IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.860 of 2008 Manturia Devi @ Mantutia Devi & ors. Versus Surti Singh ------------ For the Petitioners : M/S Pushkar Narain Shahi & Patanjali Rishi For the respondent: Mr. V.R.P. Singh 3 18-8-2011 Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the sole opposite party. This application has been filed against the order dated 14-2-2008 by which the petition under section 152 C.P.C. filed on behalf of the plaintiff, who was the appellant in Partition Appeal No. 12 of 2004/08 of 2006, has been allowed by the appellate court. The learned counsel appearing on behalf of the petitioners has submitted that initially the trial court in the suit for partition had only allowed 1/3rd share to the plaintiff in Schedule II property as mentioned in the plaint The plaintiff filed appeal against the said judgment and decree and by judgment and decree dated 3-1-2008 the appellate court had modified the judgment and decree under apppeal and granted share to the plaintiff in some more 2 properties and dismissed the appeal with the said modifications. It has been further submitted that after delivery of judgment on 3-1-2008 the petitioners applied for the certified copy of the judgment and decree, but the same were not given to them for a long time and ultimately on 5- 3-2008 the petitioner no.3 sent his complaint to Hon’ble Chief Justice, Patna High Court expressisng his apprehension regarding changes being made in the judgment by the appellate court. The judgment and decree of the appellate court could be received by the petitioners only on 15-3-08 which also contained the order dated 14-2- 2008 making alteration in the judgment by allowing share to the plaintiff in more properties in the purported exercise of power under section 152 C.P.C. The learned counsel has further submitted that a petition under section 152 C.P.C. was filed by the plaintiff-appellant before the appellate court below praying for amendment in the judgment and decree and the said petition was allowed without any notice or granting an opportunity of hearing to the petitioners, who were the respondents in that appeal and were contesting parties. It has been also submitted that in the garb of prayer under section 152 C.P.C. the plaintiff-appellant has sought 3 amendment substantially altering the original verdict of the appellate court and which according to the learned counsel, is not permissible under law. The learned counsel on behalf of the sole opposite party has appeared and has raised preliminary objection regarding the maintainability of this civil revision application in view of the proviso to section 115 C.P.C. Hehas further supported the impugned order. After hearing the learned counsel for the parties, and perusing the impugned order it appears that this civil revision application is maintainable. By passing the order as impugned in the revision application the right of the parties with regard to the properties, brought within the ambit of the judgment, has been finally determined. If the impugned order would have gone into the favour of the revision petitioner, the suit/appeal would have stood disposed of with regard to those properties sought to be included in the judgment and decree. Further, it is well-settled that the power under section 152 C.P.C. is confined only to correction of clerical or arithmetical error arsing therein from accidental slip or omission and the said power cannot be utilized for virtually substantially amending the original 4 judgment and allowing some additional relief not earlier allowed . Allowing share to the plaintiff in some more plots on the basis of his petition under section 152 C.P.C. is clearly an act of exercising jurisdiction in excess. Moreover, in any view of the matter, the court below ought to have issued notices upon the defendants, who were respondents before that court before allowing the prayer of the plaintiff- appellant made under section 152 C.P.C. and ought to have allowed opportunity of hearing to the defendants – respondents before passing any order. Clearly, the impugned order has been passed without notice or affording opportunity of hearing to the petitioner adjudicating the rights over the property brought in subsequently through the petition under section 152 C.P.C. In view of the aforesaid facts and circumstances, it is held that the learned court below has acted with illegality and material irregularity and has committed error of jurisdiction in passing the impugned order dated 14-2- 2008, which is, accordingly, set aside. This revision application is allowed. roy ( V. Nath, J.)