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2008 DIGILAW 261 (ORI)

Dinabandhu Mohanty v. Ramamani Pattnaik

2008-03-28

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — The petitioner filed a petition under Section 151 read with Section 152 of the Civil Procedure Code for correc¬tion of the judgment and decree which was registered as C.M.A. No.8/9 of 2003. The learned Ad hoc Addl. District Judge, Fast Track Court, Keonjhar dismissed the said application on 11.4.2006 which is impugned in this revision. The limited prayer of the petitioner in this civil revision is that a direction may be issued to the lower appellate Court to correct the ordering portion of the judgment and decree passed by it as there was a mistake in the ordering portion of the judgment. 2. The facts of the case in a nutshell are as under; Opposite party No.1 as plaintiff filed the suit for partition and the said suit was decreed by the learned trial Court against the defendants 1 and 2 with a direction that the plaintiff is entitled to 1/4th share in the suit land under Khata No.163. Being aggrieved by the said decree, defendant No.1 filed the appeal before the lower appellate Court. The said appeal was allowed by the lower appellate Court by modifying the decree passed by the trial Court. The lower appellate Court came to a finding that the property under Hal Khata No.463 was joint family property of Anata, Chandrasekhar, Radhu and Brundaban and after them, the said property devolved on Babaji, Kamali the mother of defendant No.5 and Jogendra. The said property was settled with them in O.E.A. Case No.443 of 1974-1975. In an amicable settle¬ment Babaji and Kamali were possessing half share and Jogendra half share in the said property. Babaji relinquished his share in favour of Kamali. Thus, the half share in Khata No.463 devolved on Kamali and another half share devolved on Jogendra and since Kamali died, her legal heirs are entitled to succeed her half share whereas Jogendra’s half share in the aforesaid property devolved on the plaintiff and defendant Nos.1 to 3 who are his wife and sons and daughter. 3. From the facts stated above, it is crystal clear that the lower appellate Court has given the findings in the appeal which is the final Court of facts and the same is binding on the parties. 3. From the facts stated above, it is crystal clear that the lower appellate Court has given the findings in the appeal which is the final Court of facts and the same is binding on the parties. But it appears that in the ordering portion, the learned appellate Court has held that the appeal was allowed in part with modification to the extent that Khata No.463 is liable to be partitioned and 1/4th share to be allowed to the plaintiff and defendant Nos.2 to 4 each. Half interest will be divided equally between Rama Chandra Mohanty the husband of Kamali and his son defendant No.5-Dinabandhu. Thus, each is entitled to ¼th share. 4. The learned counsel appearing for the petitioner sub¬mitted that the allotment of “¼th share to the plaintiff and defendant No.2 to 4 each”, is the typographical error in view of the aforesaid findings given by the appellate Court because the plaintiff along with the defendant No.2 to 4 each are entitled to ¼th share out of half of the property described in Khata No.463 and defendants No.5 and his father are entitled to half as suc¬cessors-in-interest of Kamali. 5. After verifying the record, it appears that the said submission of the learned counsel for the petitioner is correct and it was a typographical error. The lower appellate Court has also observed in the impugned order dated 11.4.2006 that the same was a mistake. Thus, this Court, considering the fact that mis¬takes has been crept in the ordering portion of the judgment of the lower appellate Court, remands the matter to the lower appel¬late Court to correct the said mistake and by that, the share allotted to the parties will not be changed or corrected. The Court below should not succumb to the technicalities while doing substantial justice. Thus, the revision is disposed of with the above direction. Revision disposed of.