' This second appeal is directed against the ex parte order passed by the District Judge, Karachi, on 31-7-1971 and the order passed on 4-5-1972.
2. The respondent had filed a suit No,370 of 1964 for declaration and injunction claiming to be the lessee of the three plots in question. The said suit was decreed on merits on 9-9-1967 after contest between the parties. The appellant filed Civil Appeal No,206 of 1977 before the District Judge, Karachi. The same was put up for hearing on 23-8-1968, but was adjourned on a number of hearings on the request of the appellant's counsel. It was fixed for final hearing on 8-7-1971. But the appellant's counsel again prayed for adjournment and it was then adjourned to 31-7-1971 with a clear understanding that no more time would be given in future. On 31-7-1971 appellants' counsel again moved an application for adjournment on the ground that Mr.Agha Masud Mirza was not feeling well. The adjournment application was rejected on the ground that it was a mere contrivance to get adjournment and to protract proceedings. Thereafter it appears that the matter was called again for hearing but the appellant's counsel was absent and therefore, it was dismissed for non-prosecution on the same date viz. 31-7-1971. The appellant moved an application for restoration of the appeal but the same was dismissed after hearing of the counsel on 4-5-1972 and it appears that the office of the District Judge prepared a decree on the basis of the order, dated 4-5-1972 which was merely an order refusing to restore the appeal. The appellant filed miscellaneous appeal No,447 of 1972 in the High Court against the order refusing to restore the appellant's appeal. The said appeal was dismissed by one of the Hon'ble Judges of this Court on 16-11-1976 on merits. But it was also observed in the said appeal that a second appeal is pending against the said decree.
3. This second appeal had been filed meanwhile on 23-9-1a72 against the ex parte decree passed by the District Judge and also the judgment and decree, dated 9-5-1972.
4. Syed Mohammad Sadiq, learned counsel for the respondent, has taken a preliminary objection that second appeal is not competent against an ex parte judgment because an order passed in default does not have the force of a decree under section 2(2) of C.P.C. which makes it clear that an order of dismissal for default is not a decree. Counsel has referred to Order XLIII, rule 1(t) of C.P.C. where appeal is provided against an order under Order XLI, rule 19 refusing to readmit an appeal and under Order XLI, rule 21, C.P.C. against an order to rehear an appeal. He points out that under section 100, C.P.C. an appeal can lie only from a decree passed in appeal. Ile relied upon AIR 1962, Punjab 82(84) where it was held that a dismissal for default could not come within the definition of the word decree as defined in section 2(2) of C.P.C. and as such no appeal shall be competent therefrom. On my query that the second appeal could be converted into a civil revision under section 115 of C.P.C. the learned counsel referred to PLD 1964 Kar. 149 where it was held by a Full Bench that a High Court cannot exercise power under section 115, C.P.C. if that same matter could have been brought before it by way of appeal. Counsel submitted that the High Court having already exercised its powers in appeal against the order, dated 31-7-1971 on 16-11-1976 therefore, there would be no justification for this Court now to exercise the revisional powers and it may mean a conflict in judgment.
5. Mr. Muslim Naqvi, on the other hand referred to AIR 1937 All. 284 (286) where it was held that where application for postponement of the appeal was rejected and the appeal was dismissed, for want of prosecution, it was not a case of dismissal for default and a second appeal against that judgment was competent and that an application for restoration of appeal against that judgment was not competent. He therefore, argued that the present appeal was covered by that judgment. I do not agree with this submission of the learned counsel because I find that in the cited case the dismissal of the application for adjournment and the dismissal of the appeal was simultaneous without any lapse of time and in those circumstances the learned Judge had taken the view that it was not the case of dismissal for default simplicity.
6. It would be useful to reproduce a very relevant observation of the learned Judge in that cited case:- "There is nothing in the judgment of the lower appellate Court to suggest that on the application for adjournment being dis missed, he retired and there was no appearance thereafter. The learned Judge clearly was of opinion that the refusal or inability of the pleader to argue the appeal amounted to "want of prose cution". He did not treat the case as if no appearance at all had been put in by or on behalf of the appellant".
' Therefore, if there is some lapse of time between two orders then the situation would be quite different and absence of counsel at the time of passing of orders of dismissal of appeal would be regarded by the Allahabad H.C. itself as amounting to dismissal of appeal in default.
7. In the present appeal before me I find that there are two distinct and separate orders passed by the learned District Judge on 31-7-1971. One order is rejecting the application for adjournment. The other shows that the matter was again called but the appellant's counsel was absent and, therefore, the appeal was dismissed for non-prosecution. In these circumstances there was a time lag between the two orders and hence the second order has to be regarded as an order passed in default under Order XLI, rule 17, C.P.C. and this was therefore not an order which could be made the basis of a decree and therefore, no decree was prepared against the said order. Even the appellant preferred a miscellaneous appeal in the High Court against the said order but the same was dismissed on merits. Therefore, it is evident that the order of dismissal of appeal for non- prosecution was a distinct order from the one which was passed rejecting the application for adjournment and the second order being an order passed dismissing the appeal in default for non-prosecution on the same did not have the force of a decree and the second appeal against the same is not competent.
8. I had thought of Converting this second appeal into a revision but I find that the appellant has been negligent in the prosecution of its appeal before the District Judge and it had taken a number of adjournments and yet had not perused the same and finally time had been taken from the District Judge on 8-7-1971 for arguments of the appeal on 31-7-1971 with an undertaking that no further time would be sought but still even on 31-7-1971 the appeal was not argued and adjournment was sought and not only that adjournment was sought but the gentleman who had sought the adjournment had not even deemed it fit to be present at the time when this application was considered and that the appellant and their counsel were again absent when the appeal was called for hearing. On the top of it the case of the appellant has been argued on merits before the High Court in a miscellaneous appeal and it has not received any favorable reception at the hands of the High Court and the appeal has been ultimately dismissed and in these circumstances conversion of this second appeal into a revision would neither be fair nor even proper and it would amount to setting at naught, indirectly the order which has been passed by the High Court on 16- 11-1976.
9.I may also observe that this second appeal having been filed on 23-9-1972 it was obviously time- barred against the order passed on 31-7-1971 even if the same could be considered to be having the force of the decree.
' This second appeal is, therefore, dismissed.