The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.102 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Nityananda Naik …. Petitioner -versus- Prafulla Naik and Others … Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Saroj Kumar Padhy, Advocate. For Opp. Parties : Mr. Tikeram Meher, Advocate. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 24th September, 2025 B.P. Routray, J. 1. Notice on Opposite Parties 3 to 19 is treated sufficient as per postal tracking report and office note. 2. Heard Mr. S.K. Padhy, learned counsel for the Petitioner and Mr. T. Meher, learned counsel for Opposite Parties 1 & 2. CMP No.102 of 2025 Page 1 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 3. Present CMP is directed against order dated 23rd September, 2024 of learned Civil Judge (Senior Division), Sohela passed in
Facts
C.S.F.D. No.47 of 2006 wherein the prayer of the Plaintiffs to correct the decree to the extent of allotting shares to the parties have been refused. 4. Present Petitioner is the Plaintiffs and he filed the aforesaid suit praying for partition in the year 2006. Said suit was decreed in his favour vide judgment and decree dated 27th September, 2008 ex-parte against the defendants. Since the suit was decreed ex-parte no issues could be framed for decision and the ordering portion of the judgment reads as under:- “The suit is preliminarily decreed against the defendants, but as regard to the facts and circumstances without any cost. The parties are directed to effect a partition among themselves having regard to the portions under possession of them and also in the possession of the bonafide purchasers; within two months hence. However, the aggrieved party can approach and enforce the partition through process of law.” 5. This ex-parte judgment and decree under Annexure-2 was never challenged by the Plaintiffs before any higher forum either for absence of determination of shares or for any other reason. CMP No.102 of 2025 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 6. On the other hand, the defendants who were set ex parte, filed a petition under Order 9, Rule 13 C.P.C. before the trial court praying to set aside the same, which was rejected. Against said rejection order of the trial court to set aside the ex parte decree, the defendants preferred FAO No.382 of 2011 before this court. Said FAO was ultimately disposed of as withdrawn vide order dated 5th October, 2024, as per submission of the parties. In other words, no final decision on the merits of the case was taken in the FAO but the same was permitted to be withdrawn by the defendants. 7. On 5th September, 2024 the Plaintiffs filed a petition under Section 152 of the C.P.C. praying for correction of the decree in order to carve out the shares of all respective parties. The prayer of the petition dated 5th September, 2024 filed by the Plaintiff is as follows:- “Hence it is prayed that the court may be pleased to consider the petition and pass necessary order by using inherent power to rectify omission / accidental slip in the decree for the end of justice either they would highly be prejudiced.” 8. It needs to be mentioned that in the meantime the Plaintiffs have filed a petition under Order 20, Rule 18 dated 9th November, 2023 before learned trial court praying to issue a direction allotting the CMP No.102 of 2025 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 shares to the parties and the said petition is still pending adjudication till date. 9. As per the impugned order, the learned trial court opined that such a petition filed for correction in the decree under Section 152 of C.P.C. is beyond the scope of the prayer made by the Plaintiffs since not carving out specific shares in the preliminary decree is neither an accidental slip nor omission due to any clerical or arithmetical mistake.
Legal Reasoning
or order. Similar view was expressed by this Court in Dwaraka Das v. State of M.P. [(1999) 3 SCC 500] and Jayalakshmi Coelho v. Oswald Joseph Coelho [(2001) 4 SCC 181] . 13. The basis of the provision under Section 152 of the Code is founded on the maxim “actus curiae neminem gravabit” i.e. an act of court shall prejudice no man. The maxim “is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law”, said Cresswell, J. in Freeman v. Tranah [12 CB 406 : 138 ER 964] (ER p. 967). An unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa [AIR 1966 SC 1047 : (1966) 17 STC 360] it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court, liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms CMP No.102 of 2025 Page 7 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.” 15. In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Others, AIR 2003 Supreme Court 351, it is explained that in exercise of power under Section 152 of the C.P.C. the court can specify the extent and manner of reliefs the party is entitled to. The relevant observation of the Hon’ble Supreme Court is as follows:- “13. There is yet another infirmity. Ordinarily the decree should have been drawn up by the High Court itself. It has not been brought to the notice of this Court by the learned counsel for either parties if there are any rules framed by the High Court which countenance such a practice as directing the trial court to draw up a decree in conformity with the judgment of the High Court. 14. How to solve this riddle? In our opinion, the successful party has no other option but to have recourse to Section 152 CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables CMP No.102 of 2025 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 the court to vary its judgment so as to give effect to its meaning and intention. Power of the court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen, L.J. in Swire, Re, Mellor v. Swire [(1885) 30 Ch D 239 : 53 LT 205 (CA)] subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, L.J. observed that if the order of the court, though drawn up, did not express the order as intended to be made then “there is no such magic in passing and entering an order as to deprive the court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal.” 15. For the foregoing reasons the appeal is allowed. The order of the trial court drawing up the decree is set aside. The parties are allowed liberty of moving the High Court under Section 152 CPC seeking appropriate rectification in the judgment of the High Court so as to clearly specify the extent and manner of reliefs to which in the opinion of the High Court the successful party was found entitled consistently with the intention expressed in the judgment. The delay which would be occasioned has to be regretted but is unavoidable. Once the operative part of the judgment is rectified there would be no difficulty in drawing up a decree by the High Court itself in conformity with the operative part of the judgment. If the rules of the High Court so require, the ministerial act of drawing up of the decree may be left to be performed by the trial court.” CMP No.102 of 2025 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 16. In the given facts of the instant case admittedly the judgment dated 27th September, 2008 is an ex-parte judgment which has attained its finality as on date without being challenged in any higher forum by any of the parties. Perusal of the said judgment under Annexure-2 reveals that the trial court has entirely failed to discuss about the pleadings of the Plaintiffs in order to determine the share of the parties in the suit. No such discussion has been made in the judgment of the trial court with regard to entitlement of the parties despite the fact that the suit was for partition. The trial court has only opined that the suit having not been contested and set ex parte against the Defendants it is felt appropriate to direct for partition and directed to effect the partition having regard to the portions under possession of each party as well as any bona fide purchaser. Therefore in order to determine the share of the parties at present the court has to delve in to further with regard to claim and entitlement of the parties since the suit is for partition. It would be wrong to opine by this court at this stage without any challenge to the decree, anything on the finding or observation of the trial court made in the judgment dated 27th September, 2008. Nonetheless, as stated above, consideration of the prayer of the Plaintiffs at this stage to determine the share of the CMP No.102 of 2025 Page 10 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 parties in the name of correction of the decree or exercising its inherent power would thus be beyond the scope of the trial court in present circumstances. 17. The Plaintiffs without challenging the judgment and decree dated 27th September, 2008 of the trial court before any higher forum has moved in a wrong direction praying for correction of the decree incorporating the determination of shares of the parties at this stage. The same being found impermissible at this stage, in the opinion of this Court, no merit is seen to interfere with the impugned order of the trial court dated 23rd September, 2024. 18.
Arguments
10. Mr. Padhy, learned counsel for the Petitioner submits that it is the error committed on the part of the trial court not determining the share of the parties in the preliminary decree in a suit for partition. Therefore the power of the court under Section 152 of the C.P.C. read with Section 151 and 153 is wide enough to incorporate the determined share of the parties in the decree by way of amendment/correction. 11. Conversely, Mr. Meher, learned counsel for Opposite Parties 1 and 2 contends that the scope of the court to correct the decree is very limited and therefore considering the nature of the prayer of the Plaintiffs, who did not prefer any appeal against the preliminary CMP No.102 of 2025 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 decree, the same could not be brought within the scope of Section 152 of the C.P.C. for correction of preliminary decree. 12. In view of the narration of facts stated above it is admitted on the part of both parties that the preliminary decree dated 27th September, 2008 is an ex parte decree which does not speak the specific share determined in respect of the parties in a suit for partition. It is also true that neither party did prefer any appeal to higher forum against such preliminary decree and the challenge of defendants to set aside the same being an ex-parte decree has been resulted in withdrawal of the FAO. 13. The scope of correction of a decree in terms of the powers of the court under Section 152 read with Section 151 of the C.P.C. has been well settled by the Hon’ble Supreme Court in plethora of decisions. In State of Punjab v. Darshan Singh, (2004) 1 SCC 328, the Supreme has observed that perusal of Section 152 makes it clear that Section 152 CPC can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in the judgment. The section cannot be invoked for claiming a substantive relief which was not granted under the decree, or as a pretext to get the order which has attained finality. CMP No.102 of 2025 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 14. In State of Punjab v. Darshan Singh, (2004) 1 SCC 328, it has been held that; “12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very court or the tribunal cannot and, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the CMP No.102 of 2025 Page 6 of 11 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 29-Sep-2025 13:36:01 section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the Code even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree
Decision
In the result the CMP is dismissed. ( B.P. Routray) Judge M.K. Panda/P.A CMP No.102 of 2025 Page 11 of 11