f > i.l7 % 14.03.2011 Present: Mr. R.S.Tomar, Advocate for the appellant. +CM No.5174/2011(exemption) in RFA No.150/2011 Exemption is allowed subject to just exceptions. CM stands disposed of. CM No.5173/2011 Delay in filing the appeal is condoned because the appellant was pursuing an alternative remedy before the Trial Court for setting aside the ex-parte proceedings. CM stands disposed of. + RFA No.150/2011 The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the orders and consequent decree dated 22.7.2010 whereby the suit of the plaintiff ^ was dismissed for default, although the defence of the defendants had already been struck off on 18.9.2009. It is contended by the learned counsel for the appellant that the mistake happened on account of wrong noting of the date and immediately after appearing on the wrong noted date, an application was moved for setting aside the ex parte proceedings and the dismissal in default under Order 17 Rule 2 RFA 150/2011 ^ ^ Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Si f CPC, however, the said application was also dismissed as withdrawn because the appellant was advised that the application is not maintainable. Though, in my opinion, the application was in fact maintainable because on non-appearance of a person, a suit is always dismissed in default under Order 17 Rule 2 CPC, in any case, the appellant has made good grounds for non-appearance on 22.7.2010 and for allowing the appeal. The order dated 22.7.2010 dismissing the suit in default is therefore set aside. No notice of this appeal is required to be sent to the respondent as the defence of the defendents stands struck off in the trial court. The appeal is allowed by remanding the case back to the Trial Court for being decided from the stage as it was on 22.7.2010. The appellant will however serve the respondents in the suit in the Trial Court again afresh . The appeal is, therefore, disposed of as allowed in terms of the above. Appellant to appear before the Trial Court on 20.4.2011 March 14, 2011 VALMIKI J. MEHTA, J. ak RFA 150/2011 Paff® 2 of 2