Judgment : Javed Iqbal Wani, J. 1. This order shall dispose of the instant application being filed by the applicant under Section 151 Cr.P.C. for recalling of order dated 30.12.2017 where under restoration application being 05/2017 filed for re-admission of appeal bearing No. 25/2011 had been dismissed. 2. Heard learned counsel for the parties and perused the record. 3. Learned counsel for the parties reiterated their submissions in tune with their respective pleadings. 4. While learned counsel for the applicant prayed for recalling of the order dated 30.12.2017, on the grounds urged in the application, the counsel for the non-applicant insisted for dismissal of the application inter-alia amongst others, fundamentally on the ground that the application is not maintainable. 5. Before adverting to the application in hand, a brief resume of the case which emerges from the record is that a first appeal had been filed by the applicant herein against the judgement and decree passed by the court of District Judge Samba in File No. 50/Samba dated 20.04.2009 in favour of respondents/non-applicants being CIA No. 25/2011. 6. The said appeal had got dismissed for non-prosecution on12.07.2016. The dismissal of the appeal resulted into filing of an application for execution of the decree by the plaintiffs/respondents herein prompting the appellant/applicant herein to file an application for re-admission of the appeal being 05/2017. The said application being time bared had been accompanied with an application for condonation of delay. The said condonation of delay application had been allowed in terms of order dated 06.06.2017 and restoration application directed to be diarized. 7. During the pendency of the said restoration application, MP No. 02/2017 is filed by the plaintiffs/non-applicants herein for release Rs.05 lacs of decretal amount which had been deposited by the applicant herein before this court pursuant to an order dated 29.03.2017. 8. The application for restoration supra had been dismissed by this court for non-prosecution on 30.12.2017. The said order is sought to be recalled through the medium of the instant application. 9. On 23.05.2018 the date of issuance of notice in the application in hand, decretal amount deposited before this court by the applicant herein was directed to be released in favour of the plaintiffs/non-applicants herein subject to an undertaking that in case the applicant herein succeeds in the appeal the amount so received by the non-applicants herein shall be reimbursed with interest. 10. 10. The inherent power of this court under Section 151CPC is being invoked in the instant application for the reasons detailed out there in which are extracted and reproduced in extenso along with accompanied affidavit here under: The applicant most respectfully submits as under:- 1. That the above titled execution petition was listed in the Hon’ble Court for hearing on 12.03.2018. Through this execution petition/application on 12.03.2018 for the First time, appellant came to know that restoring application filed for restoration of appeal has been dismissed for non-prosecution. It may be specifically stated that the appellant herein came to know for dismissal of restoration application from the perusal of copy of order dated 30.12.2017 annexed with the execution petition. The execution petition revealed that application for restoration filed by applicant seems to be dismissed as the then counsel of the Forest Department was not present. 2. It may be stated that applicant herein was not at fault in any manner for taking steps for prosecution of application and for restoration of appeal and always bonafidly believed that the counsel engaged by Department was appearing and defending the interest of Department. It is settled position of law that client cannot be made suffer due to non appearance of the counsel. 3. That the appellant hearing was very much interested in prosecuting appeal as well as an application for restoration and deem to contest the appeal which has been filed. Coy of certified order dated 30.12.2017 has been applied on 19.03.2018. An affidavit in support of an application under section151 of CPC for recalling the order dated 30.12.2017 is enclosed. Prayer For submission contained hereinabove and those to be urged at the time of hearing for application for restoration of appeal dismissed in terms of order dated 30.12.2017 may kindly be recalled and applicant may be given opportunity to make the submission on merits of case. 11. The moot point that falls for consideration of this court in the light of objections raised by the non-applicants, would be as to whether the application in hand is maintainable and as to whether the order of dismissal of the restoration application could be recalled as such, in exercise of powers under Section 151 CPC. 12. 11. The moot point that falls for consideration of this court in the light of objections raised by the non-applicants, would be as to whether the application in hand is maintainable and as to whether the order of dismissal of the restoration application could be recalled as such, in exercise of powers under Section 151 CPC. 12. The law on the subject is not more res-integra and there has been a long line of decisions of the Apex Court relating to practice and procedure qua exercise of inherent powers by the courts under Section 151 CPC. 13. A reference to the judgement of the Apex Court titled as “Jet Ply Wood (P) Ltd. And Another Vs. Madhukar Nowlakha and Ors. Reported in (2006) 3 SCC”, would be relevant and germane herein wherein at Para 25, following is observed and noticed: - “25………There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Coe can be resorted to in the interest of justice. The principle is well established what when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This court had occasion to observe in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ) as follows: (SCR P.459) “It is well settled that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.” 14. Further reference to the judgement of the Apex Court passed in case titled as “Commissioner, Mysore Urban Development Authority Vs. S. S. Sarvesh, reported in (2019) 5 SCC144” would also be relevant and germane herein, wherein at Para 16 and 17, following is observed and noticed: - “16. Indeed, this case reminds us of the subtitle observations of the learned Judge Vivian Bose, J., which His Lordship made in one of the leading cases of this Court in Sangram Singh V. Election Tribunal. “17. Indeed, this case reminds us of the subtitle observations of the learned Judge Vivian Bose, J., which His Lordship made in one of the leading cases of this Court in Sangram Singh V. Election Tribunal. “17. Vivian Bose, J., speaking for the Bench, in his distinctive style of writing made the following observations while dealing with the case arising out of Order 9 and reminded the courts of their duty while deciding the case. The observations are apt and read as under: (AIR p.429, paras 16-17) “16……..a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ‘both’ sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17…….our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle”. 15. Law being settled that the underlying principle qua the exercise of inherent power under Section 151 CPC is advancement of ends of justice. It is also settled law that Section 151 CPC has not created any new power but has preserved the power to act in the ends of justice and to prevent abuse of the process of court which the courts had been exercising from before. The inherent power is held to have been preserved in order to enable the court to deal with the matters and situations which are not covered by any specific provision of the Code. 16. The inherent power is held to have been preserved in order to enable the court to deal with the matters and situations which are not covered by any specific provision of the Code. 16. Indisputably, it is manifest from the record that on 30.12.2017, the applicants counsel had been absent in the restoration application only on the said date and on rest of the dates whenever the application had been listed counsel had been present for the applicant. Fact also remains that restoration application related to the re-admission of first appeal filed under Order 41 Rule 17 which appeal had been assailing judgement and decree dated 20.04.2009 filed by the applicant herein. It is settled law that first appeal is a valuable right and appellant is entitled to the prosecution of the appeal on merits. The dismissal of restoration application of the applicant herein for re-admission of appeal on 30.12.2017 in essence dismissed the first appeal of the applicant herein depriving the applicant/appellant of his valuable right of prosecuting the first appeal on merits and in the process causing failure of justice. Courts are bound to do substantial justice and it is settled law that dismissal of appeal on merits is different from dismissal of appeal for default and that dismissal after hearing a litigant is always preferred over dismissal of the case in default. 17. There is no specific provision provided under the Code of Civil Procedure which provides for restoration of an application dismissed in default which had been filed for re-admission of an appeal which is dismissed in default. 18. The impugned order dated 30.12.2017 dismissing the restoration application supra for merely one absentee of the applicant/appellant in view of aforesaid position of law inasmuch as in the facts and circumstances of the case can safely said to be warranting exercise of inherent power under Section 151 CPC by this court for recalling of the said impugned order for advancing the cause of justice. 19. The objections raised by the counsel for the non-applicants inasmuch as judgments referred thereto are rendered in consequential and pales into insignificance in view of the aforesaid position of law coupled with the peculiarity of facts and circumstances of the case. 20. Having regard to what has been observed, considered and analyzed hereinabove application in hand merits acceptance and is accordingly allowed. 20. Having regard to what has been observed, considered and analyzed hereinabove application in hand merits acceptance and is accordingly allowed. The order dated 30.12.2017 is recalled and restoration application No. 05/2017 is restored and directed to be listed on 29.04.2021. 21. It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the application seeking restoration of appeal. 22. Disposed of.