SAMIR KR. MOOKHERJEE, J. ( 1 ) THIS is an application on behalf of the respondent in an appeal which had been disposed of by a learned Judge of this Court on 8th January, 1979 by a judgment in the absence of the respondent. It appears that the present application for recalling of the said judgment and for restoration of the appeal to its file for rehearing in accordance with law had been filed on 26th October, 1987. The successful appellant in the said aforesaid appeal having been served has appeared through his learned lawyer and has also affirmed an affidavit-in-opposition. On behalf of the respondent, apart from the affidavit-in-reply, Supplementary affidavit as also Supplementary Affidavit-in-Reply along with an application under Section 5 of the Limitation Act have been filed. ( 2 ) APPEARING in support of the application, Mr. Ganguly has specifically assumed the entire responsibility for his nonappearance on the date the Second Appeal stood disposed of ex parte as also the liability to have any lost which this court may impose, as a condition. On the basis of the averments made in the application for restoration, it appears that for sometime preceding the date of disposal of the appeal Mr. Ganguly was himself suffered, heart attack and was hospitalized, and was having an indifferent health compelling him to rely upon his friends and clerks to keep watch over his cases appearing in the lists of this Hon'ble Court and his attendance in Court was irregular. Mr. Ganguly has further stressed that the client after engaging him remained confident and fully relied on him for the purpose of looking after his case pending in the said Second Appeal. It further appears that Mr. Ganguly had a wrong impression about the residence of his client which though in Calcutta was taken by him to be in Bombay It appears also from the averments made by the respondent petitioner that continuous and constant touches between client and the learned lawyer in the particular case had been lacking and as directed by Mr. Ganguly the Respondent waited for communication from his learned advocate, who informed that the disposal of appeal might take a long time. In such circumstance the appeal came up for hearing on the date as mentioned and was disposed of by being allowed in favour of the appellant and in the absence of Mr. Ganguly. Ganguly the Respondent waited for communication from his learned advocate, who informed that the disposal of appeal might take a long time. In such circumstance the appeal came up for hearing on the date as mentioned and was disposed of by being allowed in favour of the appellant and in the absence of Mr. Ganguly. No doubt, from the averments made on behalf of the appellant/opposite party the uncontroverted fact emerges that after the disposal of the appeal, on or about 15th March, 1980, Mr. Ganguly was informed by Mr. Dasgupta, who was acting as the learned advocate for the appellant, about such disposal of the appeal on 8th January, 1979 but possibly that would not be of much relevance as on that basis steps were taken by Mr. Ganguly to ascertain the position of the appeal and on or about 5th May, 1980 he obtained the information, which ultimately proved to be incorrect from the office of this Hon'ble Court that the appeal was pending as per register of this court. It is only when the respondent retired and was informed by the appellant about a decree having been passed in favour of the latter that the respondent came in touch with Mr. Ganguly and only thereafter on inspection of records on 24th June, 1987 the fact of disposal of the appeal in the absence of Mr. Ganguly had been discovered. On the averments made on behalf of the applicant/respondent a certified copy of the judgment passed by the learned single Judge of this Court was applied for and was awaited but since there was no prospect of getting the judgment before the ensuing long vacation he was advised to prefer instant application for restoration of the appeal. ( 3 ) MR. Dasgupta, appearing on behalf of the successful appellant, has very strenuously contended that this is a case where the restoration ought not to be allowed as the time gap in between the disposal of the appeal on 8th January, 1979 and presentation of the instant application for restoration on 26th October, 1987 is considerable enough to disentitle the respondents to such restoration which if allowed would cause immense prejudice to the appellant, who was in enjoyment of the ex parte decree for such along period. Mr. Mr. Dasgupta has, secondly, contended that even accepting the correctness of the statements made on behalf of the respondent/applicant that due to no fault on his part but due to lack of diligence on the part of his learned advocate the appeal was disposed of ex parte; the application deserves dismissal in limine in view of the specific provisions of Article 123 of the Limitation Act as also Order 41 Rule 22 of the Code of Civil Procedure. Mr. Dasgupta has further emphasised the failure of the respondent to take recourse to alternative procedure, namely, by moving the higher form against the ex parte judgment and decree. According to Mr. Dasgupta the first part of Article 123 of the Limitation Act would apply in the instant case as there is no dispute that notice of the appeal had- been served on the respondents obviating the application of the second part of the said Article where knowledge of the applicant could have come to his rescue. Instead of 30 days a period of 7 years has expired. ( 4 ) A number of decisions have been cited on behalf of both the contesting parties in support of their respective contentions. ( 5 ) AFTER considering the rival contentions, the decisions referred to by the learned advocate representing the contesting parties and the materials relied on by them, I feel that in the instant case the entire responsibility for disposal of the appeal ex parte is attributable to Mr. Ganguly, the learned advocate for the respondent and the respondent does not owe any responsibility whatsoever for the same. He was justified in reposing confidence in his lawyer. That being the case it is to be seen under what circumstances such default on the part of Mr. Ganguly occurred. The ground of Mr. Ganguly's illness and of his indifferent health pleaded by the respondent applicant has not been effectively controverted as to persuade this Court accept such illness and indifferent health of Mr. Ganguly as factually incorrect. The other relevant contention of Mr. Dasgupta about the application for restoration having become barred in view of provisions of Article 123 of the Limitation Act, therefore, falls for consideration in the background of the aforesaid factual position. Mr. Ganguly as factually incorrect. The other relevant contention of Mr. Dasgupta about the application for restoration having become barred in view of provisions of Article 123 of the Limitation Act, therefore, falls for consideration in the background of the aforesaid factual position. Mr. Dasgupta is right in arguing that in view of the specific provisions of Order 41 Rule 22, the applicant is not entitled to take recourse to Section 151 of the Code of Civil Procedure and apparently the prayer for restoration has become barred by limitation. I have already indicated that there is an application for condonation of delay under Section 5 of the Limitation Act and on the basis of principles laid down by different decisions of the highest judiciary of the country the Court should approach the prayer for condonation not with a prefixed purpose of refusing the condonation but liberally bearing in mind that a party does not gain by allowing his proceedings to lapse by Limitation. Again in considering the prayer for condonation it is not necessary as sought to be argued by Mr. Dasgupta. that everyday's delay has to be explained but the Court has to look to the substance of the explanation and must be pragmatic in approach. It must not be forgotten that for a lawyer fault, no litigant should suffer for having reposed absolute reliance in his lawyer. These principles are very firmly established highest judicial authority. The cases cited by Mr. Das Gupta are distinguishable on facts and do not alter the legal position as outlined above. In the instant case, I find that on 5th May, 1980 Mr. Ganguly obtained the information of the pendency of the appeal which though contrary to the facts, can well be basis for his complecence based on his confidence about the correctness of such official information. The date of knowledge therefore, about the disposal of the appeal can at the earliest be 24th June, 1987 when on inspection, the said fact was discovered and though the application for restoration was filed on 26th October, 1987 the appellant could not have been blamed for having waited to get the certified copy of the ex parte judgment before the instant application was filed. The delay in filing such application, therefore, deserves condonation. The delay in filing such application, therefore, deserves condonation. I may record that I do not feel fettered in arriving at the aforesaid finding and in entertaining the application by the technical point raised by Mr. Dasgupta about the nonavailability of benefit of provision of Section 151 of the Code of Civil Procedure as in my view the Court has a power to treat this application for restoration as one under Order 41 Rule 22 of the Code of Civil Procedure, since the necessary elements thereof are present nor does the magnitude of the delay operate as an impediment. ( 6 ) IN the result, the application preferred by the respondent, petitioner stands allowed, after condonation of delay in filing the same. The impugned judgment and decree are recalled and the S. A. 761 of 1970 is restored to file for being heard according to law. ( 7 ) IN the special circumstances of the case, I direct that each party will bear his own cost. Application allowed. .