Orissa High Court

Belamati Digal And Another vs Pravabati Nayak & Others .... Opposite on 8 August, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CMP No. 1308 of 2024

      (An Application under Article 227 of the Constitution of
      India)

      Belamati Digal and another        ......                Petitioners

                                  -Versus-

      Pravabati Nayak & Others       ....           Opposite
      Parties
      _____________________________________________

        For Petitioner    : Mr. A.K.Mishra, Advocate

         For Opp. Party : Mr. S.K.Mishra, Advocate

      ______________________________________________________

      CORAM:
           JUSTICE SASHIKANTA MISHRA

                           JUDGMENT

th 8 August 2025

SASHIKANTA MISHRA, J.

The petitioners are defendant Nos. 3 and 5 in C.S.

No. 29 of 2023 and Opposite Party Nos. 3 and 5 in CMA

No. 3 of 2024 in the Court of learned Civil Judge (Senior

Division), G.Udayagiri. Said suit was filed by Opposite

Party Nos. 1 to 6 (plaintiffs) while the Opposite Party No.

7 to 22 are proforma defendants. In the present

application, the petitioners seek to challenge order dated

09.08.2024 passed by the Court below in the

aforementioned CMA whereby, the name of the suit

schedule Mouza, as per the plaint schedule, was

corrected by the Court below after passing of the

judgment and decree exercising power under Section 152

of CPC.

2. The facts of the case, briefly stated, are that the suit

was filed by the plaintiffs seeking declaration of their

right, title and interest over the suit property, declaration

that the unregistered 'Will' dated 07.09.1981 is valid and

binding on all as per law, permanent injunction and

relief. The suit was decreed vide judgment dated

28.03.2024 and the corresponding decree was drawn out

by the Court on 08.04.2024. On 29.04.2024, the

plaintiffs filed the aforementioned CMA for correction of

the suit schedule Mouza in the judgment and decree as

per Section 152 of CPC, on the ground that the same was

mistakenly mentioned as Raikia instead of Piserama

which is a clerical mistake made by the advocate's clerk.

The present petitioner filed objection stating that the

plaintiffs should have sought for amendment of the plaint

schedule before adducing evidence in the suit whereby

the defendants would have had opportunity to file

additional written statement. Further, there is no

provision in law permitting amendment of the plaint after

passing of the judgment and decree.

3. The Court below, after hearing both sides allowed the

petition by holding that the defendants had admitted in

the written statement that the suit land is situated in

Mouza Piserama. The ROR marked Ext. 1 also mentions

the name of the Mouza as Piserama. On such basis, the

Court held that the plaintiff should not be deprived of the

fruits of the decree moreso, as defendant No.3 being

examined as witness admitted that the suit schedule

property is situate in Mouza Piserama. The petition for

correction was thus allowed by the impugned order.

4. Heard Mr. A.K.Mishra, learned counsel for the

petitioners and Mr. S.K.Mishra, learned counsel for the

Opposite Parties.

5. Mr. Mishra would argue that the provision under

Section 152 of CPC is meant for correction of arithmetic

and typographical errors committed by the Court but

cannot be invoked for correction of any mistake

committed by the parties in the pleadings. In the instant

case, the plaintiffs never sought amendment of the plaint

schedule before adducing evidence. Therefore, after

passing of the decree they cannot seek correction of the

decree without amending their plaint. Mr. Mishra, has

relied upon the following judgments of this Court in

support of his contentions:

(1) Netrananda Dalai -v- Ratnabati Nayak (Dead) and another, 2016 (II) ILR-CUT 372.

(2) Prakash Chandra Patra vrs. Parbati Patra and others 2022 II OLR 588.

Citing the above decisions, Mr. Mishra forcefully argues

that the Court below has completely misconstrued the

scope of the Section 152 of CPC by allowing the

application for correction of a mistake not committed by

Court but by the plaintiffs themselves.

6. Per contra, Mr. S.K.Mishra, would argue that the fact

that the suit property is situated in Mouza Piserama is

admitted by the defendants in their written statement.

Defendant No.3 being examined D.W.1 also admitted the

said fact. The ROR marked as Ext.1 mentions Mouza

Piserama. Since the decree was passed in respect of the

suit property which is situated in Mouza Piserama

mentioning the same as Raikia would amount to

depriving the plaintiffs of the fruits of the said decree.

The Court below, realizing the above has therefore, rightly

allowed the application for correction. As regards the

scope of Section 152 of the CPC. Mr. Mishra has relied

upon a judgment of the Supreme Court in the case of

Niyamat Ali Molla v. Sonargon Housing Co-operative

Society Ltd. and Ors., AIR 2008 SC 225 to submit that

the true meaning of Section 152 should not be given a

narrow construction, inasmuch as it gives power not only

to rectify any accidental slip or omission in a judgment,

decree or order but might include an accidental slip or

omission in the conduct of the parties themselves.

7. I have given my anxious consideration to the

contentions raised by the parties. The admitted facts are

that in the plaint filed by the plaintiffs the suit schedule

property was described as under;

" Schedule of the Suit Properties Name of R.T. Mouza Khata No. Plot Nos. Kissam Area in Hc.R Burdha Digal Raikia 62 260 Gharabari 0.5650 District:- Kandhamal (Odisha) East:- Land of Boida Nayak enjoyed by Suresh Nayak. West:- Land and house of Pitambara Digal North:- Main road South:- Houses of Manab Digal, Satyaban Didgal and Sudhir Digal"

[Emphasis Added]

In the written statement filed by the defendants, the following is mentioned under Paragraph No. 4.

"That, the Para No.6 of the plaint is also not true and correct. That, the suit scheduled land is the self acquired property of Burdha Digal and in his life time, Burdha Digal sold the suit scheduled land of Khata No. 62, mauza-Piserama, pot No. 260, Kisama Gharabari, Area Hc.0.565R in favour of Balamati Digal in presence of villagers namely Nikalas Digal, Nakula Digal, Bibhisana Pradhan and others as per the local tradition (Mati Teka) and from the date of purchase, Balamati Digal is in possession till today alongwith legal heirs namely Aparajita Digal, Praija Digal and Chandan Digal and Sujata Digal."

In the judgment passed by the Court below there is

reference to the averment made by the petitioners in

regard to the suit schedule land in paragraph 3 as

follows:

"3.XX XX XX The suit scheduled land is the self-acquired property of Burdha Digal and in his lifetime Burdha Digal sold the suit schedule land of Khata No.62, Plot No.260, Area H0.565R, Mouza:-Piserama, Kisama:-

Gharabari, in favour of the Defendant No.3 Balamati Digal in presence of villagers namely Nikalas Digal, Nakula Digal, Bibhisana Pradhan and others as per the local tradition (Mati Teka) and from the date of purchase the Defendant No.3 Balamati Digal is in possession till today along with legal heirs namely Aparajita Digal(Defendant No.5), Praijai Digal(Defendant No.7), Chandan Digal(Defendant No.6) and Sujata Digal(Defendant No.4). XX XX XX"

[Emphasis Added]

The Court below, under issue Nos. III, IV and V has taken

note of the evidence of P.W.1 regarding Khata No, Plot

No., area and Kisam of the suit schedule property. It is

nobody's case that the said property is situate in Mouza

Raikia and not Piserama. Thus, the position that the

disputed property situates in Mouza Piserama and not

Raikia was within the knowledge of both parties. As

already stated, the suit was decreed in part by granting

some of the reliefs claimed by the plaintiffs particularly

declaring their title over the suit schedule property and

that the 'Will' dated 07.09.1981 is valid. In other words,

the judgment and decree was passed in respect of the

property situate in Mouza Piserama and not Raikia. In

fact it is nobody's case that any such property

corresponding to the particulars mentioned in the

schedule actually situates in Mouza Raikia. Had the

decree been passed mentioning the suit property as being

situate in Mouza Raikia, it would tantamount to an un-

enforceable decree, which obviously cannot be

countenanced in law.

8. Reading of the impugned order reveals that the Court

below has taken note of the pleadings of the parties and

also the admission of D.W.1 that the property situates in

Mouza Piserama and thus was of the view that not

allowing the correction to the decree sought for by the

plaintiffs would amount to depriving them of the fruits of

the decree.

9. The question that now arises for consideration is,

whether the Court below had the power to do so. As

already stated, the application for correction was filed

under Section 152 of CPC. Section 152 reads as follows;

"Sec 152-Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

The provision has been subject to interpretation by

different Courts including this Court in the case of

Netrananda Dalai (supra). This Court, relying upon an

earlier judgment passed by this Court in the case of

Jayanta Kumar Rath (since dead) through L.Rs. -v-

Pravas Kumar Rath (since dead) through L.Rs.,

reported in 2016 (I) ILR-CUT 969, held the view that

Section 152 does not comprehend the correction of any

error on the part of the litigating parties and that the

error sought to be corrected must be of the Court. In the

case of Pratap Ch. Patra, (supra), a coordinate Bench of

this Court, also relying upon Netrananda Dalai and

J.K.Rath (supra) held as follows:

"On a plain reading of the provision, it is manifest that clerical or arithmetical mistake in the judgment and decree or orders or errors arising therein from any

accidental slip or omission may at any time be corrected by the Court either on its own motion or on an application made by any of the parties to the said suit of proceeding. In the case at hand, it is admitted by the Plaintiffs- Petitioners that the mistake was in the description of Schedule 'A' of the plaint. It is the case of the Petitioners that in view of such mistake in the schedule of the plaint, the mistake/error has crept in the judgment and decree."

The above judgments have been cited by the petitioners

to buttress their contention that the so-called error in

description of the property being that of the plaintiffs

themselves, the provision under Section 152 could not

have been invoked and exercised.

10. The above being the settled position of law, it would

now be apposite to refer to the judgment of the Supreme

Court in the case of Niyamat Ali Molla (supra) cited by

learned counsel for the Opposite Parties. In the said case,

the Supreme Court also interpreted the scope of Section

152 and held as follows:

"19.Code of Civil Procedure recognises the inherent power of the Court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the Code but also inherent power in general. The Courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the Court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should,

however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the Court is well recognized."

While there is no doubt as regards the power of the Court

to rectify its own mistake, the question is, can the aid of

Section 152 be taken to correct an error committed by

the parties themselves. Similar question arose before the

Calcutta High Court in the case of Bela Debi v. Bon

Behary Roy and other, reported in AIR 1952 CAL 86

referred to with approval in Niyamat Ali Molla (supra)

wherein, the following was held.

"21.The question came up for consideration before the Calcutta High Court in Bela Debi (supra), wherein it was held :-

"It will thus be seen that there is a diversity of judicial opinion as to how far a Court can go in rectifying its own decree. Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see In re St. Nazaire Co., (1879) 12 Ch. D. 88; Preston Banking Go. v. Allsop, (1895) 1 Ch. 141). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire, (1885) 30 Ch. D 239). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. According to one view, section 152 is confined to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and documents evidencing the transaction cannot be corrected (Ramchander Sarup v.

Mazhar Hussain, AIR (6) 1919 All 264). The second view is that under this section and section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar, AIR (21) 1934 Oudh 352 at p. 354; Ram Chandra v. Jamna Prosad, AIR (22) 1935 oudh 92). A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey/AIR (20) 1933 All 102; Jamini Bala Biswas v. Bank of Chettinad Ltd., AIR (22) 1935 Rang. 522 at p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded.I shall now state, what in my opinion, is the true meaning of section 152, Civil P. C. I am not in favour of giving a narrow construction to section 152. I do not agree that section 152 must necessarily refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's own accidental slip or omission, or that of its ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an 'accidental slip or omission'. A mistake made by the parties in a, deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an 'accidental slip or omission.' Where it is clear, that such is the case, then I do not see why the Court cannot set it right. In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle C. J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T. M. Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar, AIR

(35) 1948 Mad 13). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in abating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct the judgment, decree or order which has repeated the mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so. It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely limited. The power cannot be extended to the resolving of controversial points, and a decision as to what the parties intended or did not intent to do. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under Section 31, Specific Relief Act. xx xx xx"

[Emphasis Added]

11. Having noted the ratio decided in the cited cases, this

Court would once again refer to the facts of the case to

observe that the case is not one wherein there was any

doubt as regards the location of the suit property by

either of the parties. Notwithstanding the mistake in the

plaint schedule, the averments made in the plaint and

the written statement coupled with the admission of

D.W.1 in her evidence, makes the position clear. So, it is

not a case where correcting the Mouza would mislead

anyone much less the defendant. In other words, the

defendants cannot be said to be taken by the surprise.

Having admitted that the property situates in Mouza

Piserama in their written statement they cannot take the

plea that had a petition been filed by the plaintiffs for

amendment of the plaint, they would have had the

opportunity of filling an additional written statement.

Assuming such an application had been filed then, in

view of the specific pleading in their written statement

quoted above, admitting the location of the suit property

in Mouza Piserama, they obviously could not have taken

a different view. So, this is not a case where any

controversy exists as regards location of the suit land

necessitating further enquiry. It would be worthwhile at

this stage to also refer to the following observations made

by the Supreme Court in Niyamat Ali Molla (supra)

"26.It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in

a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order."

This Court has already held that if the decree in so far as

it relates to description of the suit property is left un-

corrected it would result it being unenforceable depriving

thereby the decree holder from the fruits thereof. As

such, the decree can be corrected even without amending

the plaint schedule.

12. This is also a case where the principle "actus curiae

neminem gravabit' i.e, 'the act of Court shall prejudice no

person' would fully apply. It must also be kept in mind

that apart from Section 152, the Court has inherent

power under Section 151 of CPC which permits it to

make such orders as may be necessary for the ends of

justice or to prevent abuse of the process of the Court

while exercising the power of the Court under Section

151 of CPC. In the case of K.K. Velusamy v. N.

Palanisamy, reported in (2011) 11 SCC 275, the

Supreme Court summarized its findings under paragraph

12 of the judgment as follows-

12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v. State of U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] , Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [AIR 1966 SC 1899] , Nain Singh v. Koonwarjee [(1970) 1 SCC 732] , Newabganj Sugar Mills Co. Ltd. v. Union of India [(1976) 1 SCC 120 :

AIR 1976 SC 1152] , Jaipur Mineral Development Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 :

AIR 1977 SC 1348] , National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."

13. True, on the face of an available provision, the

Section 151 cannot ordinarily be taken resort to and that

the power under Section 151 has to be with for

circumspection and care but then, if in a case like the

present one, where grave injustice would result by non-

exercise of such power, the Court should not shy away

from doing so. It is stated at the cost of repetition that it

would prevent the decree holder from getting its benefits,

thereby rendering it a paper decree. The Court below

must therefore, be deemed to have exercised its inherent

power under Section 151 of CPC along with Section 152

of CPC.