Dismissed

Abhaya @Abhaya Ch.Ho v. Chandraprava Hota

Orissa HC4 Jan 2023CMP/773/2014

Case brief

AI extract

What is this about?

The court disposed of a civil revision petition challenging the rejection of an application under Section 152 C.P.C. The petitioner alleged that a final decree in a partition suit omitted their share. The court held that the application attempted to assail the merits of the decree rather than correct a clerical error, rendering it impermissible.

What did the court decide?

Granted urgent certified copy of the order on proper application.

Abhaya @Abhaya Ch.Ho Vs Chandraprava Hota — Partition | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 773 OF 2014

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Abhaya @ Abhaya Charan Hota and …. Petitioners others

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Mr. Lalit Kumar Maharana, Advocate on behalf of Mr. Soumya Mishra, Advocate

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-versus-

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Chandraprava Hota and others

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…. Opp. Parties

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

04.01.2023

This matter is taken up through hybrid mode.

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The Petitioners in this CMP seek to assail the order dated 14^th May, 2014 (Annexure-4) passed by learned Civil Judge (Junior Division), Boudh in F.D.T.S. No.07 of 1991, whereby an application filed by the Petitioners under Section 152 C.P.C. has been rejected.

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Mr. Maharana, learned counsel appearing on behalf of Mr. Mishra, learned counsel for the Petitioners submits that the Petitioners, who were the Defendant Nos.6 to 8 before learned trial Court were set ex parte in a suit for partition. Judgment and the preliminary decree was passed on 12^th September, 1996 and 21^st September, 1996 respectively without allotting any share in favour of the Petitioners. Accordingly, the final decree was drawn up on 24^th April, 2007. During final decree proceeding, the Civil Court Commissioner did not allot any share in favour of the Petitioners. Since the suit is for partition, the Civil Court Commissioner should have allotted a definite share in favour of

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the Petitioners. Accordingly, they filed an application under Section 152 C.P.C. stating inter alia that as per the decree, the Civil Court Commissioner only allotted half share from ScheduleA property to the Plaintiffs and rest half of the said Schedule-A property in favour of the Defendant Nos.1 to 4. But, no share in respect of the Schedule-B property was allotted in favour of the Petitioners, although they are entitled to the same.

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Mr. Maharana, learned counsel submits that the nonallotment of the share in the suit schedule property is formal defect in the preliminary decree. Hence, the Petitioners filed the aforesaid petition for correction of the preliminary decree accordingly. It is also stated in the petition that mistake in the final decree is a clerical one, which arose due to accidental slip and mistake. Learned trial Court without considering the same, rejected the petition holding that the relief claimed in the petition does not come under the purview of section 152 C.P.C. and rejected the same. It is his submission that, even if, no definite share is allotted in favour of the present Petitioner, but the final decree should have been passed carving out a definite share in favour of the Petitioners as per their entitlement. He, therefore, prays for setting aside the impugned order under Annexure-4 and directed learned trial Court to amend the final decree accordingly. 5. Considering the submission made by Mr. Maharana, learned counsel appearing on behalf of Mr. Mishra, learned counsel for the Petitioners, this Court finds that the judgment in T.S. No.7 of 1991 was passed on 12^th September, 1996 with the following order:

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“The suit of the plaintiffs is decreed on contest against defendant Nos.3 and 4 and ex parte against

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all other defendants with cost. The right, title and interest of the plaintiffs are declared over half share in schedule ‘A’ lands. Further a preliminary decree is passed for partition of the schedule ‘A’ lands as well as the ancestral lands described in schedule ‘B’ of the plaint. The plaintiffs being entitled to half share in both schedule ‘A’ and ‘B’ lands be allotted accordingly having regard to convenience of possession if any. The said plaintiffs are directed to make the decree final and take allotment of half share each on schedule ‘A’ and ‘B’ lands through Court. Pleader’s fee at contested scale.”

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It appears from the said order that no share has been allowed in favour of the present Petitioners, who were Defendant Nos.6 to 8 before learned trial Court. As such, the final decree was drawn up accordingly without allotment of any share in favour of the Petitioners.

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On perusal of the petition under Section 152 C.P.C., it appears that the Petitioners made an attempt to assail the merit of the preliminary decree as well as the final decree in the guise of filing the petition under Section 152 C.P.C, which is not permissible in law.

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In that view of the matter, this Court feels that learned trial Court has committed no error in rejecting the petition under Section 152 C.P.C.. However, the Petitioners, if so advised, avail remedy as may be available to them under law.

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With the aforesaid observation, this CMP is disposed of.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Abhaya @Abhaya Ch.Ho v. Chandraprava Hota

Case brief

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Abhaya @Abhaya Ch.Ho v. Chandraprava Hota

Case brief

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