S. RAFAT ALAM AND SUDHIR AGARWAL, JJ.

Heard Sri Dharam Pal Singh, Advocate for the review applicant and Sri A. B. Saran, Senior Advocate for the respondents at great length. It is contended by Sri Singh that on 23rd March 2006 when this Court decided the appeal, one of the Counsel for the ap pellant, i. e. , review applicant had sent adjournment on the ground of illness and, therefore, this Court ought not to have heard the matter on merits and in stead, ought to have adjourned the case on the ground of illness. He further submitted that in case the Court was not inclined to adjourn the matter, treating the appellant as had not appeared, it was not open to the Court to decide the case on merit and instead the appeal ought to have been dismissed in default as provided in Order XLI, Rule 17 of the Civil Procedure Code, 1908 (in short c. P. C. ). He has also placed reliance on Apex Courts decision in Abdul Rahman and others v. Athifa Begum and others (1996) 6 SCC 62 and Rafiq and another v. Munshilal and another, AIR 1981 SC 1400.

2. From a perusal of record we find that the special appeal was initially filed by the review applicant (appellant) through Sri R. K. Awasthi, Advocate with the endorsement on vakalatnama and Sri Ravi Kiran Jain, Senior Advocate, will appear. The appeal was presented in the registry on 24. 10. 1997 and thereafter it was listed for admission on 26. 4. 2001 when nobody appeared for the appellant. The Court dismissed the appeal in default which order was recalled by the Court on 2. 4. 2002 on the application of the appellant. In the meantime, Sri G. N. Verma Advocate filed his vakalatnama dated 8. 2. 2001 and Sri Hari Manish Bahadur Sinha, Advocate filed his vakalat nama dated 11. 2. 2002 putting their appearance on behalf of the appellant. Thereafter another vakalatnama dated 19. 7. 2004 was filed by Sri Bhagwati Prasad Srivastava, Advocate on behalf of the appellant. Thoughno vakalat nama of Sri D. P. Singh, Advocate (Devendra Pratap Singh) is available on record, but the restoration application No. 50269 of 2001 was filed by him on 23. 5. 2001 and some listing applications were also filed by Sri D. P. Singh on be half of the appellant. The appeal thereafter came up for admission before a Division Bench on 7. 8. 2003 when the Court required learned Counsel for the ap pellant to show as to how the appeal was maintainable and thereupon the learned Counsel for the appellant sought adjournment so as to prepare the mat ter further on the question of maintainability of appeal. This is evident from the order dated 7. 8. 2003 which is quoted below :

"learned Counsel for the appellant has prayed for a short adjournment in order to enable him to study further the question relating to the main tainability of this appeal.

As prayed for, list in the next week. "

3. Thereafter it was listed before the Court from time to time but could not be heard. On 31. 1. 2006 Sri G. N. Verma, learned Counsel appearing on behalf of the appellant sought adjournment which was accepted and the case was di rected to be listed in the next cause list. On 23. 3. 2006 when the matter was listed before this Court, the names of S/sri R. K. Awasthi, G. N. Verma, D. P. Singh, H. M. B. Sinha and Bhagwati Prasad Srivastava, Advocates were shown in the cause list as Counsels for the appellant. An illness slip was sent only on behalf of one of so many Counsels, namely, Sri D. P. Singh. As we have seen from the order sheet, Sri D. P. Singh had not appeared in the case to argue the matter at any point of time. Though restoration application was filed by him, but that too was argued by Sri H. M. B. Sinha, Advocate as is evident from the order dated 2. 3. 2002 and as late as on 31. 1. 2006 also when this matter was listed before this Court, Sri G. N. Verma Advocate has appeared for the appellant and sought adjournment. Even after filing this review application which is under consideration, initially on 30th March 2007 Sri G. N. Verma had appeared befor

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