Kunal Tiwary vs Arun Kumar Tiwary
2025 Latest Caselaw 4389 Jhar

Jharkhand High Court

Kunal Tiwary vs Arun Kumar Tiwary on 25 August, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                                        2025:JHHC:25233




IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       C.M. P. No. 1044 of 2022
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Kunal Tiwary, Aged about 42 years, S/o Late Binay Kumar Tiwary, Resident of Dani Path, At: Khunti, P.O., P.S. & District: Khunti.

..... .... Petitioner Versus

1. Arun Kumar Tiwary, Son of Late Devendra Kumar Tiwary, Resident of Dani Lodge, Daily Market, Main Road, P.O. & P.S.: Daily Market, District: Ranchi.

2. Madan Kumar Tiwari

3. Sachindra Kumar Tiwary, Sl. No. 2 & 3 are sons of Late Devendra Kumar Tiwary

4. Amarendra Kumar Tiwary

5. Jitendra Kumar Tiwary

6. Narendra Kumar Tiwary Sl. No. 4 to 6 are sons of Late Uday Kumar Tiwary. Sl. No. 2 to 6 are Residents of Dani Lodge, Daily Market, Main Road, P.O. & P.S.: Daily Market, District: Ranchi.

7. Sudha Pandey, Daughter of Late Uday Kumar Tiwary, Wife of Ravi Pandey, Resident of Village: Kasmar, P.O. & P.S.: Kasmar, District:

Hazaribag.

8. Anita Tiwary

9. Sarita Tiwary Sl. No. 8 & 9 are Daughters of Late Uday Kumar Tiwary

10.Chandrika Tiwary, Wife of Late Uday Kumar Tiwary Sl. No. 8 to 10 are residents of Dani Lodge, Daily Market, Main Road, P.O. & P.S.: Daily Market, District: Ranchi.

11. Ashok Kumar Tiwary

12. Anand Kumar Tiwary

13. Anil Kumar Tiwary Sl. No. 11 to 13 are sons of Late Rajendra Kumar Tiwary and residents of Sita Ram Sadan, Ratu Road, P.O.: Hehal, P.S.: Sukhdeo Nagar, District: Ranchi.

14. Sunil Kumar Tiwary

15. Sujeet Kumar Tiwary Sl. No. 14 & 15 sons of Late Suresh Kumar Tiwary

16. Smt. Sujata Tiwary, Daughter of Late Suresh Kumar Tiwary Sl. No. 14 to 16 residents of Rajendra Nagar, P.O. Hehal, P.S.: Sukhdeo Nagar, Ratu Road, District: Ranchi.

17. Nirmala Tiwary

18. Sanchita Tiwary

19. Madhu Tiwary

20. Natasha Tiwary Sl. No. 17 to 20 daughters of Late Sushil Kumar Tiwary and residents of Water Marks Homes, Boatman 701, Haralur Road, P.O., P.S. & District: Bangaluru (Karnataka).

21. Tapan Sen, Son of Late Dhirendra Nath Sen, Resident of Pearl Villa, Gulbahar Park, Lower Burdwan Compound, P.O. & PS.: Lalpur, District: Ranchi.

22. Deepak Kumar Tiwary 2025:JHHC:25233

23. Sandeep Kumar Tiwary Sl. No. 22 & 23 sons of Late Nand Kumar Tiwary

24. Geeta Upadhyay, Daughter of Late Nand Kumar Tiwary, Wife of Anant Kumar Upadhyay

25. Manju Tiwary

26. Mala Tiwary

27. Rita Tiwary

28. Sima Tiwary Sl. No. 25 to 28 Daughters of Late Nand Kumar Tiwary. Sl. No.22 to 28 residents of Dani Lodge, Daily Market, Main Road, P.O. & P.S.: Daily Market, District: Ranchi.

29. Uma Mishra, Daughter of Late Keshav Kumar Tiwary, Wife of Late Shyama Nand Mishra, Resident of 13/30, Bas Fatak, P.O., P.S. & District: Varanasi

30. Vivek Kumar Tiwary

31. Manish Kumar Tiwary

32. Amitabh Kumar Tiwary Sl. No.30 to 32 sons of Late Bimal Kumar Tiwary

33. Mosmat Pushpa Tiwary, Wife of Late Bimal Kumar Tiwary

34. Mosmat Leelawati Tiwary, Widow of Late Binay Kumar Tiwary

35. Vishal Kumar Tiwary, Son of Late Binay Kumar Tiwary

36. Mamta Tiwary, Daughter of Late Binay Kumar Tiwary. Sl. No. 30 to 36 residents of Dani Lodge, Daily Market, Main Road, P.O. & P.S.: Daily Market, District: Ranchi.

37. Pradeep Nath Tiwary

38. Manoj Nath Tiwary Sl. No. 37 & 38 sons of Late Indira Tiwary and residents of Kamla Kant Lane, Ratu Road, P.O. & P.S.: Sukhdeo Nagar, District: Ranchi.

39. Chhaya Pandey, Daughter of Late Indira Tiwary, Wife of Lalit Prasad Pandey, Resident of SAIL City, P.O. & P.S.: Jagarnathpur, District:

Ranchi.

40. Maya Pandey, Daughter of Late Indira Tiwary, Wife of Sanjay Pandey, Resident of Kankarbag, P.O., P.S. & District: Patna (Bihar).

... .... Opposite Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner          : Mr. Vishal Kr. Tiwary, Advocate
                              Md. Imran Beig, Advocate
For the Opp. parties        :
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Oral Order
18 / Dated : 25.08.2025

1. It is submitted by learned counsel appearing for the petitioner that earlier vide order dated 29.03.2023, notices by Dasti were issued on the opposite parties and the same has been served. A supplementary affidavit dated 05.03.2025 has been filed regarding service of Dasti on all the opposite parties.

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2. In this view of the matter, the notices are declared to be validly served on the opposite parties. Since none has appeared on behalf of the opposite parties, therefore, the matter is being heard ex-parte.

3. Petitioner is the plaintiff in the Original Partition Suit No.7 of 1992 and is aggrieved by the order passed on 02.12.2022 (Annexure-10) passed in Misc. Case No.01/2018 by which the petition of one Arun Kumar Tiwary (defendant No.6) for making amendment in the decree on the ground that defendant No.8 had died on 21.09.2021 during pendency of the Misc. Appeal No. 01 of 2018, but he was not substituted. This civil miscellaneous case was filed under Section 152 read with Section 153 of CPC for correction in the preliminary decree passed in the civil suit as well as in the judgment.

4. It is submitted by learned counsel for the petitioner/ plaintiff that Partition Suit was decreed vide judgment dated 12.07.2018 and the decree was drawn on 24.07.2018 by allowing the suit for partition with respect to 1/3rd share in Schedule- B and E properties.

5. Plaintiff/petitioner being aggrieved by the judgment as it was not decreed with respect to Schedule-C & D properties preferred First Appeal No.397 of 2018 now renumbered as Civil Appeal No.08 of 2020.

6. Argument for setting aside of the impugned order can be summed up as under:

a. Learned Trial Court completely misdirected itself to pass the impugned order during the pendency of the appeal when it had become functus officio. as there is a very limited scope for amendment of decree after passing the judgment i.e. under Sections 152 and 153 of the CPC. The conditions were not satisfied for making the amendment in the decree in the present case.

b. As a matter of fact, petition was filed by the defendant no.6 /respondent(s) under Sections 152 and 153 of the CPC for making amendment in the decree described in Schedule B and E properties and Schedule-I, after disposal of the suit. It was averred that there was a typographical error in the judgment to incorporate

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Schedule-I properties.

c. It was not the plaintiff who filed Miscellaneous Case No. 01/18 for making correction in the Schedule of the decree, rather it was one Arun Kumar Tiwari (defendant no. 6) who had filed the application for amendment in the decree, but the learned Trial Court erroneously recorded the case between the Deepak Kumar Tiwari & Ors. V. Ashok Kumar Tiwari & Ors.

d. Plaintiffs were shown to be applicant in the petition for amendment in the decree, consequently the error was reflected in the order dated 28.04.2022 and the applicant (Arun Kumar Tiwari) was asked to make necessary correction in the petition for amendment in the decree. On 02.01.2022, without filing any application/ petition for amendment, the oral prayer for amendment was allowed and the counsel appearing on behalf of the applicant/defendant no. 6 was directed to make necessary correction in the cause title of the application in Miscellaneous Case No. 01/2018.

e. Present petitioner/ plaintiff moved the Trial Court objecting the miscellaneous case inter alia on the grounds that the said petition was not maintainable under Order XXII Rule 10A of the CPC. Direction was given for issuance of notice to the other parties on 10.10.2018 in the suit after the miscellaneous application was filed, but the said order was not complied with.

f. Lastly, the proceeding has been contested on the ground that once the Appellate Court is in seisin with the matter, the decree cannot be amended in the light of Section 153A of the CPC.

7. The question of law raised is whether the preliminary decree is amenable to alteration by invoking Sections 152 and 153A of CPC, during pendency of the First Appeal against the preliminary decree.

8. The learned Trial Court could not have proceeded to open the miscellaneous case on the petition of one of the judgment debtors when the First Appeal was pending. In the present case, not only the miscellaneous case was initiated, but it was completely botched up, as the present petitioner/plaintiff was shown as the petitioner in the said

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miscellaneous case and not defendant no.6, who had moved the Trial Court for making the said amendment. This error in party position was corrected, but the error persisted, as all the plaintiffs have been made petitioners and defendant no.6, who is the petitioner in the said case, continued as opposite party.

9. Having considered the submissions advanced, the issue before this Court in the present civil miscellaneous petition is that can the Trial Court entertain any petition for amendment of the preliminary decree during pendency of the First Appeal.

10. The law is emphatic on this point as laid down by the Hon'ble Apex Court in (2022) 15 SCC 547 {B. Boraiah Vs. M. G. Thirthaprasad & Ors.}, wherein it has been held that where an application before the Trial Court for correction of such decree could be maintained only if the appeal was to be decided by the High Court under Rule 11 Order 41 of CPC. Where such an order is passed under Order XLI Rule 11 then the Trial Court has a jurisdiction to make such correction.

11. Here, since the matter was not even decided by the First Appellate Court, therefore, it was not open to the Trial Court to have entered into making correction in the preliminary decree which was under

challenged in appeal.

12. Under the circumstance, initiation of Miscellaneous Case No. 01 of 2018 is not sustainable and is, accordingly, set aside. This Civil Misc. Petition stands allowed. Pending, I.A. if any, stands disposed of.

(Gautam Kumar Choudhary, J.) Sandeep/AKT