Case Name : Sri Budhia Swain vs Gopinath Deb
Case Reference: (1999) 2 SCR 1189 :
Neutral Citation:
Case Number: 02
Court: Supreme Court
Bench: 02
Coram: Ajay Prakash Misra, RC Lahoti
Date: 07.05.1999
Explaining power to recall; (Page 1194-B) Vested in all courts/tribunals Power to recall (Page 1194-H) (1) Proceedings culminating in order suffering from inherent lack of jurisdiction; and such lack of jurisdiction is patent (2) Fraud or collusion in obtaining judgment (3) Mistake of court prejudicing party (4) Judgment rendered in ignorance of non-service of necessary party, or non representation of estate
Difference in lack of jurisdiction and error in exercise of jurisdiction (Page 1195-C) 1) Lack of jurisdiction strikes at root of exercise and can vitiate proceedings, rendering orders passed a nullity 2) Error in exercise of jurisdiction does not vitiate legality and validity of proceedings
– Refer also: Indian Bank vs Satyam Fibres India Pvt Ltd, (1996) 5 SCC 550 Para 23 Inherent power to recall and set-aside an order Obtained by fraud Court is misled Court commits mistake which prejudices a party AR Antulay vs RS Nayak (7JB - 1988), AIR (1988) SC 1531 Para 130 Inherent power to set aside judgments 1) Where judgment rendered in ignorance of the fact that a necessary party had not been served but was shown as served; or in ignorance of fact that necessary party had died and estate not represented 2) Judgment obtained by fraud 3) Party had no notice and decree against him; on proving that there was no service
Suit entertained and decided despite being barred by limitation is an illegality, and not a decree without jurisdiction and has to be set-aside; it would not be a nullity. (Page 1196-F)
Hira Lal Patni vs Sri Kali Nath, AIR (1962) SC 199 Ittyavira Mathai vs Varkey Varkey, AIR (1964) 15 SC 907 Decree passed, though suit is barred by time, would amount to an illegality and aggrieved party can have it set aside Court having jurisdiction over subject matter and parties, though deciding wrong, would not be doing something it had no jurisdiction to do; such decrees would not be a nullity.
See also: