The power under Section 152 of the CPC allows for corrections of clerical mistakes, not substantive changes, emphasizing that omissions affecting case merits require appeals for rectification.

Judgment :

B.P. Routray, J.

1. Notice on Opposite Parties 3 to 19 is treated sufficient as per postal tracking report and office note.

2. Heard Mr. S.K. Padhy, learned counsel for the Petitioner and Mr. T. Meher, learned counsel for Opposite Parties 1 & 2.

3. Present CMP is directed against order dated 23^rd September, 2024 of learned Civil Judge (Senior Division), Sohela passed in C.S.F.D. No.47 of 2006 wherein the prayer of the Plaintiffs to correct the decree to the extent of allotting shares to the parties have been refused.

4. Present Petitioner is the Plaintiffs and he filed the aforesaid suit praying for partition in the year 2006. Said suit was decreed in his favour vide judgment and decree dated 27^th September, 2008 ex-parte against the defendants. Since the suit was decreed ex-parte no issues could be framed for decision and the ordering portion of the judgment reads as under:-

“The suit is preliminarily decreed against the defendants, but as regard to the facts and circumstances without any cost. The parties are directed to effect a partition among themselves having regard to the portions under possession of them and also in the possession of the bonafide purchasers; within two months hence. However, the aggrieved party can approach and enforce the partition through process of law.”

5. This ex-parte judgment and decree under Annexure-2 was never challenged by the Plaintiffs before any higher forum either for absence of determination of shares or for any other reason.

6. On the other hand, the defendants who were set ex parte, filed a petition under Order 9, Rule 13 C.P.C. before the trial court praying to set aside the same, which was rejected. Against said rejection order of the trial court to set aside the ex parte decree, the defendants preferred FAO No.382 of 2011 before this court. Said FAO was ultimately disposed of as withdrawn vide order dated 5^th October, 2024, as per submission of the parties. In other words, no final decision on the merits of the case was taken in the FAO but the same was permitted to be withdrawn by the defendants.

7. On 5^th September, 2024 the Plaintiffs filed a petition under Section 152 of the C.P.C. praying for correction of the decree in order to carve out the shares of all respective parties. The prayer of the petition dated 5^th September, 2024 filed by the Plaintiff is as follows:-

“Hence it is prayed that the court may be pleased to consider the petition and pass necessary order by using inherent power to rectify omission / accidental slip in the decree for the end of justice either they would highly be prejudiced.”

8. It needs to be mentioned that in the meantime the Plaintiffs have filed a petition under Order 20, Rule 18 dated 9^th November, 2023 before learned trial court praying to issue a direction allotting the shares to the parties and the said petition is still pending adjudication till date.

9. As per the impugned order, the learned trial court opined that such a petition filed for correction in the decree under Section 152 of C.P.C. is beyond the scope of the prayer made by the Plaintiffs since not carving out specific shares in the preliminary decree is neither an accidental slip nor omission due to any clerical or arithmetical mistake.

10. Mr. Padhy, learned counsel for the Petitioner submits that it is the error committed on the part of the trial court not determining the share of the parties in the preliminary decree in a suit for partition. Therefore the power of the court under Section 152 of the C.P.C. read with Section 151 and 153 is wide enough to incorporate the determined share of the parties in the de