1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 558 OF 2010 Sumanbai W/o Janardhan Kadam .... PETITIONER V E R S U S Pramilabai W/o Rangnath Gat .... RESPONDENT Mr. M.P.Kale , Advocate for appellant Mr. A.R.Nikam, Advocate for respondent. ............................ CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL ORDER : 1. This is defendants’ Second Appeal against the Judgment and Decree passed by the lower appellate Court. 2. The present respondent had filed Suit for specific performance of contract along with recovery of possession and injunction. The trial Court decreed the Suit for specific performance of contract and directed the present appellant to execute the sale deed in favour of plaintiff within the period of 3 months and that the plaintiff should pay remaining amount of 2 Rs. 48,800/-. The Court also along with the said decree, further passed order that in the alternate the defendant shall pay Rs. 10,000/- to the plaintiff within 3 months from the date of order. The said Judgment and Decree was challenged by the present appellant in Appeal. The appellate Court confirmed the Judgment and Decree of the trial Court holding that the plaintiff is entitled for decree of specific performance. As far as alternate part was concerned, the appellate Court set aside the said alternate part of the decree. 3. Mr. Kale, the learned counsel for the appellant contended that when the trial Court has already granted alternate remedy and the plaintiff has deposited the amount, in his appeal the Court could not have set aside the alternate part of the decree. He has further contended that the plaintiff did not step into witness box and his power of attorney has stepped into witness box, who is not the competent person. He has further contended that the plaintiff has not paid the court fees as is required and as such no decree could have been passed on account of the non payment of the court fees. In the Suit of specific performance, the court fees is not exempted. 4. Regarding non payment of the court fees, the said objection has not been taken by the appellants before both the Courts below. As per Section 99 of the Code of Civil Procedure, no decree shall be reversed nor shall any case be remanded in appeal on account of any mis-joinder, non joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merit of the case or the jurisdiction of the Court. In view of the same, the said objection can not be entertained in Second Appeal. 5. Regarding the next contention that the appellate court could 3 not have set aside the alternate part of the decree, the same is not sustainable in view of the fact that trial court has already passed decree for specific performance of contract. It was the mistake on the part of the trial court , who passed decree regarding alternate prayer. The appellate court in exercise of its power under Order XLI Rule 22 and 33 of the Code of Civil Procedure has ample power to correct the error of the Court. The contention that the power of attorney is not competent person to depose, is also unsustainable for the reason that the power of attorney can depose regarding the facts in his knowledge. 6. Both the Courts below concurrently held that the plaintiff is entitled for decree of specific performance. 7. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. 8. In view of dismissal of the Second Appeal, Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA, J. ] knp/ SA 558.2010