JUDGMENT : R.B. DASH, J.–This is an appeal against the Judgment & decree dated 20.2.1999 & 1.3.1999 passed by the learned IInd Additional Civil Judge (Senior Division), Cuttack in T.S. No.527 of 1992. 2. Respondent No.1 is the Plaintiff in the suit. The original Appellant, namely, Kunja Parida, who is the brother of Plaintiff-Respondent No.1 is the Defendant. No.1 & Respondent Nos. 2 to 6 are the Defendant Nos. 2 to 6 in the suit. Respondent No.1 filed the suit for setting aside Registered Sale Deeds bearing Nos. 4660 & 4661 dated 8.11.1989 in favour of Respondent Nos. 2 to 4 alleging that the latters, in collusion with the deceased-Appellant, had managed to obtain the former's signatures on the Sale Deeds in respect of plaint schedule 'B' property by application of fraud & misrepresentation. Schedule 'A' property is the entire suit property consisting of one plot measuring Ac.0.385 decimals in area. Schedule 'B' property is a part of Schedule 'A' property in respect of which the impugned sale deeds have been executed. Claiming schedule 'A' property to be the joint family homestead of herself & the deceased Appellant, each having 8 annas share therein, Respondent No.1 made an additional prayer for partition of the property. Despite of due service of summons, the deceased Appellant, so also Respondent Nos. 5 & 6, did not appear before the learned Court below to take part in the proceeding of the suit. Respondent Nos. 2, 3 & 4 appeared & filed a joint written statement denying the alleged fraud & misrepresentation & claiming that the Plaintiff-Respondent No.1 & the deceased Appellant had jointly executed the two Registered Sale Deeds on their own free will & that the same were acted upon. 3. During pendency of the suit, the Plaintiff-Respondent No.1 on one hand, & Respondent Nos. 2 to 4 on the other, entered into a compromise. Their compromise petition was taken up by the Learned Trial Court at the time of final disposal of the suit & so far schedule 'B' property is concerned, dismissed the suit inasmuch as it is acknowledged by the Plaintiff-Respondent No.1 in the compromise petition that she had executed the sale deeds on her own free will. In respect of the remaining area of schedule 'A' property, i.e., Ac. In respect of the remaining area of schedule 'A' property, i.e., Ac. 0.225 decimals, the Trial Court decreed the suit preliminarily with a direction to divide the same equally between R. 1 & the original Appellant. 4. Since the suit was decreed ex parte against the original Appellant, he filed a petition under Order 9 Rule 13 C.P.C. which was registered as CMAPL No.89 of 2003 to set aside the ex parte decree which was heard & dismissed by the Learned Trial Court. Hence the present appeal under Order 41 Rule 1 read with Section 96 of the C.PC. 5. The sole ground taken in the memo of appeal is that the Learned Trial Court deviated from the course of a fair trial inasmuch as the Appellant was not allowed to contest the case for no fault of his own but for the fault of his Counsel. It is specifically pleaded that the Appellant, having been noticed in the suit had approached Sri K.K. Swain, Advocate & appointed him as his lawyer paying fees to him so that the lawyer would appear in the suit on his behalf. But, ultimately, the lawyer played treachery & did not appear to fight out the suit as a result of which the Appellant was set ex parte & the suit was decreed ex parte. It is the further case of the Appellant that at the relevant period he was suffering from multiple diseases like T.B., paralysis, bronchitis etc. & was totally bedridden. 6. Thus, it is found that the Appellant does not challenge the ex parte decree on its merit, but takes a ground to justify his non-participation in the proceeding of the suit contending that he was prevented by sufficient cause from appearing before the Learned Trial Court when the suit was taken up for hearing. In the memo of appeal he has sought for the relief of setting aside the ex parte decree & remanding the matter for re-trial. Learned Counsel for the Appellant submits that a party should not suffer for misdemeanor or inaction of his Counsel. He reiterates that the Appellant had engaged Sri KK Swain, as his Advocate paying him suitable fees but the Learned Advocate did not appear in the suit which fact the Appellant could not know as he was completely bedridden on account of multiple diseases that he was suffering from. He reiterates that the Appellant had engaged Sri KK Swain, as his Advocate paying him suitable fees but the Learned Advocate did not appear in the suit which fact the Appellant could not know as he was completely bedridden on account of multiple diseases that he was suffering from. Save & except the bald assertion that the Appellant had engaged one Advocate who did not appear before the Learned Trial Court, there is no material in support of this contention. It is not asserted that a duly executed Vakalatnama engaging Sri K.K. Swain as Advocate was in existence & that the same was presented before the Learned Trial Court. Therefore, it is not possible to accept the Appellant's plea that an Advocate engaged by the Appellant was negligent in conducting the Appellant's case before the Learned Trial Court for which he was set ex parte. There is also no material showing that during the relevant period the Appellant was completely bedridden, Therefore, on the sole ground that the Appellant should not be allowed to suffer on account of misdemeanor of his Counsel, the impugned Judgment & decree cannot be set aside & the matter cannot be remanded for are trial. 7. It is the case of the Appellant that he had made an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree which was registered as CMAPL No.89 of 2003 but the same was dismissed by the Learned lower Court. The case record of the CMAPL is not available with the L.C.R. It is quite probable that the Appellant had taken the ground of his Advocate's misdemeanor along with the plea of his illness to justify that he had sufficient cause for having not appeared before the Trial Court when the suit was called on for hearing. The case record of the CMAPL is not available with the L.C.R. It is quite probable that the Appellant had taken the ground of his Advocate's misdemeanor along with the plea of his illness to justify that he had sufficient cause for having not appeared before the Trial Court when the suit was called on for hearing. If that be so, then the Appellant cannot re-agitate the same ground here in an appeal under Order 41, Rule 1 read with Section 96 of C.P.C. This view is supported by the decision of a Bench of the Madras High Court in Asethu v. Kesavayya (AIR 1920 Mad 962) referred to in Munassar Bin v. Fatima Begum, reported in AIR 1975 Andhra Pradesh 366 wherein it has been held that where an application to set aside the ex parte decree has been rejected under Order 9, Rule 13 it is not open to the Defendant to have the question re-agitated in the appeal from the decree itself & such a right is not given by Section 105 of the C.P.C. The Bombay High Court in M/s. Mangjlal Rungta, Calcutta v. Manganese Ore (India) Ltd., Nagpur, reported in AIR 1987 Bombay 87 has also given concurrence to the same view. 8. Learned Counsel for the Appellant has relied on two decisions of Hon'ble Supreme Court (1) Rafiq & anr v. Munshilal & another (AIR 1981 Supreme Court 1400) & (2) Goswami Krishna Murarilal Sharma v. Dhan Prakash & ors (1981) 4 Supreme Court Cases 574) in support of his contention that for the fault of his Advocate, the Appellant should not be allowed to suffer. In both the cases it was not in dispute that the parties concerned had engaged their respective Counsel. But in the case at hand, the Appellant has not shown that one Sri K.K. Swain, Advocate was engaged as his lawyer to participate in the suit on behalf of the Appellant. While the very engagement of the lawyer is not on record, the question of lawyer's fault does not arise. 9. In the result, the First Appeal being devoid of any merit is dismissed with cost. Appeal dismissed.