JUDGMENT : Ashok Kumar Dasadhikari, J. Respondents/opposite parties obtained a decree for eviction against the plaintiffs/petitioners. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Judge an appeal being Appeal No.7 of 2002 was filed. In that appeal the appellants/petitioners moved an application under Section 151 of the Code of Civil Procedure for amendment of challan by which the appellants/ petitioners deposited rent in the learned Court below. That application was rejected. The appellants/petitioners moved before this Hon'ble Court and this Hon'ble Court set aside the order of the learned Court below and the learned Court below was directed to proceed and to dispose of the original case being Appeal No.7 of 2002 as expeditiously as possible preferably within a period of six months, but not later than 8 months from the date of receipt of the order, without granting unnecessary adjournment to any of the parties even on consent. Lower Court records was returned to the learned First Appellate Court with special messenger cost at the cost of the petitioner. That is how the revisional application was disposed of. However, after the order was passed the First Appellate Court started hearing of the appeal. Thereafter First Appellate Court by its order dated 14th November, 2008 disposed of the petition filed under Order 19, Rule 1 and Order 41, Rule 47 of the Code of Civil Procedure directing the appellant to prove certified copy of the deeds by her oral evidence and about the subsequent facts. Appeal was fixed on 17th November, 2008 for examination of D.W.1 and for cross- examination. 2. On 17th November, 2008 appellant filed certified copy and a copy of notice and the learned Court below was pleased to fix the appeal on 25th November, 2008 for further evidence of D.W.1 and cross-examination. However, thereafter different dates were fixed. From 2nd March, 2009 to 30th January, 2010 there was no Judge in the First Appellate Court. Thereafter again the appeal was adjourned. Plaintiff/opposite party filed petition under Order 6, Rule 17 of the Code of Civil Procedure for amendment for the plaint and a petition for shifting the case. Appellant filed written objection against the petition. However, the appeal was fixed on 8th June, 2011. Thereafter again the appeal was adjourned. Plaintiff/opposite party filed petition under Order 6, Rule 17 of the Code of Civil Procedure for amendment for the plaint and a petition for shifting the case. Appellant filed written objection against the petition. However, the appeal was fixed on 8th June, 2011. On that date learned lawyer for the appellant/petitioner filed an application with a prayer for adjournment since learned Senior Advocate of the appellant/petitioner undergone medical treatment and test and he could not come to court on that date. It was also stated in the petition for adjournment that due to inadvertence and haste the case is fixed today for hearing of appeal without disposing of the petitioner's application under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure and without fixing the case for further examination of the appellant. However, prayer was made for adjournment by the appellant. This application for adjournment was disposed of by the First Appellate Court recording that on 8th June, 2011 hearing of appeal was fixed as last chance but the appellant filed petition for time on the ground stating that learned Senior Advocate is ill and he could not appear for hearing. Later on plaintiff/respondent filed petition for amendment of plaint. It was recorded in the order that it was found that Hon'ble High Court in C.O.3052 of 2004 passed an order to dispose of the appeal within six months but not later than eight months from the date of receipt of order without granting unnecessary adjournment to any of the parties even on consent and the order of the Hon'ble High Court was communicated by the Assistant Registrar, High Court, Appellate Side, Calcutta and order was received on 11th June, 2008 and the First Appellate Court was not available since learned Judge was not there. It was recorded in the order that on the previous day, the order of the Hon'ble High Court was not brought to the notice of the court, this is why the order was not known to the court. It was recorded in the order that on the previous day, the order of the Hon'ble High Court was not brought to the notice of the court, this is why the order was not known to the court. On scrutiny of the record it was found that in view of circumstances the prayer for time was rejected and the petition for the proposed amendment filed by the plaintiff/respondent cannot be entertained as because there was specific order from Hon'ble High Court to dispose of the appeal within six months from the date of receipt of the order and the prayer for adjournment was rejected and the appeal was fixed for hearing at 1 p.m. At 1 p.m. learned Advocate for the appellant appeared and submitted that by order dated 14th November, 2008 the Court allowed the petition under Order 19, Rule 1 and Order 41, Rule 47 and the Court fixed the suit for further evidence of D.W. By order No.63 the petition under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure the petition was kept with the record. Thereafter the case was transferred to a different court. Learned Lawyer submitted that that petition was not disposed of. The Court recorded why the learned Advocate for the appellant did not point out the matter when specific direction for disposal within stipulated period of time was given in the year 2008. Accordingly, submissions made by the learned Lawyer for the appellant was rejected and it was recorded that in case further adjournment is granted this would be a gross violation of the order of the Hon'ble High Court. However, the learned Lawyer for the appellant was not willing to argue the case. Since appeal was not argued, appeal was dismissed. Against the order impugned passed by the learned Judge on 8th June, 2011 this revisional application was filed. 3. Mr. Roy, learned Counsel appearing for the respondents/opposite parties submits that the order passed by the learned First Appellate Court is dismissal of the appeal. He submits that revisional application is not maintainable since appeal was dismissed. 4. Mr. Roy referred different provisions under Order 41 and also cited a decision reported in A.I.R. 2005 S.C. 226 (Shyam Sundar Sarma v. Pannalal Jaiswal and others). 5. Mr. He submits that revisional application is not maintainable since appeal was dismissed. 4. Mr. Roy referred different provisions under Order 41 and also cited a decision reported in A.I.R. 2005 S.C. 226 (Shyam Sundar Sarma v. Pannalal Jaiswal and others). 5. Mr. Roy submits that in the aforesaid case an appeal was filed with an application for condoning delay and the Hon'ble apex Court held dismissal of application for condonation of delay and consequential dismissal of the appeal is nevertheless a decision in appeal and therefore, for all purposes an order dismissing the appeal was a decree that could be subject by a second appeal. 6. Mr. Roy referred paragraph 10 of the judgment which reads as follows :- "10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew ( 1987 (2) KLT 848 ). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and in an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A Order 41 introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal." 7. Mr. Roy submits that the aforementioned decision makes it clear that the dismissal of an appeal for all practical purposes was a decree and therefore, this revisional application could not be entertained. Petitioners cannot maintain this revisional application. 8. Mr. Ghoshal, learned Counsel appearing for the appellant/petitioner submits that the order of dismissal is in effect of dismissal for default since no argument was advanced by the learned Advocate for the appellant. 9. Mr. Petitioners cannot maintain this revisional application. 8. Mr. Ghoshal, learned Counsel appearing for the appellant/petitioner submits that the order of dismissal is in effect of dismissal for default since no argument was advanced by the learned Advocate for the appellant. 9. Mr. Ghoshal then submits that there were two applications pending before the learned Court below, one is substitution application filed by the appellant and the other one is application filed by the plaintiff. 10. Mr. Ghoshal submits under such circumstances this order of dismissal is in effect non-disposal of the appeal. 11. Mr. Ghoshal submits that the learned Court below ought to have considered that unless those applications are disposed of there is no scope of argument of the appeal. He further submits that since this is not disposal of the appeal on merit or dismissal on merit revisional application will lie. 12. Mr. Ghoshal cited three decisions in support of his contention. One is reported in 1979(1) C.L.J. 469 (Lachman Singh v. Hashirani Singh). Citing this decision Mr. Ghoshal submits that there was a default on the part of the plaintiff to deposit commissioner's fee. Plaintiff was given several chances to deposit fee but he failed to comply. Ultimately the Court dismissed the plaint for failure of deposit of such fee. Thereafter application under Section 151 of the Code of Civil Procedure was moved for setting aside of the order for dismissal and restoration. Learned Trial Court rejected application and the plaintiff came up in revision before this Court. This Hon'ble Court allowed the revision under Section 151 of the Code of Civil Procedure. He submits provision under Section 151 of the Code of Civil Procedure is an inherent power and this Court should exercise this power since dismissal is not on merit. 13. Mr. Ghoshal then cited another judgment reported in (2010) 12 S.C.C. 164 (Bhanwarilal Dugar and ors. v. Bridhichand Pannalal and ors.). There the Hon'ble Apex Court was of the view that the Appellate Court directed eviction by merely copying findings of trial court in verbatim and on revision High Court reversed the concurrent findings of the facts dismissing suit for eviction substituting its own findings on ground that appellate court did not consider evidence properly. The Hon'ble Apex Court held that High Court was right in entertaining revisional application. 14. Mr. The Hon'ble Apex Court held that High Court was right in entertaining revisional application. 14. Mr. Ghoshal then cited another judgment reported in 2015(2) C.H.N. (SC) 60 (Shasidhar v. Ashwini Uma Mathad) wherein the Hon'ble High Court held that the learned First Appellate Court must decide the issue on reason. 15. Mr. Ghoshal submits since in the order of dismissal there is no discussion of merits on any of the issues, the revisional application is maintainable. 16. Considered the submissions made by the learned Counsel appearing for the parties. It is undisputed that the appellant/petitioner earlier moved on revisional application in the revisional jurisdiction and this Hon'ble Court fixed a particular time for disposal. The learned First Appellate Court was obliged to follow the order passed by this Hon'ble Court. However, the appeal could not be disposed of within the stipulated time since there was no Judge available in the Appellate Court for a considerable period of time. Ultimately, the matter was taken up for hearing and application under Order 41, Rule 47 of the Code of Civil Procedure was allowed, evidence was taken. Thereafter one application for amendment and other one for substitution were filed. However, at no point of time the appellant pointed out the order passed by the Hon'ble High Court fixing date for disposal of the appeal within a stipulated period of time. The appellant also did not move any application for extension of time. Order passed by this Hon'ble High Court is also binding upon the learned Court below. Several adjournments were granted. However, appellant did not take proper step. The learned First Appellate Court had no other alternative but to obey the Hon'ble Court's order instead of granting adjournments. Appellant/petitioners did not take appropriate step in appropriate time to get their application disposed of, even they were not ready to argue the case on the date fixed. Learned Judge coming to know about the Hon'ble High Court's order which is a mandatory direction, dismissed the appeal since time period fixed by this Hon'ble Court was over on that date. On that ground the order of dismissal was passed. It appears from the decision cited by Mr. Learned Judge coming to know about the Hon'ble High Court's order which is a mandatory direction, dismissed the appeal since time period fixed by this Hon'ble Court was over on that date. On that ground the order of dismissal was passed. It appears from the decision cited by Mr. Roy in case of (Shyam Sunder Sarma) (supra) the Hon'ble Apex Court held that dismissal of appeal on rejection to an application under Section 5 for condonation of delay is also a dismissal of appeal for the reason of delay in its presentation which is in effect and in substance and confirmation of the decree appealed against. Therefore, dismissal of appeal is in fact confirmation of decree. In that view of the matter, I am of the view that the proper remedy of the appellant/petitioner was in second appeal not in revision. So far the judgments cited by Mr. Ghoshal are concerned, those are on different sets of facts and moreover none of those cases, order of dismissal was passed after giving opportunity to the appellant for making argument and there was no such mandatory direction of the High Court to dispose of the appeal within six months but not later than eight months. 17. Accordingly, this revisional application is not maintainable. However, conversion of the revision petition in second appeal is permissible in view of the judgment of this Hon'ble Court and also of the Hon'ble Apex Court. 18. The appellant/petitioner is permitted to take appropriate step for conversion by filing a memorandum of appeal upon compliance of required formalities. In case all formalities are complied with within the period of three weeks from date, in that event appellant/petitioner would be permitted to proceed with the appeal before the appropriate forum. 19. Mr. Roy assures this Court that his client will not proceed with the execution case for four weeks. 20. Te petitioners are permitted to tag the certified copy of the memorandum of appeal and to put in requisite in that regard. 21. The revisional application is, thus, disposed of.