Dismissed

Sakuntala Sahu v. Arakhita Sahu

Orissa HC12 Apr 2021CMP/22/2014

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application under Section 152 C.P.C. by a Civil Judge who dismissed a claim for correction of an ex parte decree omitting share determination. The High Court held the omission was an adjudication error, not clerical, and dismissed the petition.

What did the court decide?

The CMP seeking correction of the decree is dismissed. The interim order of 22.01.2014 is vacated.

Sakuntala Sahu Vs Arakhita Sahu — Partition | Orissa HC (2021)

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CMP No.22 of 2014

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12.04.2021 This matter is taken up through video conferencing mode.

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Heard Mr. Samir Kumar Mishra, learned counsel for the Petitioners.

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Office note discloses that the notice issued to the PLRs of the deceased Opposite Party No.1 has returned unserved due to absence of addressees as per the postal remarks.

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The Petitioners in this CMP seek to assail the order dated 19.11.2013 (Annexure-3) passed by learned Civil Judge (Senior Division), Berhampur in F.D.T.S. No.71 of 1988, whereby he rejected an application filed by the Plaintiffs-Petitioners under Section 152 C.P.C. for correction of the the judgment and decree in T.S. No 71 of 1988.

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Mr. Mishra, learned counsel for the Petitioners submits that the Petitioners had filed T.S. No. 71 of 1988 for partition of the suit property as well as for realization of the amount of Rs.25,000/-. The Defendants although received notice in the said suit and filed their written statement, but did not prefer to contest the same. As such, the suit was decreed ex parte against the Defendants with the following order:

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“The suit is decreed preliminarily ex parte against the defendants with costs. The scheduled properties are allotted to the plaintiffs and the defendants are entitled to value of their respective shares in the suit site. The defendant no. 1 is to deliver the vacant possession of the suit property and to pay Rs.25,000/to the plaintiffs towards the loan amount within three

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months hence to the plaintiffs. Parties are to effect the partition as directed within the period noted above, failing which on application of either party, the civil court commissioner will allot the scheduled properties in favour of the plaintiffs and fix the value of the defendants’ shares and for the plaintiffs to pay.”

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Mr. Mishra, learned counsel for the Petitioners further submits that although the suit was filed for partition as well as for realization of the amount and learned Civil Judge although accepted the case of the Plaintiffs-Petitioners, but inadvertently omitted to determine the shares of the parties in the suit property. The same being an inadvertent omission, which is a clerical one, an application under Section 152 C.P.C. was filed in the final decree proceeding for correction of such inadvertent error. Learned Civil Judge misconstruing the provisions of Section 152 C.P.C. dismissed the application holding that the prayer made by the Plaintiffs-Petitioners does not come within the purview of Section 152 C.P.C., as there is no discussion in the judgment in effecting partition of the suit property. Accordingly, he dismissed the petition vide order dated 19.11.2013 against which this CMP has been filed.

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Perused the impugned order as well as the copy of the ex parte judgment dated 28.02.1996 in T.S. 71 of 1988 produced by the Petitioners in Court today. On perusal of the impugned judgment, it appears that learned Civil Judge (Senior Division),

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Berhampur while adjudicating the matter appears to have committed illegality in not determining the share of the parties. In the facts and circumstances of the case omission to determine the share of the parties by learned Civil Judge cannot be said to be a clerical error or omission. Illegality committed in adjudication of a suit cannot be corrected by entertaining an application under Section 152 C.P.C. The Petitioners have a remedy under Section 96 of the Civil Procedure Code to assail the same.

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In view of the above, I find no infirmity in the impugned order by which the petition under Section 152 C.P.C. has been rejected. Accordingly, the CMP being devoid of any merit stands dismissed.

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Interim order dated 22.01.2014 passed in Misc. Case No.23 of 2014 stands vacated.

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Intimate the trial court forthwith.

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As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed vide Court’s Notice No. 4587 dated 25^th March, 2020.

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..………………………

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K.R. Mohapatra, J.

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bks

Sakuntala Sahu v. Arakhita Sahu

Case brief

What is this about?

What did the court decide?

Sakuntala Sahu v. Arakhita Sahu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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