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1987 DIGILAW 157 (ORI)

SAMBARU GOUDA v. MAKUNDA NADKANI ALIAS MUKA

1987-05-05

B.K.BEHERA, P.C.MISRA

body1987
JUDGMENT : B.K. Behera, J. - The Petitioners assail the order passed by Mr. D. Kar, Sessions Judge, Koraput at Jeypore confirming the order dated November 6, 1984, passed by the learned Executive Magistrate, Malkangiri setting aside the ex parte order dated September 28, 1984,. declaring the Petitioners to be in possession of the lands in dispute in a proceeding u/s 145 of the Code of Criminal Procedure (for short the ?Code?), as having been passed without jurisdiction 2. While it has been urged on behalf of the Petitioners that the learned Executive Magistrate and the revisional Court had no inherent power u/s 482 of the Code and could not otherwise recall or review a final order passed in a proceeding u/s 145 of the Code, ex parte though it might be and the learned sessions Judge completely went wrong in applying the Provisions of Order 9, Rule 13 of the CPC to a criminal proceeding, the learned Counsel for the opposite party No. 1 has supported the order as having been passed in the interests of justice. 3. It is not necessary to go into the facts of the case. The fact remains that one party had been found to be in possession of the lands in dispute by a final order passed by the learned Executive Magistrate. 4. Section 362 of the Code provides: Court not to alter judgment: Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. A clerical or arithmetical error is an order occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend upon its discovery on argument or disputation. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. See Master Construction Co. (P) Ltd. v. State of Orissa and Anr. 1966 S.C.D. 638, and Smt. Sooraj Devi v. Pyare Lal and Anr. AIR 1981 S.C. 735. 5. No case can be revived by reviewing the final judgment or order. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. See Master Construction Co. (P) Ltd. v. State of Orissa and Anr. 1966 S.C.D. 638, and Smt. Sooraj Devi v. Pyare Lal and Anr. AIR 1981 S.C. 735. 5. No case can be revived by reviewing the final judgment or order. In this connection, reference may be made to two decisions of this Court Ranka Sahu alias Rankanidhi Sahu and Another Vs. Pratap Chandra Das and Others, and Sashibhusan Tripathy and Another Vs. State of Orissa, . 6. The learned Executive Magistrate had no jurisdiction to set aside the final order declaring one party to be in possession of the lands in dispute. Unfortunate as it might seem, this illegal order was maintained by the Court of Session and the learned Sessions Judge even went to the length of applying the principle of setting aside an ex parte decree in a civil proceeding provided in Order 9, Rule 13 of the CPC which he could not have applied in a criminal proceeding. Neither the learned Executive Magistrate nor the learned Sessions Judge could exercise any inherent power to set aside a final order. Only the High Court can exercise inherent jurisdiction provided in Section 482 of the Code. 7. For the foregoing reasons, the impugned orders passed by the learned Executive Magistrate and the learned Sessions Judge must be and are hereby set aside. 8. Although the impugned orders have been found to be illegal, as the order dated September 28, 1984 declaring the Petitioner to be in possession of the lands in disputes has been passed without issuing notices and without affording an opportunity to the opposite parties who were opposing the Petitioners in the proceeding inspite of an order passed by the learned Executive Magistrate to issue notices to them this Court has put the learned Counsel for both the sides to notice for addressing this Court as to why the final order declaring the Petitioners to be? in possession of the disputed lands should not be set aside in exercise of the inherent jurisdiction of this Court u/s 482 of the Code and they have been heard on this question. 9. in possession of the disputed lands should not be set aside in exercise of the inherent jurisdiction of this Court u/s 482 of the Code and they have been heard on this question. 9. The order declaring one party to be in possession had been passed by the learned Executive Magistrate without issuing notices to the other party in spite of a specific order and without affording to that party a reasonable opportunity of being heard. As this flagrant violation of legal procedure has come to the notice of this Court, it would be just and reasonable in the interests of justice and to prevent an abuse of the process of the Court to set aside the order dated September 28, 1984, passed by the learned Executive Magistrate and that order is hereby quashed. The result would be that the proceeding u/s 145 of the Code would continue for being disposed of after hearing both the sides for which the proceeding is now pending on the Court of the learned Executive Magistrate. 10. The writ application is disposed of with the afore said directions made u/s 482 of the Code. There would be no order as to costs. P.C. Misra, J. 11. I agree.