Damodar Sahu vs Sudam Sahu And Others
2023 Latest Caselaw 638 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               CMP NO. 1362 OF 2022
                 Damodar Sahu                         ....   Petitioner
                                        Mr. Satyabadi Mantry, Advocate
                                       -versus-
                 Sudam Sahu and others                .... Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        19.01.2023

   1.       1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the order dated 24th September, 2022 (Annexure-4) passed by learned 2nd Additional District Judge, Balasore in RFA No.68/113 of 2013/2008 rejecting an application under Section 152 C.P.C. for correction of the judgment and decree dated 12th September, 2019 passed in the said RFA.

3. Mr. Mantry, learned counsel for the Petitioner submits that while adjudicating the aforesaid appeal, learned Appellate Court came to a categorical conclusion that the Plaintiff, Defendant No.1 and Defendant Nos.2 to 6 belong to three different branches of the joint family. Although the Plaintiff has been allotted with 1/3rd share in the suit property, but while passing the judgment, learned Appellate Court erroneously allotted the Defendant No.1-Respondent No.1 1/4th share and Defendant Nos. 2 to 4 were allotted 1/4th share in the suit property. It is his submission that there is a finding to the effect that there are three branches of the joint family and they are

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entitled to equal share. Thus, learned Appellate Court ought to have allotted 1/3rd share to each of the branches. Even on calculation of allotment of share made by learned Appellate Court, it does not cover the entire suit property. Taking into consideration the discussion made in the judgment, it is apparent that direction of the Court is an accidental slip and is an arithmetical error. Thus, an application under Section 152 C.P.C. was filed for correction of the same. But, learned Appellate Court upon hearing learned counsel for the parties held that direction made by learned trial Court cannot be treated to be an accidental slip or omission or typographical error. There is no material on record to come to a definite conclusion with regard to the stand taken by the Petitioner. He, therefore, submits that such findings are illegal and erroneous. Apparently, parties are Class-I heirs and each of the branches is entitled to 1/3rd share in the joint family property. Learned Appellate Court although held that the Plaintiff is entitled to 1/3rd share, but, so far as Defendants are concerned, the Court has erroneously recorded their share in the concluding part of the judgment. Hence, the impugned order under Annexure-4 is not sustainable and is liable to be set aside.

4. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that learned Appellate Court while adjudicating the matter has categorically held that the Plaintiff-Appellant is a Class-I heir of his successor Bhagaban Sahu. Hence, he is entitled to 1/3rd share in the suit land, which his father succeeded by way of inheritance after the intestate

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death of his grand-father, Bhima. Since there is no clear finding in the judgment of learned Appellate Court with regard to allotment of share to the other co-sharers,, the same cannot be corrected in a petition under Section 152 C.P.C., as it touches the merit of the judgment and decree. As such, learned Appellate Court has committed no error in rejecting such application.

5. In view of the above, this Court finds no merit in the CMP. Accordingly, the CMP stands dismissed.

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

                                         (K.R. Mohapatra)
bks                                           Judge