Judgment :- 1. The matter arises in execution of the decree and the decree-holder-auction-purchaser is the appellant. 2. The decree in the case was on foot of a hypothecation bond executed by the defendants 1 to 3. In execution thereof, items 1 and 3 which belonged to the 2nd defendant-judgment-debtor were sold in execution on 30-8-1950 when they were purchased by the plaintiff-decree-holder, in full satisfaction of the decree. Within 30 days of the sale, viz. on 28-9-1950 the 2nd defendant applied under Order XXI, R.87, Travancore Civil Procedure Code corresponding to Order XXI, R.90 of the Indian Civil Procedure Code, to set aside the court sale on ground of fraud and material irregularity. On the next day 29-9-1950, the respondent who had purchased the properties in execution of his own money decree filed similar application. These applications were however not proceeded with in view to a stay order obtained by the 2nd defendant in C. M. A. 84 of 1950, taken by him before the District Court against an order under Order IX, R.13, refusing to set aside the ex-parte decree as against him. The District Court, by order dated 5-2-1951, allowed the C.M. appeal on condition that a sum of Rs. 15 was deposited by the 2nd defendant towards the costs of the plaintiff. The 2nd defendant did not nuke the deposit as directed and so the C. M. Appeal was dismissed on 28-2-1951 This order was not communicated to the executing court. But about five months later, on 23-7-1951, the 2nd defendant filed a memo in that court stating that the C. M. Appeal stood dismissed. The executing court thereupon took up the petitions to set aside the sale filed by the 2nd defendant and the respondent and as the first step towards their trial called for payment of process fees for issue of notice to the 1st defendant. And because default was committed in spite of successive postings, the court dismissed both the petitions on 1-9-1951. The confirmation of the sale soon followed and the decree-holder took delivery from the 2nd defendant on 19-11-1951. The 2nd defendant acquiesced in these proceedings but the respondent on 6-12-1951 applied to the court for restoration back to the file, of his petition to set aside the sale, on the plea that he had no notice of the earlier postings and there was really no default on his part. The 2nd defendant acquiesced in these proceedings but the respondent on 6-12-1951 applied to the court for restoration back to the file, of his petition to set aside the sale, on the plea that he had no notice of the earlier postings and there was really no default on his part. The executing court found that the circumstances under which the respondent's petition had been dismissed were rather suspicious and so passed order restoring the petition on 11-10-1954. In appeal before the District Court, the decree-holder-auction-purchaser took the point that the petition for restoration filed by the respondent on 6-12-1951 was not maintainable in the absence of any provision therefor in the Indian Civil Procedure Code which had come into force by 1-4-1951 even before such petition was filed. The District Court however held that with the change in the procedure introduced before the petition was disposed of, viz., on 14-5-1952, by the local amendment under Order XXI, R.104 and 105 in the First schedule of the Indian Civil Procedure Code, the restoration application could well be entertained, the delay in the filing thereof being also condoned. The appeal was accordingly dismissed. Hence this second appeal by the decree-holder-auction-purchaser as abovesaid. 3. It will be convenient at this stage before dealing with the contentions on either side, to notice the changes in the law bearing on the matter, as and when they took place. In the Civil Procedure Code in force in the Travancore jurisdiction wherefrom the case arose, there was to begin with, no provision in Order XXI (dealing with execution of decrees and orders) empowering the court to apply the provisions of Order IX (dealing with appearance of parties and consequence of non-appearance). And the courts also held the view, along with most other High Courts that s.105 (corresponding to s.141, Indian Civil Procedure Code) could not enable such application. At the same time the courts did not feel themselves powerless to exercise their inherent powers in regard to the restoration of execution petitions dismissed for default. see Ouseph v. Varkey,1946 T. L. R.481. At the same time the courts did not feel themselves powerless to exercise their inherent powers in regard to the restoration of execution petitions dismissed for default. see Ouseph v. Varkey,1946 T. L. R.481. But this resort to inherent jurisdiction was obviated by the introduction on 16-10-1120 of a new R.15 in Order IX of the Travancore Civil Procedure Code which provided that R.6,13 and .14 shall apply mutatis mutandis to proceedings in execution falling within s.40 C P. C. (corresponding to s.47, Indian Civil Procedure Code) in which notice to the opposite side is required under the provisions of the Code. The number 6 was apparently a mistake for 9 in the above rule. The Civil Procedure Code Amendment Act II of 1951 (Central) which came into force on 1-4-1951 repealed the Travancore Civil Procedure Code subject however to certain savings contained in s.20 thereof. On 14-5-1952, two new R.104 and 105 were introduced in Order XXI of the Indian Civil Procedure Code as applicable to the state. These rules provided that dismissals for non-prosecution could be had in respect of petitions in execution but that such dismissals could themselves be set aside on petitions therefor if sufficient cause was shown and further that s.5 of the Indian Limitation Act should apply to these petitions for restoration. It is clear from the above narration that at the time when the execution proceedings which led to the court sale and the petition to set it aside, were initiated, Order IX, R.15 of the Travancore Civil Procedure Code was in force; that the Indian Civil Procedure Code unaffected by any local amendment was in force when the respondent filed his restoration application and lastly the Travancore-Cochin R.104 and 105 of Order XXI had come into force when the respondent's petition for restoration was taken up for disposal and actually disposed of. 4. Learned counsel for the appellant is willing to concede that if the Travancore Cochin R.104 & 105 were applicable to the case as the court below thought, his client could have no complaint. 4. Learned counsel for the appellant is willing to concede that if the Travancore Cochin R.104 & 105 were applicable to the case as the court below thought, his client could have no complaint. But he contends that would amount to giving retrospective effect to those rules, so as to interfere with the finality, in favour of his client under the prior law, viz., the Indian Civil Procedure Code as unamended, of the order of 1-9-1951 dismissing the respondent's petition to set aside the court sale and he relied on the Privy Council decision in Delhi Cloth Merchants v. I. T. Commissioner, 54 I. A. 421 =1927 P. C. 242. In reply, learned counsel for the respondent pointed out that no question of vested right, in the application of the Indian Civil Procedure Code as unamended, arose for consideration and that the R.104 and 105 being merely rules of procedure were properly applied in the instant case. Alternatively and assuming that the position contended for, by the appellant's counsel was right, the matter was one for the exercise of inherent jurisdiction as the executing court had done and if so the appeal taken by the appellant, before the court below was itself incompetent and the second appeal herein did not in consequence lie. 5. Taking up first, the question of finality of the order of 1-9-1951-The Delhi Cloth Mills case cited by appellant's counsel dealt with the question how far the right of appeal to the Privy Council, in respect of orders of the High Court on reference under s.66 and provided by s.66 (a) of the Indian Income Tax Act which came into force on 1-4-1926. was available in respect of the orders concerned but passed before that date. Lord Blanesburgh delivering the opinion of their Lordships, observed: "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial sugar Refining Co. v. Irving (1905, A. C. 369); where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provision which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it mast be clearly so provided. Their Lordships cannot find in the section even an indication to that effect." 6. In the Colonial sugar Refining case referred to in the above passage, Lord Macnaughten had laid down that a right of appeal in a pending action was not a matter of mere procedure but stood on a much higher footing and was a vested right which cannot be defeated by a repealing Act. And except for a controversy as to whether the right to appeal accrued to the litigant and existed as on and from the date the lis commenced or on the other hand arose only when the decision by which the litigant was aggrieved was given, which again was recently resolved by the supreme Court decision in Garikapati v. subbiah Choudhry, A.I.R. 1957 s. C. 540, the principle that the right to appeal is a substantial right which cannot be taken away is now beyond challenge. It was indeed only the converse of this proposition that the Privy Council laid down in the Delhi Cloth Mills case when they treated the right to treat a judgment as conclusive, as a vested right. For the right claimed by one party to take up a matter to an appellate tribunal is no more sacred, than the right given to the other party to prevent the right of finality attaching to the decree obtained by him not being disturbed. 7. How this principle of vested right arising from finality of an order has any relevance to this case is however very difficult to understand. Learned counsel says that the freedom from attack through particular means implies a vested right against the future importation of such means. 7. How this principle of vested right arising from finality of an order has any relevance to this case is however very difficult to understand. Learned counsel says that the freedom from attack through particular means implies a vested right against the future importation of such means. That is to say, to the extent that the remedy by way of restoration of a petition in execution dismissed for default was not available to the respondent under the Indian Civil Procedure Code (without amendment) which was in force both at the date of the order dated 1-9-1951 and of the filing of the restoration petition dated 6-12-1951, such remedy could not be made available as against the decree-holder-auction-purchaser by resort to the later amendments by way of R.104 and 105 to Order XXI. But this is not the kind of finality which is contemplated by the principle invoked. Indeed the finality is specifically provided against, even under the unamended Indian Civil Procedure Code, by the general provision for appeal and in hard cases by the exercise of inherent powers as well. And again why the insistence on the provisions of the unamended Indian Civil Procedure Code. For the lis here commenced with the execution petition which initiated the sale proceedings and the law then prevailing was Order IX, R.15 of the Travancore Civil Procedure Code. see Chinto Joshi v. Krishnaji Narayan, I.L.R.3 Bom. 215 where West, J. laid down that an application to set aside an execution sale, though made after the Code of Civil Procedure Act X of 1877, was so intimately connected with the proceedings in execution which had commenced while the prior Act VIII of 1859 was in force and therefore the order allowing the application was governed by the former Code and was consequently not subject to appeal. 8. It is interesting also finally to notice that the cases in the books where the principle of the Delhi Cloth Mills case was applied to, were all cases where the aspect of finality ultimately depended on the absence of a provision to go to a higher tribunal Thus in Ata-Ur-Rahman v. Income-Tax Commissioner, A 1. 8. It is interesting also finally to notice that the cases in the books where the principle of the Delhi Cloth Mills case was applied to, were all cases where the aspect of finality ultimately depended on the absence of a provision to go to a higher tribunal Thus in Ata-Ur-Rahman v. Income-Tax Commissioner, A 1. R.1934 Lah.1013, the question was whether the Income-Tax Amendment Act of 1933 which extended to an assessee a right to claim a reference against an order under s.33 with effect from 11-9-1933 should be interpreted retrospectively so as to permit the reference in case of such an order passed on 1-9-1933 and it was held that it could not be so done. see also Indira sohanal v. Custodian of E. P., A. I. R.1956 s. C. 77. For a case before the Privy Council decision see 35 M. L. J. 377, subramonia Iyer v. Namasivaya. 9. Learned counsel for the appellant did not seriously contend that the rules contained in R.104 and 105 of Order XXI were not provisions regulating procedure. Indeed the position cannot be doubted for, we are dealing here with the process of litigation. If so they can have retrospective effect and will govern all pending proceedings. For as observed in Craie's on statute Law, 5th Edn P. 371. "It is perfectly settled that if the Legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be." Reference may be made in this connection to Pappathi Ammal v. sivagannam Pillai,1954 K.L.T. 827 F. B. where it was held that retrospective effect could be given to Cl. (3) of R.9 of Order IX also introduced by the local amendment of 14-5-1952. It follows therefore that the application of R.104 and 105 of Order XXI by the court below, in the instant case was perfectly justified and the appellant has no cause to complain. 10. It is necessary to observe before closing, that the alternative contention as to inherent jurisdiction raised by learned counsel for the respondent, is also entitled to weight. It follows therefore that the application of R.104 and 105 of Order XXI by the court below, in the instant case was perfectly justified and the appellant has no cause to complain. 10. It is necessary to observe before closing, that the alternative contention as to inherent jurisdiction raised by learned counsel for the respondent, is also entitled to weight. The principle was expressed by that eminent jurist Mahmood, J. so early as 1883 in Narsingh Das v. Mangal Dubey, 5 All. 163,172 F. B. "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed." so in the absence of express provision in the Code for the purpose, every court must be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. If there are express provisions of law applicable to a particular case there is, of course, no inherent power in the court to override them. And the cases in the books are legion where these principles have been given effect to. In respect to execution petitions dismissed for default we have particularly the decision in Radha Kissen v. Keshardeo, A.I.R. 1946 Cal. 488. B. K. Mukherjee J., delivering the judgment of the court said: "The provisions of 0.9, do not apply to execution proceedings. The Court, however, is not altogether incapable of exercising its inherent powers in regard to the restoration of execution petitions dismissed for default, but there mast be clear justifying necessity for exercising such extraordinary powers and the legitimacy of its exercise must be tested with reference to principles which are well established by authorities There is no justification for the exercise of such powers where the dismissal is due primarily to the negligence of a party. It should also be considered whether the other side has or has not justice on its side or has acquired a valuable right under the law of limitation which it may not be just to override. It should also be considered whether the other side has or has not justice on its side or has acquired a valuable right under the law of limitation which it may not be just to override. Ordinarily, the High Court would not interfere with the exercise of discretionary powers by the Court below, but it may do so if it is satisfied that the lower court misdirected itself on a material point of law or fact or failed to advert to and considered such matters as are essential for the proper disposal of the case." This case was cited and followed in Ouseph v. Varkey,1946 T. L. R.481 already referred to. There is finally the recent decision of the supreme Court in Keshardeo v.Radha Kishen. A. I. R.1953 s.C. 23 where Mahajan, C. J. delivering the judgment of the court approved the order passed by an executing court, on its own initiative, in exercise of its inherent jurisdiction, restoring an execution petition dismissed for the apparent default of the decree-holder and further held that such an order was immune from attack by the High Court either in the exercise of its appellate or revisional powers. In this case there can be no doubt that the respondent was unaware of the postings for deposit of process fees for fresh notice to the 1st defendant. The case was taken up on the motion of the 2nd defendant, who ultimately let the matter drop so far as he himself was concerned. And after all, whether any notice to the 1st defendant was at all necessary was a matter in which the respondent might be expected to say something. When therefore the Munsiff found that the circumstances under which the respondent's petition to set aside the sale was disposed of, were rather unusual and proceeded to restore the petition back to the file for disposal on the merits, he was only exercising his inherent powers in the matter. It would follow that the appellant's appeal before the lower court against such order was not sustainable and this second appeal should go on that very ground. 11. The second appeal therefore fails and is dismissed with costs.