AZIZA IQBAL KHATUN Vs. MD.ANISUDDIN

JUDGEMENT

(1.) HEARD learned counsel for the parties on admission. This writ petition is disposed of at the admission stage. Order dated 25.09.2010 passed by the Additional Civil Judge (Senior Division), Balasore in I.A. No. 29 of 2010 (arising out of T.S. No.53 of 1976 -1 (F.D.) rejecting the petitioner's application under Sections 151 and 152 of the Code of Civil Procedure for correction of area of C.S. Plot No. 2644 in the final decree, has been challenged in this writ application.

(2.) THE undisputed facts are that in Title Suit No. 53 of 1976 preliminary decree for partition was passed and the total extent of land involved in the suit was described as Ac. 2l.95 dec. consisting of 7 plots including C.S. Plot No. 2644 comprising of an area of Ac. 4.48 dec. In the preliminary decree the petitioner -defendant No.1 got her due share. In the final decree proceeding, during the course of measurement of the suit property the Civil Court Commissioner found the actual area of C.S. Plot No. 2644 to be Ac. 4.86 and not Ac. 4.48 dec. Accordingly he prepared allotment sheet allotting Ac. 1.61 dec. out of C.S. Plot No. 2644 in favour of the petitioner. Neither party filed objection to the report of the Civil Court Commissioner, rather admitted the same and accordingly final decree was drawn up and thereafter execution cases were filed which are still pending. In the aforesaid background the petitioner filed an application under Sections 151 and 152 C.P.C. for correction of the final decree by reducing area of C.S. Plot No. 2644 from Ac. 4.86 dec. to Ac. 4.48 dec. Objections to the petition were filed by the present opposite party Nos. 3 to 5, who are the legal representatives of the deceased plaintiff, on the ground that neither any objection was raised to the report of the Commissioner nor any appeal has been filed against the final decree and that there being no accidental omission or arithmetical or clerical mistake with regard to area of plot No. 2644,it is not permissible to be corrected. The lower Court has rejected the petition by the impugned order.

(3.) THE learned counsel for the contesting opposite parties submits that there is no dispute that on measurement the Civil Court Commissioner found the area of C.S. Plot No. 2644 to be Ac. 4.86 and accordingly he prepared his report and submitted the same before the learned Court in the final decree proceeding and that neither party having raised any objection, the report was accepted and accordingly the final decree was drawn up which has reached finality inasmuch as no appeal has been filed there against. It is further submitted that the area of Plot No. 2644 reflected in the final decree is the actual area found by the Commissioner which was not known in the beginning. It was not an accidental error or clerical mistake' which the Court should correct in exercise of power under Section 152 of the Code of Civil Procedure.