Orissa High Court
Abhaya @ Abhaya Charan Hota And vs Chandraprava Hota And Others on 4 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 773 OF 2014
Abhaya @ Abhaya Charan Hota and .... Petitioners
others
Mr. Lalit Kumar Maharana, Advocate
on behalf of Mr. Soumya Mishra, Advocate
-versus-
Chandraprava Hota and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 04.01.2023
4. 1. This matter is taken up through hybrid mode.
2. The Petitioners in this CMP seek to assail the order dated
14th 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.
3. 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 12th September, 1996 and
21st September, 1996 respectively without allotting any share in
favour of the Petitioners. Accordingly, the final decree was
drawn up on 24th 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 Schedule-
A 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.
4. Mr. Maharana, learned counsel submits that the non-
allotment 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 12th September, 1996 with the
following order:
"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."
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.
6. 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.
7. 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.
7. With the aforesaid observation, this CMP is disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
