O R D E R

The present Revision Civil Revision Petition has been filed to set aside the fair and decreetal order dated 26.10.2022 in E.P.No.18 of 2013 in O.S.No.311 of 2007 passed by the learned District Munsif, Kancheepuram and allow the present Revision Petition.

2. The brief facts of the case is as follows:-

The petitioner, who is the plaintiff has preferred O.S.No.311 of 2007 against the respondents / defendants to set aside the sale deed dated 10.07.2002 in document no.1918/2002 on the file of Sub Registrar, Walajabad and to direct the 2nd respondent / 2nd defendant to handover the vacant possession of the suit property to the petitioner / plaintiff. The said suit was decreed on 12.07.2012. Subsequently, E.P.No.18 of 2013 was filed by the petitioner and after a period of four years from the date of decree, appeal was filed filed by the 2nd respondent / 2nd defendant and the same was numbered as A.S.No.1 of 2017 and is pending. Further, the said E.P.No.18 of 2013 was dismissed on 26.10.2022, as against the same, the petitioner / plaintiff has come up with the present Revision. 3. The learned counsel for the petitioner would submit that the learned District Munsif, Kancheepuram ought to have considered that it is now a well settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, is not sufficient to take away the jurisdiction of a court, if it is otherwise vested in it in law.

4. Further, the learned cousel for the petitioner would contend that the learned Principal District Munsif ought to have considered the accepted legal principle that mere pendency of the appeal does not operate as stay on the decree appealed against nor on the proceedings in the court below, thereby pleaded to set aside the order passed by the court below.

5. Though notice was ordered through court and privately as early as on 09.12.2022 and private notice was served on respondents 1 and 2, there is no representation for the respondents either in person or through learned counsel.

6. Heard the learned counsel for the petitioner and perused the documents placed on record.

7. It is relevant to point out that the court below has dismissed the E.P.No.18 of 2013 on 26.10.2022 on two grounds, viz., (1) the petitioner quoted Order 21 Rule 11(A) and Section 151 of CPC instead of Order 21 Rule 34 and 35 CPC in the Execution Petition (2) Execution Petition is not maintainable on account of pendency of the appeal filed by the Judgment debtor in A.S.No.1 of 2017.

8. It is necessary to deal with the first ground at first instance, viz., 'quoting of wrong provision of Law'. This Court, in CRP No.1203 of 2001 dated 28.01.2002 reported in 2002(3) CTC 22 [Bhuvaneswari Vs.

R.Elumalai] at paragraph no.14 has held as follows:

“14.The time granted by the court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151 CPC and it need not necessarily be the one under Section 148 CPC. In fact, Section 151CPC is an omnibus provision available in the code to make suitable orders, which are necessary to meet the ends of justice and therefore, the application, which was filed under Section

151 CPC could have been allowed by the trial court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the trial court could have allowed the said petition in excusing the delay in representation of the plaint. But, however, the court had taken a rigi d view that the petitioner ought to have filed the petition either under section 148 CPC or under Section 149 CPC and dismissed the petition. The said view of the trial court is an erroneous one and liable to be set aside. In fact, in this case, the plaint itself has not been a