- (1.) THIS is an appeal filed by the appellant under Section 183 (3) of the Calcutta Municipal Act, 1951 against the decision of Shri A. K. Dasgupta Judge Small Causes Court, Sealdah passed in municipal Appeal No. 379 of 1975 on 30th [november, 1977.
(2.) A question has arisen whether the provision of Order 41 Rule 11 of the code of Civil Procedure is applicable in respect of such Municipal Appeal. Order 41 Rule 11 of the Code of Civil Procedure provides:- " (1) The Appellate Court, after sending for the record if ft thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal or an appeal under this rule shall be notified to the court from whose decree the appeal is preferred. (4) When an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (l), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the Judgment".
(3.) RULE 12 of Order 41 provides that unless the Appellate Court dismisses the appeal under Rule 11 it shall fix a day for hearing of the appeal and Rule 13 of the said order provides that where the appeal has not been dismissed under Rule 11 the Appellate Court shall send notice or appeal to the Court for which the decree in appeal is preferred.;