Judgment R.N.Sahay, J. 1. This is an application for review/rehearing of First Appeal No. 29 of 1973 which was allowed ex parte against the review petitioner. 2. First Appeal in question was listed for hearing on 16-12-1987 before B.N. Agrawal, J. The review petitioner was represented by Sri Rama Kant Verma, Sr. Advocate, who was assisted by Miss Ranjit Chatta. After the death of Sri Verma Sri Krishna Prakash Sinha, Sr. Adv. was engaged and the brief was handed over to him. On 22-4-1988 First Appeal was heard in part by B.N. Agrawal, J. The case was again listed on 5-5-1988 and His Lordship ordered that the case be listed before another Bench. 3. The case went out of list and was not listed for three years. During this period, Sri Nakulesh Surendra Shahi, husband of the original review petitioner tried to contract the junior Counsel Miss Ranjit Chatta and a learnt that the Counsel had gone out of Patna for some treatment. It is to be mentioned that the case was being looked after by Sri Sheo Nandan Prasad, Clerk of Late R.K. Verma. Sheo Nandan Prasad assured Mr. Shahi that he would look after the case. Whenever Mr. Shahi came to Patna, he enquired about the case from Sheo Nandan Prasad and he always replied that he would inform him when the case was likely to be taken up. First Appeal was heard by me on several dates and judgment was reserved. The judgment was delivered on 31st July, 1992 allowing the appeal. Mr. Shahi had no information about the case. He, however, learnt from his friends that something has happened in the case. He rushed to Patna on 3-8-1993 and tried to meet Sheo Nandan Prasad who was looking after his case. He came to know that Sheo Nandan Prasad has died a year before. Mr. Shahi then contacted Mr. Krishna Prakash Sinha, Sr. Counsel, who said that he did not know anything about the case. Mr. Shahi then contacted a lower with whom he was related and learnt that the appeal has been allowed ex parte. 4. The first ground for review is that my observation in the judgment that the petitioner, who was decree-holder had not deposited Rs. 47.000.00 as directed by the trial Court for the execution of decree, is erroneous observation because the petitioner had deposited Rs. 4. The first ground for review is that my observation in the judgment that the petitioner, who was decree-holder had not deposited Rs. 47.000.00 as directed by the trial Court for the execution of decree, is erroneous observation because the petitioner had deposited Rs. 47,000.00 in the Court below on 9-5-1974. It is submitted since the appeal had been preferred, there was no question of execution case being time-barred. It is submitted that Sri R.K. Verma was the Counsel for the petitioner. The petitioner was successful in the lower Court, She was always vigilant and had remained in contact with the Counsel. Sri R. K. Verma died on 18-11 -1987, then another Counsel Sri Krishna Prakash Sinha, Sr. Adv. was engaged which shows that the applicant was keen to contest the case and there was no negligence on her part. Shri Sheo Nandan Prasad, who was entrusted to look after the case suddenly died and the Junior Counsel also left practice and went out of Patna for long time. The petitioner became seriously ill and so her husband could not contact the Counsel. 5. Mr. S.K. Verma, learned Counsel for the petitioner has relied on several decisions of different High Courts in support of his contention since there was no negligence on the part of the petitioner and due to unforeseen circumstances, the petitioner could not appear in the appeal the respondent-appellant obtained ex parte decree against the petitioner which should be recalled. 6. Mr. Ram Janam Ojha, learned Counsel for the respondents vehemently argued that there is no ground for review/re-hearing of the case. It is contended that the review petitioner has not asserted that there was no laches on her part for her absence during hearing in First Appeal. It was further contended that this Court shall have to pronounce that the appeal was disposed of ex parte due to negligence of the Junior Counsel but before holding so notice should have been given to the Counsel who has now left practice. It was next contended that it was the duty of the party to keep track of the case and had the review petitioner been vigilant, the case could not have gone in default. 7. Mr. It was next contended that it was the duty of the party to keep track of the case and had the review petitioner been vigilant, the case could not have gone in default. 7. Mr. S.K. Verma, learned Counsel for the petitioner has cited a decision of Gauhati High Court in Prahlad Chandra Dey V/s. Assam Board of Revenue AIR 1987 Gau 9 , wherein a Division Bench of Gauhati High Court held that for default on the part of the lawyer if the appeal is dismissed, the appellant could not be penalised since the presence of appellant during hearing was not required. The Division Bench in para-6 of the report held as follows: It is thus seen that insofar as the petitioner-appellant was concerned he had done everything within his power to effectively participate in the proceedings and he was not required to attend at the hearings to inquire as to what happened in the appeal. He was not required to act as a watchdog of the Advocate to see that the latter appeared in the matter when it was hung up for hearing. Under these circumstances, when the appellant had done everything required to be done he should not have been penalised for the absence, or default, or carelessness or negligence of his lawyer. Even if the lawyer for the appellant absented himself deliberately or intentionally, we cannot penalise the litigant for the inaction, deliberate omission or misdemeanour of his agent. Under these circumstances, in the instant case, we must hold that for the fault of the lawyer, the penalty of dismissal of the appeal was imposed on the litigant. The same view has been taken by their Lordships in Goswami Krishna Murarilal Sharma -- (supra) and Smt Lachi Tewari, -- (supra)... 8. Similar view was taken by the Division Bench of Calcutta High Court in S.C. Sons (P) Ltd. V/s. Brahma Devi -- . The Division Bench held as follows: A party cannot be made to suffer for the fault on the part of his advocate if he himself is not at fault. The party having engaged an Advocate expects that his Advocate will take such step as necessary for the purpose of proper representation of the party concerned. If such advocate does not take necessary step resulting in the suit being dismissed for non-prosecution, the fault is of the Advocate and not the party. The party having engaged an Advocate expects that his Advocate will take such step as necessary for the purpose of proper representation of the party concerned. If such advocate does not take necessary step resulting in the suit being dismissed for non-prosecution, the fault is of the Advocate and not the party. In the present case the client i.e. the plaintiff could not expect that the Advocate on record in whose favour the change has been given, would not take necessary step to intimate the Board Maker or otherwise bring the same in the records of the case and accordingly the plaintiff Cannot be made to suffer for that. 9. In Rafiq V/s. Munshilal -- , Hon ble Supreme Court made following observations: ...Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the later appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimature on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into dispute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his Advocate, If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be resorted to its original number in the High Court and be disposed of according to law. 10. All these decisions fully support the case of the review petitioner that in the facts and circumstances of the case the ex parte decree passed against the review petitioner deserves to be recalled and the matter be reheard. The relevant facts of this case reveal that the petitioner was victim of circumstances. Senior Counsel was dead. The junior Counsel who was looking after the case left practice. It is true that the case was entrusted to the clerk of senior Counsel but it is apparent that there was some negligence on his part. It is, however, absolutely clear that the petitioner could not at all be blamed for the case going unrepresented at the time of hearing. 11. Mr. Ojha, learned Counsel for the respondents has relied on the case of Mohammad Khalil V/s. Kamaruddin -- . In this case, there were four appellants in Second Appeal filed before Allahabad High Court, One of the appellants had changed his advocate but he did not appear when the case was called out for hearing. Counsel for other appellants were, however, heard on merits and the appeal was dismissed. The Supreme Court observed that it was the duty of the Counsel to see that he is present when the case is called out for hearing, and it was not incumbent upon the Court to adjourn the case. The Supreme Court further held that the judgment of the High Court is correct on its merit. This case has not application to the facts of the present case. Admittedly, the Counsel was not present at Patna when the case was called out for hearing. 12. Mr. The Supreme Court further held that the judgment of the High Court is correct on its merit. This case has not application to the facts of the present case. Admittedly, the Counsel was not present at Patna when the case was called out for hearing. 12. Mr. Ojha has referred to Tarun Bharat Sangh V/s. Union of India 1994 Supp (2) SCC 342. This decision is also not applicable to the facts of the present case. Mr. Ojha has raised technical objection that the petition under Order XLVII, Rule-1, C.P.C. is not maintainable and as such the appeal cannot be re-heard. This contention is hardly applicable. Although application has been labelled under Order XLVII, Rule-1 C.P.C. there is provision for re-hearing. 13. In the facts and circumstances of the case, I am fully satisfied that there is sufficient ground for allowing this application and directing re-hearing of the appeal. The petitioner cannot be allowed to suffer on account of laches of the Counsel. This application is accordingly allowed, judgment in First Appeal No. 49 of 1973 is hereby recalled and it is ordered that the First Appeal No. 49 of 1973 shall be listed for hearing before an appropriate Bench. 14. Since I have already expressed my view that the First Appeal should be placed before another Bench, it would be appropriate to award cost against the petitioner in the facts and circumstances of the case. The petitioner is directed to pay cost of Rs. 2,500.00 to the respondents.