( 1 ) THESE are applications under Order 9 Rule 13 and Section 151 CPC filed by the defendants on 14. 8. 91 seeking setting aside of the ex parte decree dated 31. 5. 91 and stay of the execution thereof.

( 2 ) IT was a simple money suit. On 31. 5. 91, an ex parte decree in favour of the plaintiff and against the defendants for Rs. 4,69,217. 31 with interest at the rate of 12% p. a. from 30. 6. 86 till the date of filing of the suit i. e. 17. 9. 86 and future interest at the same rate has been passed. The suit is based on promissory notes after giving credits to the defendants to the extent to which the claim of the plaintiff was satisfied by the defendants prior to the filing of the suit.

( 3 ) THE sole ground urged in the application is that the defendants had entrusted the defence to Mr A. K. De, advocate, who neither appeared in the suit nor informed the defendants of the progress of the suit. It has been pleaded and forcefully contended by the counsel for the defendants that default on the part of the counsel cannot penalise the litigant and hence would amount to a sufficient cause for setting aside the ex parte decree.

( 4 ) ALL the relevant facts set out in the application have been controverted by the plaintiff. A perusal of the record of the proceedings shows that until 24/5/89 there were several counsel ( other than Mr A. K. De) appearing for the defendants. The defendants had filed an application under Section 34 of the Arbitration Act seeking stay of the suit and had not filed written statement. Then there were talks of compromise going on. The talks of compromise having failed, the Court directed the defendants on 18. 1. 1989 to file affidavit and documents in support of their application under Section 34 of the Arbitration Act. The defendants taded to comply with the order in spite of adjournments and costs having been imposed. On 8. 1. 1990. the application was rejected and the de tendants were.- directed to file written statement. This order was passed in the presence of Mr A. K: De Advocate who was appearing for the defendants since 18. 7. 89. Again,there were several adjournments. As the written statement was not filed the court was left with no other option but to proceed ex parte against the defendants as they were also not appearing either in person or through counsel. Ex parte evidence was adduced and then the suit was decreed.

( 5 ) A number of decisions have been cited by the counsel for the defendants in support of the contention that a litigant would not be made to suffer for the fault, if any, of the counsel and ordinarily a litigant would not be denied an opportunity of contesting a case on merits. It is not necessary to refer to and deal with the several decisions relied on by the learned counsel inasmuch as on the principle of law there cannot be any dispute or two opinions. However, the question to be examined is whether the responsibility of the defendants as a litigant conies to an end merely by engaging a counsel and should not a litigant show diligence on his part. It can be understood if a litigant has been diligent enough and acting bonafide then the fault of the counsel may not be labelled as a penalty against a litigant. In the case at hand, the application does not at all state how the defendants were acting diligently in at least contacting their counsel if not in attending the court ? The application under Section 34 of the Arbitration Act having been rejected what they had done to instruct their counsel for preparing a written statement ? The case having proceeded ex parte whether the defendants had contacted their counsel and ascertained the facts explaining default in appearance by the counsel before the Court ? Thus the facts as stated in the application fail to eliminate gross indifference and lack of diligence on the part of the defendants in discharging their duty as a litigant. If the defendants were negligent what the counsel could have done for defending the s