JUDGMENT : Biswanath Rath, J. 1. This Civil Miscellaneous Petition has been filed seeking a direction for setting aside of the order dated 4.07.2016 passed by the District Judge, Kandhamal in E.P. Case No.2 of 2012 and further seeking a direction from this Court to allow the petitioner to file the show cause in the Execution Proceeding, which may be considered by the learned District Judge, Kandhamal. 2. Short background involved in the case is that the petitioner is the functionary of the State and the opposite party being the decree holder filed Execution Case No.1 of 2012 claiming recovery of amounts involved therein. Referring to the order sheet involving Execution Case No.1 of 2012 i.e. on 13.1.2013 the judgment debtor stated that the Decree Holder has not taken any effective steps to remove the defects from the office note in the execution case and on admission of the execution case on 22.02.2013 & 13.07.2013 the decree holder filed a petition praying therein to delete the name of the judgment debtor on the ground stated therein. As a consequence, name of one of the judgment debtor got deleted by order dated 23.07.2013. On which date the judgment debtor 2 was set ex parte for its remaining absent in Court in spite of due notice. It is alleged that the decree holder had not taken any steps to file correct requisites against the judgment debtor. It is only when the decree holder filed a petition under Section 128 (2) (d) of C.P.C. requesting for passing of an order for attachment of item stated in the petition, the Judgment Debtor came to know regarding pendency of such case. This petition was filed by the decree holder on a memo for not pressing the same and the same was rejected. On 9.11.2015 the Government pleader on behalf of the judgment debtor filed a memo of appearance and also filed a petition under order 21 Rule 106 of C.P.C praying to set aside the ex parte order dated 23.07.2013. The judgment debtor filed a petition for withdrawal under Order 21 Rule 106 read with Section 151 of C.P.C through Government pleader and on the same date the Government pleader filed another application under Order 9 Rule 13 read with Section 151 of C.P.C praying to set aside the order dated 23.07.2013. The judgment debtor filed a petition for withdrawal under Order 21 Rule 106 read with Section 151 of C.P.C through Government pleader and on the same date the Government pleader filed another application under Order 9 Rule 13 read with Section 151 of C.P.C praying to set aside the order dated 23.07.2013. After few days the Government pleader also filed another petition under Section 5 of the Indian Limitation Act. While the matter stood thus, on 21.4.2016 the Government pleader filed another petition under Order 21 Rule 58 of the C.P.C. The District Judge took up the application under Order 9 Rule 13 read with Section 151 of C.P.C alongwith the application under Section 5 of the Limitation Act and dismissed the petition by his order dated 4.07.2016 giving rise the present Civil Miscellaneous Petition. By filing the application for restoration the JDR submitted that though the notice has reached their office through the staffs at lower level but as the notice copies were misplaced and has not been brought to the notice of the Officer concerned, he could know regarding pendency of the proceeding only after getting the notice of attachment involving the execution. 3. Assailing the impugned order under Annexure-6, Sri Somanath Mishra, the learned Additional Government Advocate contended that for there being no provision in a execution proceeding to set a party ex parte, the order dated 23.07.2013 becomes bad. Further, since the order was passed without following any provision of law, there was no scope for rejecting the application for recalling the ex parte order at the instance of the judgment debtor. Learned Additional Government Advocate further taking the stand that the decreetal dues as per the award involving the arbitration proceeding since being paid, contended that the decree involving the arbitral award was fully satisfied and for involvement of such a grievous issue, in the interest of justice, the executing Court should have given an opportunity of objection as well as hearing to the judgment debtor by allowing the application at the instance of the judgment debtor. 4. Referring to the judgment as reported in AIR 1987 (SC) 1353 learned Additional Government Advocate further contended that the impugned order since runs contrary to the above proposition of law, the impugned order should be interfered with and set aside. 5. 4. Referring to the judgment as reported in AIR 1987 (SC) 1353 learned Additional Government Advocate further contended that the impugned order since runs contrary to the above proposition of law, the impugned order should be interfered with and set aside. 5. Referring to the order sheet as available at Annexure-5 for the decree holder’s not taking steps to file the correct requisites against the judgment debtor from 13.08.2013 to till 2.3.2015, learned Additional Government Advocate also contended that the execution proceeding was not even ready for filing of objection on behalf of the JDR. Referring to the provision contained in Order 21 Rule 105 of the C.P.C and Order 21 Rule 106 of C.P.C learned Additional Government Advocate contended that the learned District Judge has not taken into consideration the provision in the C.P.C. Sri Mishra referring to the provisions contained in the above two provisions submitted that even assuming that there is no scope for setting aside the ex parte order in an execution proceeding, power under Section 151 of the C.P.C should have been exercised. 6. Referring to the decisions in the case in between Govinda Chandra Tripathy and another versus Pal Hira Purchase Ltd. arias Pal Mine Purchases Ltd. as reported in 1985 (1) OLR 156, another decision in the case in between Naka Dandu versus Sodi Savitri and others as reported in 1986 (II) OLR 382, Sri Mishra, learned Additional Government submitted that for the decisions therein of this Court, it appears, the trial Court went wrong in rejecting the application for restoration of the execution case and Sri Mishra, learned Additional Government Advocate therefore, requested this Court for restoration of the execution proceeding by allowing the application at the instance of the judgment debtor on interference with the impugned order. 7. Sri Y. Das, learned Senior Advocate appearing for the decree holder on the other hand, referring to the different provisions contained in Order 21 of the C.P.C vehemently objected the submissions made by the Sri Mishra, learned Additional Government Advocate and contended that there being no provision for restoration of the execution proceeding following the provisions contained in Order 21 and specifically for the restrictions in the Sub rule 106 of Order 21 of C.P.C urged that once the order of attachment was issued involving an execution proceeding, there remain no question of restoration of a execution proceeding. Taking reliance of two of the decisions of different High Courts one of being of this Court in the case in between Suka Kukhi versus Nata Mukhi & others as reported in 70 (1990) C.L.T. 776 and another decision in the case in between Deo Narayan Goala & Ors. versus Jagadish Pandit as reported in AIR 1985 Gauhati 49 Sri Das, learned Senior Advocate contended that both the above decisions have the support to the case of the decree holder and thus, claimed that there is no infirmity in the impugned order. 8. Considering the rival contentions of the parties, this Court finds, the claim of the petitioner for restoration of the execution proceeding is on the premises of having no information regarding initiation of such proceeding to the JDR, for missing of the notice copy at the lower level and the JDR got chance to file such application only after notice of attachment was served on him. It is at this stage considering the submission of Sri Das, learned Senior Advocate appearing for the decree holder that for their being no provision for restoration of the execution proceeding after the notice of attachment was served on the J.D.R, this Court now proceeds to look to the provisions contained in the order 21 of the C.P.C. Order 21 of C.P.C deals with execution of the decrees and orders. Order 21 Rule 8 prescribes the execution of the decree or the order by the Court to which it is sent. Rule 10 prescribes an application for execution. Rule 17 prescribes procedure on receiving the application for execution of the decree. Rule 30 prescribes decree for payment of money. Order 21 Rule 105 provides hearing of the execution proceeding and Sub Rule 3 of Rule 105 empowers the executing Court for hearing the application ex parte in the event the opposite party does not appear in spite of notice. Rule 106 prescribes scope for setting aside the order passed ex parte. Rule 106 of Order 21 is quoted as hereunder: “106. Setting aside orders passed ex parte, etc. Rule 106 prescribes scope for setting aside the order passed ex parte. Rule 106 of Order 21 is quoted as hereunder: “106. Setting aside orders passed ex parte, etc. – (1) The applicant, against whom an order is made under Sub-rule (2), 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 Court that there was sufficient causes for his nonappearance when the application was called 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. (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 applicant had knowledge of the order.]” 9. Reading of the sub rule 1 of rule 106, this Court finds, if the Court satisfies that there was sufficient cause for nonappearance of a party when the application was called for hearing, the Court shall set aside the order on such terms as to costs or otherwise as he thinks fit and proper and shall appoint a day for further hearing of the matter. Sub Rule 3 reveals, an application under Sub Rule 1 shall be made within 30 days from the date of order and in case of ex parte order and the notice was not duly served within thirty days from the date when the applicant had knowledge of the order. 10. Sub Rule 3 reveals, an application under Sub Rule 1 shall be made within 30 days from the date of order and in case of ex parte order and the notice was not duly served within thirty days from the date when the applicant had knowledge of the order. 10. Considering the pleadings of both the parties available through record, this Court finds, the JDR 2 had a clear case that even though the notice was served on it but the notice being served at the lower level and the person concerned in the lower level having misplaced the notice, the JDR 2 could not become aware about pendency of the proceeding and it came to know about pendency of the proceeding only when it was served with the notice of attachment. This Court reading of the provision at Sub Rule 3 Rule 106 of Order 21 finds, the provision makes it clear that the application should be made within thirty days from the date when the applicant had knowledge of the order. For involvement of the Government Office in the proceeding and for the established practice for service of notice through the Office of the establishment, it will be presumed that the JDR got the information of the institution of such proceeding on the date when the notice was served on it. There is no room for taking a plea that the notice served on the JDR was misplaced and therefore, the JDR was not aware of the institution of the proceeding. Taking into consideration the decision of the Hon’ble Apex Court as reported in 2005 (II) OLR (SC) 554 where the Hon’ble Apex Court dealing with a case of this nature has held that when the execution application was dismissed for default, the starting point for limitation of restoration application would be the date of order and not the knowledge and further looking to the provisions contained in Rule 105 of Order 21 of the C.P.C this Court finds, this provision deals with declaring the JDR as ex parte and applies only when an ex parte order is passed, when the fixed date is for hearing of the application and that there is application of the provisions for setting aside the ex parte order following the provision contained in Rule 106 of Order 21. At this stage scanning the entire order sheet as at Annexure-5 this Court finds, the order Nos.25, 26, 27 & 28 reads as follows: Order No:25. Order dated: 1.5.13 Advocate for DHR is present. SR not yet back. Put up on 27.6.13. for SR. (Dict.) Sd/- Dist. Judge, Order No:26. Order dated: 27.6.13 Advocate Sri M.R. Mohanty and Sri M.K. Panda files Vakalatnama for the DHR with no objection of previous engaged lawyer. The V-Nama is accepted. SR of AD Card issued to JDR-2 back after service. He is absent on call. No steps is taken by him. So service against the JDR No.-2 is held to be sufficient. Put up on 3.7.13 for filed taken steps against JDR no.-1. (Dict.) Sd/- Dist. Judge, Order No:27. Order dated: 3.7.13 Advocate for DHR files a memo stating to delete JDR No.2 from the case. Since basing on the memo of counsel the party cannot be deleted. The JDR is directed to file a regular petition as per law for the purpose. (Dict.) Sd/- Dist. Judge, Later on 3.7.13. Advocate for the DHR files a petition praying to delete the JDR No.1 on the grounds stated therein. Put up on 23.7.13 for hearing of petition . (Dict.) Sd/- Dist. Judge, I/c”. Order No:28. Order dated: 23.7.13 Advocate for the DHR files hazira. Petition dtd. 3.7.13 of the DHR to delete JDR. No.1 from the case title of the execution petition is put up for hearing. Heard, the learned counsel for DHR. Since the DHR desires to delete JDR No.1 from the case title of the execution petition, his prayer is allowed. Delete the name of JDR No.1 from the cause title of the execution petition SR of postal A.D issued against JDR No.2 though back on 9.4.13 after personal service on JDR No.2 he neither appeared in the case nor taken any steps. Hence, JDR No.2 is set ex parte. DHR to take steps to proceed with the execution proceeding as per law by 13.8.13. (Dict.) Sd/- Dist. Judge,” 11. Reading of the aforesaid orders, this Court finds, the execution case was not posted for hearing on 23.07.2013 rather the case was posted to 23.07.2013 for hearing of a petition at the instance of the decree holder praying to delete the name of JDR No.1. (Dict.) Sd/- Dist. Judge,” 11. Reading of the aforesaid orders, this Court finds, the execution case was not posted for hearing on 23.07.2013 rather the case was posted to 23.07.2013 for hearing of a petition at the instance of the decree holder praying to delete the name of JDR No.1. Under the circumstance and as the JDR was set ex parte not on the date fixed for hearing of the execution proceeding, neither the provisions contained in Rules 105, 106 of Order 21 nor the judgment of Hon’ble Apex Court referred to hereinabove have any application to the case at hand. There being no other provision available for restoration of order making the JDR ex parte under Order 21 of C.P.C, this Court observes, the application at the instance of the petitioner could have been considered to be an application under Section 151 of C.P.C and for the inherent powers lying with the Court undertaking such proceedings and as the application was filed with delay, taking into consideration ensuring a fair trial of the issue on contest of the parties the same could have been allowed but however, subject to grant of cost to mitigate the sufferings of the decree holder for an attempt of restoration of a case admittedly after three years. 12. Under the circumstance and for the observations made hereinabove, this Court interfering with the impugned order, sets aside the order vide Annexure-6 and as a consequence, while allowing the application of the petitioner filed on 8.12.2015, taking into consideration the sufferings of the decree holder for no fault of him, this Court imposes a cost of Rs.15,000/-(Rupees Fifteen thousand) on the petitioner, which amount will be paid to the opposite party in the executing Court on the date of appearance. Further, considering that the execution proceeding involving the parties is pending since 2012, this Court directs the judgment debtor to file its objection on the date of appearance in the Court below on 9th of October, 2017 alongwith payment of cost also on the same date. The execution proceeding should also be concluded by end of November, 2017. 13. The Civil Miscellaneous Petition succeeds, but however, with imposition of cost as indicated hereinabove.