Tripura High Court
Subrata Bardhan vs Debabrata Bardhan on 2 August, 2025
Page 1 of 6
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.108 of 2024
Subrata Bardhan, son of late Subodh Chandra Bardhan, resident of Joynagar,
A.K. Road, P.O. Agartala, P.S. West Agartala, District- West Tripura.
...... Petitioner(s)
VERSUS
Debabrata Bardhan, son of late Subodh Chandra Bardhan, resident of
Joynagar, A.K. Road, P.O. Agartala, P.S. West Agartala, District- West
Tripura, Pin-799001.
...... Respondent(s)
For Petitioner(s) : Mr. Kundan Pandey, Advocate.
For Respondent(s) : Mr. Nitai Chowdhury, Advocate.
HON'BLE THE CHIEF JUSTICE MR. M.S. RAMACHANDRA RAO
JUDGMENT & ORDER (ORAL)
02/08/2025
Heard Mr. Kundan Pandey, counsel for the petitioner and Mr.
Nitai Chowdhury, counsel appearing for the respondent.
[2] This revision petition is filed by the petitioner challenging the
order dt. 16.08.2024 of the learned Civil Judge, Senior Division, Court No.2,
Agartala, West Tripura in Case No. Civil. Misc.(Review) 03 of 2022 and
also order dt. 07.05.2022 passed by the said Court in Civil Misc.(J) No.01 of
2021 in TS(P) No.84 of 2003.
[3] The respondent/plaintiff had initially filed TS(P) No.84 of 2003
before the Civil Judge, Senior Division, West Tripura, Agartala praying for
partition of the suit scheduled property. A preliminary decree was passed on
28.09.2005 declaring that the parties are entitled to partition of the land
described in Schedule-A of the plaint in equal share and subsequently a final
decree was also passed on 09.10.2007.
[4] The petitioner filed Title Appeal No.10 of 2009 challenging the
preliminary decree dt. 28.09.2005.
[5] On 18.10.2012, the Title Appeal No.10 of 2009 was dismissed.
[6] Petitioner then filed a Second Appeal in this Court being SAO
No.03 of 2013 against the order dated 18.10.2012 in Title Appeal No.10 of
2009.
[7] The said appeal was also dismissed on 04.06.2013.
[8] After a delay of more than 14 years from the date of passing the
final decree i.e. 09.10.2007, the respondent filed an application Civil
Misc.(J) No.01 of 2021 under Section 152 CPC for correction of alleged
mistake in the final decree and sought for setting aside of the said decree and
for appointment of a Survey Commissioner to survey the plots as per the
preliminary decree.
[9] By order dt. 07.05.2022, the Civil Judge, Senior Division, Court
No.2, West Tripura, Agartala allowed the said application under Section 152
CPC and set aside the final decree dated 09.10.2007.
[10] The petitioner then filed Civil Misc.(Review) No.03 of 2022
under Order XLVII CPC seeking review of the order dt. 07.05.2022 passed
in Civil Misc.(J) No.01 of 2021.
[11] The same was also dismissed on 16.08.2024.
[12] Assailing the same, this revision is filed.
[13] The principal contention of the counsel for the petitioner is that
the Court below could not have dismissed the review petition filed by him
because the order dt. 07.05.2022 passed by the said Court allowing the
application under Section 152 CPC was clearly erroneous. He contended that
under Section 152 CPC, only clerical or arithmetical mistakes or accidental
slip or omission could have been corrected, and under the guise of such
mistakes, there cannot be an interference with the original decree on merits.
He contended that Section 152 CPC cannot be invoked for claiming a
substantive relief which was not granted under the final decree and/or as a
pretext to modify the final decree which had attained finality. According to
him, there cannot be reconsideration of merits of the matter and an issue
requiring adjudication did not call for correction under Section 152 CPC and
was clearly beyond the scope of Section 152 CPC. He also asserted that the
final decree dt. 09.10.2007 was already upheld by the Additional District
Judge, Court No.3 in Title Appeal No.10 of 2009 and also by this Court in
SAO No.03 of 2013.
[14] Counsel for the respondent refuted the said contention and
supported the order passed by the Court below. He contended that the Trial
Court, in the order passed in the review petition filed by the petitioner, has
taken the view that the order dated 07.05.2022 was a reasoned order, passed
after hearing both the parties and relevant points had been discussed therein.
It also held that the order allowing Section 152 petition filed by the
respondent could have been appealed by the petitioner herein, and he ought
not to have filed the review petition. Certain decisions on the scope of
review under Order XLVII, Rule 1 were also referred to in the said order. He
contended that the Court below rightly held that even if the decision in Civil
Misc.(J) 01 of 2021 was not correct and was erroneous, it cannot be set aside
in exercise of power of review. He also justified its decision by stating that a
unique situation had arisen due to drawing of final decree without appointing
a Survey Commissioner and without actually partitioning the suit land by
metes and bounds, and the petitioner, who was defendant in the suit, cannot
be allowed to take advantage of that situation.
[15] I am unable to agree with the view taken by the Trial Court.
Section 152 of CPC states as under :
"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."
[16] A bare reading of Section 152 CPC makes it clear that the
power of the Court under the said provision is limited to rectification of
clerical and arithmetical errors arising from any accidental slip or omission.
[17] In case of Century Textiles Industries Limited versus Deepak
Jain and another reported in (2009) 5 SCC 634, the Supreme Court
considered the scope of Section 152 CPC and held that there cannot be
reconsideration of the merits of the matter, and the sole object of the
provision is based on the maxim actus curiae neminem gravabit i.e. an act of
court shall prejudice no man.
[18] In case of Bijay Kumar Saraogi versus State of Jharkhand
reported in (2005) 7 SCC 748, the Supreme Court also held that Section 152
CPC cannot be invoked for claiming a substantive relief which was not
granted under the decree, or as a pretext to get the order which had attained
finality reviewed.
[19] It may be that after passing of the preliminary decree, without
appointing a Survey Commissioner to make actual partition of the scheduled
land, the final decree came to be passed. But such an error in the final decree
dt. 09.10.2007 can only be corrected by filing a first appeal against the said
final decree or by filing a petition under Section 47 CPC for reviewing the
final decree on the ground that it was wrongly passed without appointing a
Survey Commissioner. 15 years after the final decree was passed, and
without availing the remedy of appeal under Section 96 CPC or filing a
review petition under Order XLVII CPC, it was not open to the respondent
to file a petition under Section 152 CPC and get the final decree corrected.
[20] In my view, it was not a mere arithmetical or clerical error
arising from any accidental slip or omission. Therefore, there was thus an
error apparent on the face of record in the order passed on 07.05.2022 by the
Civil Judge, Senior Division, Court No.2, Agartala, West Tripura allowing
the application under Section 152 CPC filed by the respondent. When the
review petition was filed i.e. Civil Misc.(Review) No.03 of 2022 by the
petitioner seeking review of the said order, the said Court ought to have
allowed the review petition and set aside the order dt. 07.05.2022 instead of
dismissing it on untenable grounds.
[21] Accordingly, the instant Civil Revision Petition is allowed. The
order dt. 16.08.2024 in Civil Misc.(Review) No.03 of 2022 passed by the
Civil Judge, Senior Division, Court No.2, West Tripura, Agartala is set
aside; the said review petition is allowed; the order dt. 07.05.2022 in Civil
Misc.(J) No.01 of 2021 connected with TS(P) No.84 of 2003 is set aside and
the said application is dismissed; and the original final decree passed on
09.10.2007 is restored. No costs.
[22] Pending application(s), if any, also stands disposed of.
(M.S. RAMACHANDRA RAO, CJ)
DIPESH DEB Digitally signed by DIPESH DEB
Date: 2025.08.04 19:53:53 +05'30'
