Inherent power u/s 151, Code of Civil Procedure, can be invoked to restore an execution case dismissed for default, where there is no other provision for restoration. However, the Court should consider whether justice demands restoration.

JUDGMENT :

S.C. Mohapatra, J. - judgment debtor No. 1 is Petitioner in this Civil Revision which arises out of an execution proceeding of a final decree in a suit for partition.

2. Final decree was made on 2-5-1967 which was drawn and signed on 30th March, 1978. Opposite Party No. 1 decree holder filed execution case No. 15 of 1978 on 11-7-1978. Notice was sent to the judgment debtors which return unserved on judgment-debtor Nos. 2, 4 and 5, judgment debtor No. 1 Petitioner entered appearance and prayed for time to file objection which was allowed. Executing Court directed decree-holder to take steps for fresh notice against judgment-debtor Nos. 2, 4 and 5, On 8.12-1978. decree-holder applied to expunge names of judgment-debtor Nos. 2 and 4 as they were dead. Before disposal of such petition, notice was directed to be issued against judgment debtor Nos. 3 and 5 only. As no step was taken against judgment debtor Nos. 3 and 5, execution case was dismissed for non-prosecution when decree-holder was found absent judgment-debtor No. l had not filed objection by that time. Decree-holder filed another application for execution registered as Execution Case No. 40 of 1979 which was dismissed as barred by limitation. On 2nd March, 1983. Thereafter, decree-holder filed an application for restoration of Execution Case No. 15 of 1978 invoking inherent power of the Court u/s 151, Code of Civil Procedure. Execution Case having been restored this Civil Revision has been filed.

3. Case of decree-holder was that on 3-1-1979 he was suffering from fever for which he could not appear to take steps. He examined himself as P.W. 1 and another witness in support of his illness. Petitioner examined two witnesses to prove that decree holder was not ill. On assessment of evidence, executing Court held that on the facts and circumstances, story by the decree holder that on the relevant date he was suffering from fever as a result of which, he could not come to the Court, cannot be disbelieved. On such finding, Executing Court exercised inherent power and restored the execution case to file.

4. When the matter was listed for taking steps for notice as against opposite party No. 2/Ka in the matter of restoration of Civil Revision dismissed against him, I perused the record and found that opposite party No. 2/Ka is another judgment-debtor whose interest would not be affected even if I allow the Civil Revision. Hence, I heard the Civil Revision on merits as records of the execution case were available.

5. Mr. B.L.N. Swamy, learned Counsel for the Petitioner (judgment-debtor No. 1) submitted that application u/s 151, Code of Civil Procedure, for restoration of the execution case dismissed for non-prosecution was not maintainable in view of specific provision for restoration of such application under Order 21, Rule 106, CPC Mr. Swamy further submitted that in the facts and circumstances of this case, inherent power ought not to have been invoked to restore the execution case. Both contentions require careful consideration.

6. Prior to amendment of the CPC by Act 104 of 1976, this Court held in 1975 (2) C.W.R. 1071, (Labany) mohankudo and Ors. v. Municipal Council, Parlakhemundi and Ors.) that Section 141, CPC not being applicable to execution proceeding, Order 9 has no application. Considering the said decision in the decision reported in Naka Dandu Vs. Sodi Savitri and Others it has been held that after amendment Rules 104 to 106, CPC have been inserted which provided for restoration of applications dismissed for default and accordingly, inherent power u/s 151, CPC is not to be invoked.

7. In Labany Mohankudo's case (supra) it was held:

The inherent power embodied in Section 151 is always a power inherent in Court by virtue of which the Court is to do Justice between the parties before it. In considering the property of invoking the inherent power, the Court should take into account matters like the complexity of the questions involved and the like. Order 21, Rule 63