts below that Chitranjan Das was dead much before institution of the instant suit and, therefore, this finding cannot be interfered in the instant second appeal. 9. 8. Learned Counsel for the respondents has also laid emphasis on the facts that findings arrived at by the two Courts below that Chitranjan Das was dead much before institution of the instant suit and, therefore, this finding cannot be interfered in the instant second appeal. 9. I have gone through the judgments of the Courts below and given careful consideration to the arguments of the respective Counsels and I am satisfied with the findings of the Courts below refusing to grant any benefit on the basis of ex parte decree to the defendant/appellant are justified and based on proper appraisal of evidence and conclusion, this cannot be interfered in exercise of jurisdiction under Section 100, C.P.C. In the circumstances, substantial question of law Nos. 1 and 2 are of no help to the appellant. The decree dated 18.4.1992 is not binding on the plaintiff or anyone else since it was against a dead person and findings that service in the said suit alleged to have been effected by publication is of no help and rightly ignored. 10. Last substantial question of law raised on behalf of the appellant is whether the trial Court committed an error of law while proceeding to decide the suit under Order 17 Rule 3, C.P.C. The submission is that he could not do so. Only option open to the Court was to proceed under Order 17 Rule 2, C.P.C. since the appellant was not present at the time when evidence was closed. 11. Further submission is that the trial Court fixed 7.3.2007 for cross-examination of the witnesses and an adjournment application was moved on behalf of the appellant, which was rejected. Another application was moved on 12.3.2007 to recall the orders dated 7.3.2007 and 8.3.2007, which was also rejected. It is also submitted that the appellant was out of station and, therefore, right of the appellant was considerably prejudiced and the trial Court committed substantial error by proceeding to decide the suit under Order 17 Rule 3, C.P.C. The Courts could only proceed under Order 17 Rule 2, C.P.C. but not under Order 17 Rule 3, C.P.C. Order 17 Rules 2 and 3, C.P.C. are quoted below: “2. Procedure if parties fail to appear on day fixed.—Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. [Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.] High Court Amendments ALLAHABAD.—Add the following : “Where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. Explanation.—No party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application.” (28.5.1943) 3. Court may proceed notwithstanding either party fails to produce evidence, etc.—Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,— (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2] High Court Amendments ALLAHABAD.—In Rule 3, put a comma after the first word “where” and insert thereafter the words “in a case to which Rule 2 does not apply.” (17.1.1953). 12. Specific ground was taken before the lower appellate Court that the trial Court erred grossly while proceedings under Order 17, Rule 3, C.P.C. whereas there is no applicability of this provision. Only option for the Court was to proceed under Order 17 Rule 2, C.P.C. Submission is that it was patent error of procedure and the judgments under challenge are liable to be set aside. 13. Only option for the Court was to proceed under Order 17 Rule 2, C.P.C. Submission is that it was patent error of procedure and the judgments under challenge are liable to be set aside. 13. I have perused findings of the lower appellate Court in respect of the error of procedure by the trial Court. The learned District Judge while rejecting this objection on a close scrutiny of the entire order sheet recorded a finding that the suit No. 54 of 2001 was continuing since last 6 years. The defendant was delaying the proceedings on one or other pretext. Learned Counsel for the appellant failed to cross-examine the witnesses and made an endorsement seeking time to file reply when an affidavit was filed on 9.1.2007. The date fixed was 12.2.2007 and subsequently it was adjourned to 7.3.2007. Clear finding is that the witnesses were present in the Court but an adjournment application was moved on behalf of the defendant/appellant and a request was made by his Counsel for fixing the case at 2.00 p.m. for cross-examination but he again failed to appear in the Court. Another adjournment application was moved at 2.20 p.m. but once again he did not appear in the Court. The witnesses had come from different district and the adjournment application was rejected. The defendant’s Counsel specifically refused to cross-examine and thereafter on the next date i.e. 8.3.2007, which was once again the date fixed for cross-examination, another adjournment application was moved on behalf of the defendant/appellant. The lower appellate Court has discussed in detail that the trial Court had no other alternative but to proceed under Order 17 Rule 3, C.P.C. 14. The defendant’s Counsel specifically refused to cross-examine and thereafter on the next date i.e. 8.3.2007, which was once again the date fixed for cross-examination, another adjournment application was moved on behalf of the defendant/appellant. The lower appellate Court has discussed in detail that the trial Court had no other alternative but to proceed under Order 17 Rule 3, C.P.C. 14. Sri Sumit Daga, learned Counsel for the appellant has challenged the said finding that in absence of the party, the trial Court could have proceeded under Order 17 Rule 2, C.P.C. but not under Order 17 Rule 3, C.P.C, in view of the embargo provided under Order 17 Rule 3 (b) C.P.C. In support of his argument on the second substantial question of law has placed reliance on a decision of the Apex Court; Mohandas and others v. Ghisia Bai and others, A.I.R. 2002 SC 2436, wherein the Apex Court held that it was not proper for the Court to reject the application to proceed under Order 17 Rule 3, C.P.C. The Counsel sought time on behalf of the appellant to file revision and also because he was seriously ill. 15. Learned Counsel for the appellant has brought to my notice other decisions; Wadil v. Board of Revenue and others, 1991 ACJ 48; Vishnu Saran Pandey v. Sunil Kumar Bhalotia, 1988 ACJ 528. In these two decisions, the Court was of the view that an order passed in absence of the defendant and his Counsel would be an order under Order 17 Rule 2, C.P.C. and, therefore, an application for setting aside the ex parte decree is maintainable. 16. However, this is not the fact of the present case since adjournment application was repeatedly moved on different occasions by the Counsel for the appellant, time was fixed for cross-examination and then the learned Counsel failed to do the needful. 17. Last submission on behalf of the appellant is that though the Court proceeded to decide the case under Order 17 Rule 3, C.P.C. but the judgment was delivered on a subsequent date i.e. 12.3.2007. 18. 17. Last submission on behalf of the appellant is that though the Court proceeded to decide the case under Order 17 Rule 3, C.P.C. but the judgment was delivered on a subsequent date i.e. 12.3.2007. 18. Sri B.K. Nagaich, learned Counsel for the respondents has disputed each and every argument advanced on behalf of the appellant and submits that there was no illegality committed by the trial Court in proceeding under Order 17 Rule 3, C.P.C. Emphasis has been laid on the explanation appended to the Order 17 Rule 2, C.P.C. as well as Allahabad High Court Amendments. Explanation under Order 17 Rule 2, C.P.C. provides where the evidence or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may in its discretion proceed with the case as if such party were present. This explanation read with explanation to Allahabad High Court Amendments provides that no party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application. In the instant case, findings recorded by the lower appellate Court shows that the learned Counsel has sought time by moving an application and was personally present. He gave an assurance that he will cross-examine at certain time after lunch and once again moved an adjournment application. 19. In the circumstances, I am of the considered view that this is a case where the learned Counsel is physically present and he was instructed. It is evident that without instruction he would not have given assurance to cross-examine the witnesses at a certain given time. In the circumstances, it can safely be concluded that parties were present and the Court considered to be appropriate to proceed under Order 17 Rule 3, C.P.C. The Court committed no error whatsoever. I am not in agreement with the submission made by Mr. Sumit Daga, learned Counsel for the appellant on the substantial question of law No. 3 raised in the instant second appeal. 20. Lastly, objection that the judgment was not delivered on the same day is also unsustainable. I am not in agreement with the submission made by Mr. Sumit Daga, learned Counsel for the appellant on the substantial question of law No. 3 raised in the instant second appeal. 20. Lastly, objection that the judgment was not delivered on the same day is also unsustainable. The Apex Court in the case of Thakur Ji Ram Janki Ji and another v. Shankar Dayal, (2006) 9 SCC 187 , held that the order under Order 17 Rule 3, C.P.C. does not cast a mandate on the trial Court to deliver the judgment on the same day but merely empowers it to exercise its discretion in the manner provided. The Apex Court had set aside the judgment of the High Court and held that interference in the second appeal by the High Court only because the judgment was not delivered on the same day, on which the trial Court proceeded under Order 17 Rule 3, C.P.C. In view of this decision, last argument of the Counsel for the appellant is also not acceptable. 21. For the reasons given hereinabove, it is apparent that none of substantial question of law raised on behalf of the appellant has any force. The appellant cannot be given any benefit on the basis of ex parte decree passed against a dead person especially when the suit itself was instituted after three years of death of the defendant. The decree dated 18.4.1992 is a nullity and no error was committed by the trial Court when it proceeded with the trial under Order 17 Rule 3, C.P.C. I am not inclined to interfere in exercise of jurisdiction under Section 100, C.P.C. and also for the reasons that assuming the trial Court committed procedural error by proceeding under Order 17 Rule 3, C.P.C. but this alone is not sufficient and would not constitute an error of law much less a substantial error of law. 22. The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon’ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100, C.P.C. For ready reference, extract of paragraph No. 7 of the case of Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134 , is quoted below : “7. .....We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi held : (AIR p. 1205 para 3). It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact.” 23. Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others, JT 2004 (5) SC 54; Rajeshwari v. Puran Indoria, (2005) 7 SCC 60 ; Gurdev Kaur and others v. Kaki and others, 2006 All. C.J. 1481 (SC) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722 . 24. The Apex Court in the recent case of Santosh Hazari v. Purshottam Tiwari, (2001) 3 SCC 179 , ruled that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govinda Raju v. Mariamman, (2005) 2 SCC 500 . 25. It will, therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govinda Raju v. Mariamman, (2005) 2 SCC 500 . 25. The judgments under challenge cannot be interfered in exercise of jurisdiction under Section 100, C.P.C. The instant second appeal lacks merit and is, accordingly, dismissed. ————