Point of law: It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application, since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter it is not necessary to look into other aspects agitated by the contesting parties not to look into the authorities cited before us. Accordingly the order of the High Court affirming that of the First Appellate Court is set aside and order of the Executing Court is restored

JUDGMENT :

V.P. PATEL, J.

1. The present Applicant/Original Respondent No. 14-Election Officer, Banaskantha in Election Petition No. 5 of 2019 has filed the present Election Application for the prayers as mentioned in paragraph 6 and 7, which reads as under:

“6. In view of the specific statutory provisions contained in the Representation of the People Act, 1951 and the above mentioned decisions of the Hon’ble Courts, it is humbly submitted that the Applicant herein may be deleted as a party respondent and as such his name should be struck off from the array of Respondents.

7. The Applicant therefore prays that this Hon’ble Court may be pleased to:

(A) Allow the present application.

(B) Delete the Applicant and to strike out his name from the array of parties in Election Petition no. 5 of 2019.

(C) Pass such other and further orders as may be deemed necessary and proper in the facts and circumstances of the case.”

2. Heard learned Advocate Mr. Sahil M. Shah for the Applicant and learned Advocate Mr. R.J. Goswami for Opponent No. 1. Though Notice is duly served to Opponent Nos. 2 to 13, they have chosen not to remain present. No Notice is also served to Opponent Nos. 14 and 15. Heard Opponent No. 16 Madhu Nirupaben Natvarlal appearing as party-in-person.

Arguments on behalf of the Applicant:

3. Learned Advocate for the Applicant has submitted that Madhu Nirupaben Natvarlal-Party-in-Person in Election Petition No. 5 of 2019 (hereinafter referred to as “the Election Petition”) has impleaded amongst others the present Applicant-Election Officer, Banaskantha as Respondent No. 14 in the Election Petition. It is submitted that there is no requirement to join the present Applicant Election officer in the said Election Petition. That the joining and mis-joinder of parties is not regulated by the Code of Civil Procedure (hereinafter referred to as “the Code”) as the Representation of the People Act, 1951 (hereinafter referred to as “the RP Act”) is a self-contained Code. As per Section 82 of the Act, there is a provision as to who may be joined as party. No other person is required to be joined as party except candidates who contested the election. Learned Advocate for the Applicant has referred to and relied upon several judgments which will be discussed herein after.

Argument on behalf of Opponents:

4. Learned Advocate Mr. R.J. Goswami for Opponent No. 1 has argued that the present Election Application does not disclose the provision of law as to under which provision the Application is preferred. That if the provision of law is not mentioned, the Application is not tenable in the eye of law. It is further submitted that as per Section 87 of the Act, the Election Petition is regulated by the Code and there are certain provisions in the Code with regard to the fact that as to who may be joined as party. It is further submitted that initially the Notice was issued to Respondent No. 14 in the Election Petition (the Applicant herein). At the time of issuance of Notice, the Court has applied its mind and therefore it is not permissible under law to delete the present Applicant. He therefore requested to dismiss the Application.

5. Ms. Madhu Nirupaben Natvarlal - Opponent No. 16 herein, appearing as party-in-person has argued that there is no provision in the Act to file Application for deletion of party from the proceedings. She argued that the Applicant has not mentioned any provision of law under which the present application is filed. It is further argued that the Application is defective due to joining of party. That the present Application is signed by the learned Advocate for the Applicant and no signature is made by the Applicant i.e. the Election Officer. That the Application is affirmed by one Sandip J. Sagele (I.A.S.) Returning Officer - Banaskantha Parliamentary Constituency & Collector, Banaskantha in capacity of Collector and not as Election Officer. It is further argued that no court fee tickets are affixed on the Affidavit. That one rupee