What is the distinction between an illegal decree and a void decree? Can a void decree be challenged in collateral proceedings? [ D.J.S. 2007 ]

Illegal, incorrect or irregular decree and void decree, the distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. All irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings, Balvant N. Vishwamitra v. Yadav Sadashiv Mule, (2004) 8 SCC 706 (712-713).

Prem Singh And Others v. Birbal And Others

voidable documents. It provides for a discretionary relief. 16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for.... Yadav Sadashiv Mule this Court opined that a void decree can be challenged even in execution or a collateral proceeding holding: (SCC p. 712, para 9) “9. The main question which...arises for our consideration is whether the decree passed by the trial court can be said to be ‘null’ and ‘void’. In our opinion, the law on the point is well settled. The distinction between a decree...

Balvant N. Viswamitra And Others v. Yadav Sadashiv Mule (Dead) Through Lrs. And Others

which was allowed by the learned Single Judge holding the decree to be void ab initio. The said order is challenged by the appellants in the present appeal. On 27-9-1999, special leave petition was...by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect...without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order.

Shri Jaichandlal Ashok Kumar and Co. Pvt. Ltd. Vs. Nawab Yossuf and An ...

Court : Kolkata

it. in cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. (emphasis added) the expressions void decree and illegal, incorrect or irregular decree came up for consideration in balvant n. viswamitra & ors.versus yadav sadashiv mule & ors.reported at (2004) 8 scc706 the hon ble ..... supreme court after considering the earlier decisions, thus, summarized the law in paragraphs 9, 14 and 15 which read: 9. the main question which arises for our consideration is whether the decree passed ..... by the trial court can be said to be 'null and 'void'. in our opinion, the law on the point is well settled. the distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. ..... where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. a defect .

Distinction between a decree passed by a Court having no jurisdiction and a decree of a court which is illegal or not passed in accordance with law.

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., 1970 AIR 1475, 1971 SCR (1) 66, a decree for possession was passed by the Court of Small Causes which was confirmed in appeal as well as in revision. In execution proceedings, it was contented that the Small Causes Court had no jurisdiction to pass the decree and, hence, it was a nullity.

Rejecting the contention, this Court stated:

“a Court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. Suffice it to say that recently a bench of two-Judges of this Court has considered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, [2004] l SCC 287. One of us (R.C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated:

“What is ‘void’ has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.

Two things must be clearly borne in mind. Firstly, ‘the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a ‘a nullity’ and ‘void’ but these terms have not absolute sense: their meaning is relative, depending upon the court’s willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.’ (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. ‘The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction in punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.’ (ibid., p. 312) A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.”

In Rafique Bibi vs. Sayed Waluddin, (2004) 1 SCC 287.One of us (R. C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated:

“What is “void’ has to be clearly understood. A decree can be said to be without jurisdiction, and hence as nullity if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.

A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a peson aggrieved by such a decree is to have it set aside in a duly consituted legal proceedings or by a superior Court failing which he must obey the common of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.”

(Emphasis supplied)

Again, in Bhawarlal vs. Universal Heavy Mechanical Lifiting Enterprises, (1999) 1 SCC 558, this Court held that “even if the decree was passed beyond the period of limitation, it would be an error of law, or at the highest, a wrong decision which can be corrected in appellate proceedings and not by the executing Court which was bound by such decree”