RAJESHWAR RAI Vs. MEERA KUMARI

JUDGEMENT

(1.) Heard Mr. Partha Sarthy, learned counsel for the petitioner and Mr. P.N. Shahi, learned senior counsel appearing on behalf of respondent Nos. 1 to 3 and 38. The question which has been raised in the present application under Article 227 of the Constitution of India is as to whether a final decree, in any circumstance, be at variance with the judgement of the court in a partition suit, if an apparent clerical mistake is detected in the judgment in course of preparation of final decree by the court.

(2.) The petitioner was defendant No. 5 before the court below. Respondent 1st set claim to have purchased the share of Jogmaya @ Yogmaya Devi (original respondent No. 40, since deceased) during the pendency of partition suit and have, in that capacity, been impleaded as intervener defendants in the court below. In a Final Decree proceeding respondent 1st set file an application dated 19.8.2006 of carving out patti of lands purchased from the said Jogmaya which has been allowed by an order dated 28.2.200& in Final Decree No. 106/70 by learned Sub-Judge-I, Samastipur. The said order dated 28.2.2009 is under challenge in the present application under Article 227 of the Constitution of India on the ground that no share has been allotted to Jogmaya in the preliminary decree and no share can, therefore, be allotted in final decree proceeding as it will be at variance with the judgment.

(3.) The facts of the case are not in dispute.