The Supreme Court has observed that mere non-mentioning of a correct provision is not fatal to the application if the power to pass such an order is available with the court.
In this appeal One Mafaji Motiji Thakor (for short ‘MMT’), who is the father and predecessor-in-interest of respondent nos. 2(A) to 2(D), was the owner of the suit land. He had executed a power of attorney in favour of respondent no. 3, Avnish Raman Lal (for short ‘ARL’). It is alleged that on 29.01.2005, ARL exercising his power under the power of attorney, sold the land to Pruthvirajsinh Nodhubha Jadeja (deceased), predecessor in interest of the appellants herein. MMT filed a civil suit (No.89 of 2006) against the predecessor in interest of the appellants and ARL herein challenging this sale. One of the grounds raised was that no power to sell the property had been vested in favour of ARL in terms of the power of attorney executed by MMT. It appears that during the pendency of the suit, a Court Commissioner was appointed, who reported that MMT continued to be in possession of the land. ARL in his written statement filed in the suit admitted that the power of attorney did not give him any power to sell the land. He further stated that he had never executed the sale deed in favour of predecessor n the interest of the appellants.
The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed that;
According to us, the application was wrongly filed under Order I Rule 10 CPC and it should have been filed Order XXII Rule 10 CPC. It is well-settled law that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court. The below judgment is the recent legal judgment in India.
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