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2010 DIGILAW 171 (JHR)

Kundan Mahtha @ Kunda Mahtha @ Kundan Pasi v. Shiv Shankar Pasi

2010-02-01

D.G.R.PATNAIK

body2010
JUDGMENT 1. Heard counsel for the parties. 2. Petitioner is aggrieved by the order dated 6.4.2004 passed by the SubJudge-I, Deog har in Title Partition Suit No. 36 of 2000 whereby the petitioner's prayer filed under Order XLVII, Rule 1 C.P.C. read with Section 151 C.P.C. for a review of the earlier order dated 4.8.2003 passed by the court below under Order VI, Rule 17 C.P.C. has been rejected. 3. Learned counsel for the petitioner explains that though the Partition Suit was filed by the plaintiff/petitioner, but during the pendency of the suit, a compromise was effected between the parties and pursuant to the compromise, a compromise petition was also filed and a preliminary decree was accordingly passed by the court below in terms of the compromise on 10.3.2003. It was when, before the preparation of the final decree, the Area Amin had gone to visit the suit lands, that certain errors were detected inasmuch as in respect of the lands under Plot No. 141, as mentioned in Schedule1 of the plaint, -the total area has been mentioned as 0.20 acres instead of the actual 20 decimals. It was also detected that though in respect of the lands under Plot No. 338, there was no claim for partition yet, the same was mentioned in the schedule to the plaint. Likewise, the area of the land in Plot No. 131 has wrongly been mentioned as O.41 6. 1/2 acres instead of the actual area of O.33 acres. Learned counsel explains that the aforesaid errors had inadvertently cropped in the plaint of which the plaintiff/petitioner• could not take earlier notice. As such, the petitioner had filed a petition before the court below under Order 6, Rule 17 for allowing him to amend the plaint in order to correct the errors but the trial court, by its order dated 4.8.2003, has rejected the prayer. The petitioner thereafter filed his application under Order XLVII, Rule 1 C.P.C. for a review of the aforesaid order dated 4.8.2003, but the learned court below, by the impugned order, has rejected the prayer only on the ground that since the impugned order dated 4.8.2003 was passed by predecessor court therefore he has no authority to make any review of the same. 4. Learned counsel for the respondents acknowledges the aforesaid facts, as stated by the learned counsel for the petitioner. 5. 4. Learned counsel for the respondents acknowledges the aforesaid facts, as stated by the learned counsel for the petitioner. 5. From the perusal of the impugned order, it appears that the prayer for review, as filed by the petitioner under Order XLVII, Rule 1 C.P.C. has been rejected by the court below only on the ground that the order sought to be reviewed was passed by the predecessor court and therefore, it being the successor court, had no authority to review the earlier order. Such a view, is apparently not in consonance with the procedural law. The provisions of Order XLVII relate to reviews of orders against which no appeals are filed and such orders can be reviewed by the court which is in sessions of the proceedings. The provisions do not stipulate that the order passed by a predecessor court cannot be reviewed by the successor court before whom the proceedings are eventually transferred or a court which had succeeded the previous one. 6. Considering the aforesaid facts and circumstances, there being merit in this writ application, the order dated 6.4.2004 passed in Title Partition Suit No. 36 of 2000 is hereby set aside. The' learned court below shall reconsider the petitioner's prayer under Order XLVII, Rule 1 C.P.C. in the light of the submissions made by the parties and pass an appropriate order within one month from the date of this order. With these observations, this writ application is disposed of.