JUDGMENT

Scott-Smith, J. - This is an appeal by a judgment-debtor from an order of the Senior Subordinate Judge, Rawalpindi setting aside an order dismissing an application for execution in default. The order dismissing the application for execution in default was made on the 19th January, 1921, and the application to have that order set aside was made on the 22nd January, the grounds put forward being that the decree-holders' agent was present outside the Court room and that he had gone to answer the calls of nature when the case was called on for hearing.

2. Mr. Bhagat, on behalf of the respondents, refers to Bholu v. Ram Lal (1921) 2 Lab. 66 in which it was held that Section 151 of the Code of Civil Procedure, 1908, does not apply to a proceeding for execution. It was also held that in the exercise of its inherent power expressly recognised by Section 151 of the Code a Court can restore an application for execution after it has been dismissed for default and should do so if the applicant satisfies the Court that it should exercise its inherent jurisdiction for the ends of justice. Having regard to this authority it is clear that the Senior Subordinate Judge had inherent jurisdiction to restore the application for execution which he had dismissed in default;. Mr. Bhagat further contends that an order passed by a Court in exercise of its inherent jurisdiction under Section 151 is not appealable and in support of this proposition he refers to two decisions of the Patna High Court reported as Sukhdeo Dass v. Rito Singh (1917) 1 Pat. L.W. 551 and Raghunandan Singh v. Jadunandan Singh (1918) 3 Pat. L.J. 253.

3. Mr. Kureshi, on behalf of the appellant, urges that the decree-holders' application was one for review and that under Order 47, Rule 9, Civil Procedure Code, the Court was bound before granting the application to issue a notice to the opposite party and that as it did not do so its order is liable to be set aside in appeal. In answer to this Mr. Bhagat refers to Order 47, Rule 7, (1) which lays down that an order of the Court granting an application may be objected to on certain grounds specified and on those grounds only. He says that it cannot be said that the application for review was in contravention of the provisions of Rule 4, merely because the Court omitted to issue notice to the opposite party. He also refers to Janaki Nath Hore v. Prabhasini Dasi (1916) 43 Cal. 178 in which a Division Bench held that where an appeal was summarily dismissed by a Division Bench of the Court, and such order was ultimately set aside on review by the said Bench on an ex parte application without notice to the respondents, the last order was valid even in the absence of such notice. The ratio decidendi was that as the appeal was dismissed summarily by an ex parte order there was really no opposite party to whom it was necessary to give notice, within the meaning of Order 47, Rule 4(2), proviso (a). At the time when the order of dismissal in default was made on the 19th January, 1921, efforts were being made to serve a warrant on the judgment-debtor but up to that time the warrants had issued without success. The hearing of the case was going on in the absence of the judgment-debtor and I think it cannot be said, following the reasoning of the Calcutta High Court in the case above referred to, that there was any opposite party to whom it was necessary to issue the notice In my opinion then it cannot be said that the order of the Senior Subordinate Judge appealed against was passed without jurisdiction.

4. It should also be noted, as urged by Mr. Bhaghat, that neither in the application nor in the order was it stated under what provisions of law the application was made or the order passed. The order could certainly have been passed under Section 151, Civil Procedure Code, and I am not prepared to say that, under the circumstances of the case, there would have been any necessity to issue notice to the judgment-debtor beforehand. Mr. Kureshi