The court has the power to correct its own mistake under Section 152 of the CPC when the mistake is due to unintentional omission or mistake attributable to the court.

JUDGMENT :

Sanju Panda, J. - This is an application under Article 227 of the Constitution of India. Challenge has been made in this writ petition to the order dated 5.12.2006 passed by the learned Civil Judge (Senior Division), Bolangir in Final Decree Title Suit No. 45 of 1979 allowing the application of the opposite parties and directing the office to carry out the correction of the Schedule-B property from an area of Ac.12.31 decs. to Ac.58.99 decs. The said order was challenged by the Petitioners before the learned District Judge, Bolangir in Civil Revision Petition No. 10 of 2006 who by order dated 23.2.2007 dismissed the civil revision as not maintainable after the amendment of the CPC in the year 2002.

2. The facts, as narrated in the records, are as follows:

The Petitioners are Defendants in Final Decree Title Suit No. 45 of 1979 which was filed by one Dasa Seth in the court of Subordinate Judge, Bolangir (now Civil Judge (Senior Division). After his death, his legal heirs were substituted in the suit. The original plaint was filed for partition of Ac.12.31 decimals of land described in Schedule-B. The suit was decreed on 8.5.1991 and the decree was drawn up on 17.6.1991. It was sealed and signed on 20.6.1991. In the decree, the area of Schedule-B property was mentioned as Ac.12.31 decimals under Holding No. 64 of 1936. The same was challenged by the Defendant No. 1 Petitioner No. 1 in Title Appeal No. 41/23 of 1991/1992 which was dismissed and the decree was confirmed. Thereafter, final decree proceeding was initiated. While the final decree was in progress, the Plaintiffs filed a petition on 14.11.2006 u/s 152 of the CPC in the court of learned Civil Judge (Senior Division), Bolangir with a prayer to correct the Schedule-B lands from Ac.12.31 decs. to Ac.58.99 decimals. The Defendants 1 and 2 filed their objection on 22.11.2006 claiming rejection of the same on the ground that the petition was not maintainable since the said mistake was neither a clerical mistake nor an accidental omission. The learned Civil Judge allowed the aforesaid application on 5.12.2006 directing its Office to carry out the correction of Schedule-B property from an area of Ac.12.31 decs. to Ac.58.99 decs. Against the said order, Civil Revision Petition No. 10 of 2006 was filed before the learned District Judge, Bolangir who by order dated 23.2.2007 dismissed the same on the ground of maintainability as well as on merits holding that the lower court can correct the decree by invoking power u/s 152 of the Code of Civil Procedure. The learned District Judge further held that the mistake which had crept in was rather a mistake on the part of the court than any latches which could have been attributed to the party. The Plaintiff amended the plaint, filed the amended plaint in time, raised the valuation of the suit, and incorporated more area, i.e. Ac.58.91 decimals of land. Since the mistake which crept in was due to inadvertence on the part of the court, the court has to correct the decree when it was brought into its notice. As such, the learned Civil Judge did not commit any mistake in correcting the decree invoking power under Article 152 of the Code of Civil Procedure.

3. The Learned Counsel appearing for the Petitioners submitted that the Plaintiffs' suit was decreed in the year 1991 and in the appeal preferred against the same, the preliminary decree was confirmed and the said decree attained its finality. The lower court decree merged with the decree of the appellate court. Therefore, the mistake, if any, can be rectified only by the appellate court and not by the lower court because it was without jurisdiction and judicial decorum. However, even though the decree holders contested the decree in the appellate court, they did not file cross-objection under Order 41, Rule 22 of the CPC and the mistake as alleged by the Plaintiffs was allowed to continue even after the order of the lower appellate court. During final decree proceeding, the Amin re