S. 151, C. P. C. is applicable in an execution proceeding where there is no specific provision for the exercise of inherent power.

S. C. MOHAPATRA, J.

( 1 ) THE facts giving rise to this civil revision are as follows :- on 14-5-1966, Sadhavani Patrani obtained a decree for recovery of possession of a double storied building in Jeypore town. She executed the decree in Execution Proceeding No. 35 of 1966. During its pendency, she expired on 20-11-1968. The petitioner filed an application on 7-1-1969 to be substituted in place of the deceased decree-holder as her legal representative alleging that Sadhavani executed a Will in his favour and registered it on 23-12-1959 and a Codicil on 25-9-1967 apart from adopting him as a son. The judgement debtors objected to the said application. Enquiry was conducted on the application of the petitioner and one witness was examined on commission. At the stage the objection of the judgement-debtors that they are real successors was directed by order dated 16-1-1970 to be registered as a Misc. Case under S. 47, C. P. C. The relevant portion of the order reads as follows :-". . . . . BE that as it may, as rightly contended by the learned advocate for the petitioner, there appears to be mixed question of law and fact and since the effect of any order regarding the objection being fairly contended by the learned advocate for the J. Dr. to have the force and effect of order under S. 47, C. P. C. it is proper to register as a Misc. Case under S. 47 as prayed by the petitioner and to treat the evidence already recorded to be the evidence for all purposes of the Misc. Case. Hence that the petition of the J. Dr. be registered as a Misc. Case and that the evidence recorded be treated as the evidence for all purposes of this Misc. Case. . . . . . . "the objection was accordingly, registered as M. J. C. No. 2 of 1970. It was dismissed for default on 29-7-1972. The Execution Proceeding was, therefore, required to proceed from the stage where it was left, i. e. , enquiry on the question of legal representative of the deceased decree-holder. After various dates, by order dated 7-1-1976 the Executing Court directed enquiry into the application of the petitioner dated 7-1-1969. The relevant portion of the order reads as follows :-"now as the facts stand the counter which was filed by the J. Dr. to the petition of Sarat Chandra Patra for adding him as L. R. has been dismissed for default, and therefore, the petition dated 7-1-1969 filed by Sarat Chandra Patra is still open for consideration. . . . . . "the application was posted for enquiry being an application in the Execution Case. On 30-4-1979, the case was posted for hearing to 21-6-1979. However, the order-sheet reveals that M. J. C. No. 2 of 1970 was so posted. On 26-10-1979, the applications of both the parties for adjournment were rejected and M. J. C. No. 2 of 1970 was dismissed for default of the Petitioner. Thereafter, on 4-2-1980, the petitioner filed an application to recall the order dated 26-10-1979 and to permit him to continue and proceed with the execution proceeding. By order dated 16-3-1981, the petition having been dismissed, petitioner preferred an appeal which has also been dismissed giving rise to this civil revision.

( 2 ) IN both the forums it was not disputed that the application of the petitioner dated 7-1-1969 was registered as M. J. C. No. 2 of 1970 which is a wrong admission on the face of it. The Executing Court held that the petition dated 7-1-1969 was wrongly directed to be registered as a Misc. Case. This inference is contrary to the fact borne out from the record. On merits the Executing Court held that since the said Misc. Case was dismissed for default and no steps have been taken by the petitioner for restoration of the same, according to law the order of dismissal passed cannot be recalled on the basis of application dated 4-2-1980. The further ground of dismissal was that the Will having been registered at Jeypore in respect of the property in Jeypore which was at one time within the jurisdiction of Madras High Court, the petitioner cannot establis