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. 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 provides a complete and efficacious remedy to the c1aimant whose application has been dismissed either on merit or on default. 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 provides a complete and efficacious remedy to the c1aimant whose application has been dismissed either on merit or on default. To such cases obviously Section 151 will not be applicable.... 8. In Naka Dandu's case (supra) it has been held: The inherent powers of the Court cannot be invoked where there has been express provision under the CPC for meeting the situation. By virtue of the amendment in the CPC in the year 1976, Rule 104 to 106 have been inserted. Rule 105 read with its explanation includes a claim or objection made under Rule 58 and Rule 106 provides for setting aside orders passed ex parte under Sub-rule (3) of Rule 105. Thus the argument that an application for restoration of the proceeding under Order 21, Rule 58, Code of Civil Procedure, is not maintainable is thoroughly misconceived. 9. 'On reading both the decisions, I am inclined to hold that' in 'Case where there is no complexity of question involved and where there is no provision to meet a situation, Court can invoke its inherent power to do justice. In Naka Dandu's case (supra) in paragraph 5, it has been observed: ...It is an accepted principle that Section 151, Code of Civil Procedure, will have no application to proceedings in execution which provides a complete machinery of its own to meet such contingencies and consequently Order 9, Rule 9, Code of Civil Procedure, cannot be resorted to for restoration of a proceeding in execution which has been dismissed for default..... 10. Section 151, CPC referred to in the above passage is a mistake for Section 141. CPC since Order 9 is applicable to suits. For its application to execution proceedings assistance of Section 141, CPC is to be taken. Since Section 141, CPC is not applicable to execution proceedings, Order 9 is not also applicable for restoring an execution case. It cannot be broadly held that in execution proceedings dismissed for default, inherent power cannot be exercised in any situation. In a given situation, where there is no other provision for restoration and Court feels that ends of justice demands restroration, it can invoke the inherent power u/s 151, Code of Civil Procedure. 11. It cannot be broadly held that in execution proceedings dismissed for default, inherent power cannot be exercised in any situation. In a given situation, where there is no other provision for restoration and Court feels that ends of justice demands restroration, it can invoke the inherent power u/s 151, Code of Civil Procedure. 11. In the aforesaid context, it is to be examined if Rules 105 and 106 of Order 21 would be applicable to the present case. They read as follows: 105. Hearing of application: - (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 other 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 opposite party 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. 106. Setting aside order passed ex parte, etc.-(1) The applicant, against whom an order is made under sub rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the context, it is to be examined if would be applicable to the present Court that there was sufficient cause for his nonappearance when the application was caned 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. (2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party. (2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party. (3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. A perusal of Rule 105 makes it clear that dismissal for default at the stage of hearing is only covered under it. Only when an application is fixed for hearing or on an adjourned date of hearing dismissal of user an application, for default will be covered under Rule 105. If dismissal for default is at any other stage the same is not under Rule 105. In such cases, there is no scope for applying for restoration under Rule 106. Such application would be only by invoking the inherent power of the Court as there is no other provision for the same. 12. Difference between the two powers one under Order 21, Rule 106 and the other u/s 151 is that under Rule 106 in case the requirements are satisfied, Court is to, restore the application and u/s 151, CPC further test is to be applied to examine if justice demands restoration. In that context, it was held in Labany Mohankudo's case (supra) that Court would not exercise inherent power where complex questions are involved and applicant would not be prejudiced since it has the remedy as was provided under Order 21, Rule 63, Code of Civil Procedure. 13. Considering previous decisions, it has been held in 1971 (2) C.W.R. 507 (Bijay Kumar Ash and Ors. v. Smt. Bhagabati Dei). ... Therefore, the contention of the Petitioners that the Court below had no jurisdiction to restore the execution case dismissed for default u/s 151, CPC cannot be sustained. 14. Contention of Mr. B.L.N. Swamy, learned Counsel for the judgment-debtor No. 1-Petitioner that executing Court had no jurisdiction to restore the execution case u/s 151, CPC in view of exhaustive provision in Order 21, Rules 105 and 106, Code of Civil Procedure, has no force because the execution case was not dismissed on a date fixed for hearing. 15. Mr. Contention of Mr. B.L.N. Swamy, learned Counsel for the judgment-debtor No. 1-Petitioner that executing Court had no jurisdiction to restore the execution case u/s 151, CPC in view of exhaustive provision in Order 21, Rules 105 and 106, Code of Civil Procedure, has no force because the execution case was not dismissed on a date fixed for hearing. 15. Mr. R.L.N. Swamy, learned Counsel for Petitioner next submitted that in the present case executing Court ought not to have exercised inherent power since execution of the decree on the date of restoration has become barred by limitation. If I would have sat in appeal, I might have considered this question on merits. However, in revision, it is not open to reassess the materials to come to 11 different conclusion unless such conclusion is found to be perverse. When executing Court found that decree holder was ill on 3-1-1979 when the execution case was dismissed for default and in ends of justice restored the same in exercise of revisional power I am not inclined to interfere with the same. 16. Power of revision ought not to be exercised to interfere with order of restoration. In Keshardeo Chamria Vs. Radha Kissen Chamria and Others, it has been held: We are, therefore, of the opinion that in reversing the order of the executing Come dated 24-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by Section 115 of the Code. It is plain that the order of the Subordinate Judge dated 15-4-1945 was one that he had jurisdiction to make, that in making that order, he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it, he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. Following the aforesaid observation in Bijay Kumar Ash's case. (supra) this Court did not interfere with restoration in the revisional jurisdiction when restoration of an execution case dismissed for default, even in respect of a decree of the year 1955 was restored in the year 1969. 17. Restoration of suit's is also not interfered, with in exercise of revisional power by this Court. In ILR 1964 Cut. (supra) this Court did not interfere with restoration in the revisional jurisdiction when restoration of an execution case dismissed for default, even in respect of a decree of the year 1955 was restored in the year 1969. 17. Restoration of suit's is also not interfered, with in exercise of revisional power by this Court. In ILR 1964 Cut. 18 (Bahadur Pradhani v. Gopal Patel), it was observed: There is another broad principle why this order of restoration of the suit should not be interfered with in revision. The revisional powers are discretionary. It is consistently held that the revisional powers should not be exercised in a case where the exercise of the power is likely to cause injustice to a party. If the discretion is used to if, therefore with the order, the suit is to be dismissed and the Plaintiff would have no opportunity to get his case investigated into by the Court. Once the trial Court has exercised the discretion if favour of the party, it would be unusual for the High Court to interfere with the exercise of discretion unless it is injudiciously exercised. This passage has been approved by the Division Bench in the decision reported in 37 (1971) C.L.T. 124 (Kelu Charan Pradhan and Ors. v. Mani Ram). In 1973 (2) C.W.R. 1174 (Harmohan Senapati v. Srimati Kamala Kumari Senapati), it has been observed: ... There is another wholesome rule that where restoration is allowed and the opposite party gets an opportunity to contest, the High Court will not ordinarily interfere in revision u/s 115, Code of Civil Procedure.... 18. In view of the principles laid down by this Court both in respect of restoration of suits and execution cases, I am not inclined to interfere with the order. 19. While not interfering with the impugned order, I find that executing Court has not considered to mitigate the prejudice to judgment-debtor No. 1 who has not contributed to the dismissal of the execution case for non-prosecution. Non-consideration of this question is a material irregularity in exercise of jurisdiction. 20. I find that judgment-debtor No. 1 is in enjoyment of property which is sought to be recovered by execution. He would, however, suffer as a valuable right of limitation is being taken away. Non-consideration of this question is a material irregularity in exercise of jurisdiction. 20. I find that judgment-debtor No. 1 is in enjoyment of property which is sought to be recovered by execution. He would, however, suffer as a valuable right of limitation is being taken away. In such circumstances, prejudice can be best mitigated in case decree-holder is not permitted to recover the profits in respect of enjoyment of property by judgment-debtor No. 1 till the date of restoration in the impugned order and decree-holder also is directed to pay cost of Rs. 500/- (five hundred) to judgment-debtor No. 1 on or before 15-7-1990. Failing to pay or deposit the amount of Rs. 500/- on or before 15-7-1990 by the decree-holder to judgment-debtor No. 1 in the executing Court, application for restoration shall stand dismissed without further reference to Bench. 21. In the result, Civil Revision is allowed to the extent indicated above. There shall be no order as to costs. Revision allowed. Final Result : Allowed