The restoration of a dismissed execution petition for default is possible under Order 21, Rule 105(1) read with Rule 104 of the CPC, and the court has no need to resort to its inherent power under Section 151 of the CPC for this purpose.

( 1 ) THIS is a petition to revise the order of the District Munsif, Sompeta in E. A. No. 578 of 1958 in E. P. No. 303 of 1958 in O. S. No. 41 of 1946 on his file.

( 2 ) THE relevant facts are briefly these:- The petitioner is the decree-holder. He was the plaintiff in O. S. No. 41 of 1946. He filed E. P. No. 303 of 1958 in execution of the decree in O. S. No. 41 of 1946. On 7-11-1958, the E. P was dismissed on the ground that batta was not paid. On that day, more than twelve years had elapsed from the date of the passing of the decree in O. S. No. 41 of 1946. The decree-holder filed E. A. No. 578 of 1958 praying for restoration of the E. P. alleging that the batta could not be paid due to over-sight on the part of the clerk of the pleader appearing for him (plaintiff) and that he would be put to irreparable loss if the E. P. was not restored. The learned District Munsiff framed one point for determination as follows: "whether the execution petition can be restored, which was dismissed for default?" He found that there are no grounds to restore the E. P. and dismissed the E. A. Thereupon, the plaintift-decree-holder has filed this revision.

( 3 ) RULES 104 and 105 (1) of Order 21 Civil Procedure Code run as follows: -"104. (1) The Court before which an application under any of the foregoing rules of this order is pending may fix a day for the hearing of the application. (2) Where on the day fixed or on any day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. (3) Where the applicant appears and the respondent to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. Explanation:- An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58 of this order. ""105 (1): The applicant against whom an order is made under Sub-rule (2) of the preceding rule or a respondent against whom an order is passed ex parte under Sub-rule (3) of the preceding rule or under Sub-rule (1) of Rule 23 of this order, may apply to the Court to set aside the order and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. "it is clear that the dismissal of the execution petition comes under Order 21, Rule 104 (2) Civil Procedure Code and that the restoration of the E. P. can be done under Order 21 Rule 105 (1) Civil Procedure Code.

( 4 ) THE learned District Munsif has relied on the Full Bench decision of the Madras High Court in Alagasundaram Pillai v. Pichuvier, ILR 52 Mad 899 : 57 Mad LJ 381 : (AIR 1929 Mad 757) and the decision of the Supreme Court in Keshardeo v. Eadhakissen, 1953-1 Mad LJ 100 : (AIR 1953 SC 23) for holding that the E. P. which was dismissed, could not be restored under Section 151 Civil Procedure Code when the dismissal was due to a mistake other than one committed by the Court itself. The learned District Munsif dismissed the petition on the ground that there was no mistake committed by the Executing Court, but that there was a mistake committed by the plaintiff in not paying the batta, as ordered by the Court. After framing the question, the learned District Munsif proceeded to state as follows: -"it is well settled that the provisions of Order IX, Civil Procedure Code do not apply to execution proceedings. The only question is whether this Court in exercise of its inherent powers under Section 151 Civil Procedure Code can restore an application dismissed for default in execution proceedings?"on this basis, he has only considered the question formulated by him and referred to a decision of this Court in Budla Eswaraiah v. Kasala Sam-bamma, 1958-1 Andh