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( 1999 ) 4 Supreme Court Cases 396 : 1999 SCC OnLine SC 545

.
( BEFORE A . P MISRA AND R . C. LAHOTI, JJ. )

BUDHIA SWAIN AND OTHERS . . Appellants;

Versus
GOPINATH DEB AND OTHERS .. Respondents .
Civil Appeal No . 955 of 1985-, decided on May 7, 1999
A . Civil Procedure Code, 1908 — — Inherent power of Court to S. 151
recall — Orissa Estates Abolition Act, 1951 ( 1 of 1952) — Ss. 8- A ( 2 ), 6 & 7
— Filing of claim and public notice — A tribunal or court may recall an order
earlier made by it if ( i ) the proceedings culminating in the order suffer from
inherent lack of jurisdiction which is patent; ( ii ) fraud or collusion have been
used to obtain the judgment; ( iii ) there has been a mistake by the court
prejudicing a party; or ( iv ) a judgment has been rendered in ignorance of
the

Page : 397

fact that a necessary party had not been served at all or had died and the estate
was not represented — Held, on facts, even if the notice regarding the claim of
Respondent 1 for settlement was not published in the manner contemplated by law,
it would be at best a case of irregularity in the proceedings, but not a fact striking at
the very jurisdiction of the authority passing the order — High Court rightly set
aside the review order of the Estates Abolition Collector and the appellate order of
the ADM (Land Records) upholding the same and remanding the matter for disposal
afresh — Tenancy and Land Laws — Orissa Estates Abolition Act, 1951 (1 of 1952),
Ss. 8 - A( 2 ), 6 & 7 — Claim for settlement and public notice

B . Civil Procedure Code, 1908 — S. 151 — Right to invoke inherent power

of court to recall — Right to seek vacation of a judgment may be lost by
waiver, estoppel, or acquiescence — When the ground for reopening the
proceedings or vacating the judgment was available to be pleaded in the
original action or where a proper remedy in some other proceeding such as
appeal was available but not availed of, the power to recall a judgment will
not be exercised
C. Jurisdiction — Lack of and mere error in — Distinction has to be drawn
between — Lack of jurisdiction strikes at the very root of the exercise and
may vitiate the proceedings themselves, rendering them as well as any
order passed therein a nullity — Mere error in the exercise of jurisdiction
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does not vitiate the legality and validity of the proceedings and the order
passed therein unless the order is set aside by a challenge in the prescribed
manner subject to the law of limitation — Constitution of India, Art. 226 —
Certiorari — Jurisdiction — Lack of or error in exercise of — Distinction —
Civil Procedure Code, 1908, S . 9 — Words and phrases — "Jurisdiction"
D. Tenancy and Land Laws — Orissa Estates Abolition Act, 1951 ( 1 of
1952) — S. 38- A — Review, power of under — Limited to correcting clerical
and / or arithmetical mistakes in the course of proceedings under the Act
An application was made on behalf of Respondent 1, a deity, under Sections 6
and 7 of the Orissa Estates Abolition Act, 1951 for an order of settlement, which
was granted by the Estates Abolition Collector on 2 -4 - 1966. Thus lands covered in
Khatas Nos. 431 and 438 of Village Bishwanathpur, District Puri were settled in
favour of the said deity . Rent schedule was also issued and rent recovered from
Respondent 1 from the date of settlement. No appeal was filed against the order of
settlement, which thus achieved finality .
On 24- 7 - 1974 applications for review of the order dated 2 - 4 -1966 were filed by
12 residents of Village Panibhandar, District Puri on the sole ground that public
notice of the claim filed by Respondent 1 was not served in their locality as
prescribed under Section 8 - A( 2 ).
The EA Collector assuming that he had wide powers of review found that the
proclamation was not properly made as the order - sheet did not disclose the
manner of the proclamation. Respondent 1 filed an appeal before the ADM (Land
Records) who held that even though the EA Collector did not have an express
power to review, his order was justified on the basis that it recalled an earlier order
which had occasioned a failure of justice; that if the mandatory provisions of
Section 8 - A( 2) of the Act were not followed, then the order dated 2 -4 - 1966 would
be rendered a nullity . The ADM also raised certain other issues arising in the case
and finally remanded the matter to the EA Collector for disposal afresh.
Respondent 1 approached the High Court under Articles 226/ 227. The High
Court found that the public notice was available on record, though a few of its
pages were missing . The petition of Respondent 1 was allowed and the order of the
EA

3 Page : 398

Collector as well as that of the ADM were set aside by the High Court, which held
that : (1) the EA Collector had no power of review under the Act; and ( 2 ) the
circumstances of the case did not warrant the exercise of power to recall an earlier
order passed by the EA Collector, which was one passed within jurisdiction. Such
was especially the case because the averments in the review or recall application
did not allege anything beyond irregularity or at worst illegality .

Dismissing the appeal the Supreme Court

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Held :
The appellants sought review or recall of the order from the OEA Collector solely
by alleging that the notice which was required to be published in the locality before
settling the land in favour of Respondent 1 was not served in accordance with the
manner prescribed by law . The appellants did not plead " non - service of the notice"
but raised objection only with regard to " the manner of service of the notice" The .
High Court had called for and perused the record of the OEA Collector and noted
that the notice was issued on 15 - 12- 1963 inviting public objection. The notice was
available on record but some of its pages were missing . The record showed that
the OEA Collector was satisfied with the notice having been published. Assuming
that the notice was not published in the manner contemplated by law, it will at best
be a case of irregularity in the proceedings but certainly not a fact striking at the
very jurisdiction of the authority passing the order.
( Paras 10 and 11)

Indian Bank v . Satyam Fibres (India ) ( P ) Ltd. , ( 1996 ) 5 SCC 550; A.R . Antulay v .
R.S. Nayak , ( 1988) 2 SCC 602 : 1988 SCC ( Cri ) 372 : AIR 1988 SC 1531, para
130, relied on

Corpus Juris Secundum, Vol . XIX, paras 265 - 284, pp . 487- 510, relied upon

A distinction has to be drawn between lack of jurisdiction and a mere error in

exercise of jurisdiction. The former strikes at the very root of the exercise and want
of jurisdiction may vitiate the proceedings rendering them and the orders passed
therein a nullity . A mere error in exercise of jurisdiction does not vitiate the legality
and validity of the proceedings and the order passed thereon unless set aside in the
manner known to law by laying a challenge subject to the law of limitation. The
power to recall a judgment will not be exercised when the ground for reopening the
proceedings or vacating the judgment was available to be pleaded in the original
action but was not done or where a proper remedy in some other proceeding such
as by way of appeal or revision was available but was not availed of. The right to
seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
( Paras 9 and 8)

Hira La ! Patni v . Kali Nath , AIR 1962 SC 199, relied upon

Suggested Case Finder Search Text { inter alia ) :

jurisdiction lack error*

[Ed. : See also (1997) 11 SCC 720; 1993 Supp (1) SCC 192; (1992) 1 SCC 534; (1981) 2 SCC
577; (1974 ) 3 SCC 415 ; AIR 1962 SC 1621

E. Limitation — Generally — Order on application filed beyond time — An

order made on an application filed beyond the time prescribed for filing the
same may be an illegal order but is not an order passed without jurisdiction
— Jurisdiction Order on application barred by limitation Not one
suffering from lack of jurisdiction
( Para 13 )
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Ittyavira Mathai v. Varkey Varkey , AIR 1964 SC 907, relied upon

F. Practice and Procedure New plea Considered Pleas that

respondent ' s application was barred by limitation and that the application
should have been treated as an application for lease not as a claim for
settlement case considered — Held, none of the two pleas could have been a
ground for

\3 Page : 399

recalling the order which was otherwise within the jurisdiction conferred on the
Collector

( Para 13 )
A - M/ 21090/ C
Advocates who appeared in this case :
P .N . Misra, R . M. Patnaik and Abhijit Sengupta, Advocates, for the
Appellants;
Vinoo Bhagat and Raj Kumar Mehta, Advocates, for the Respondents.

Chronological list of cases cited on page( s)

1. (1996) 5 SCC 550, Indian Bank v. Satyam Fibres

( India ) (P) Ltd . 400e

2. (1988) 2 SCC 602 : 1988 SCC (Cri) 372 : AIR 1988

SC 1531, para 130, A.R. Antulayv . R.S. Nayak 400 f

3. AIR 1964 SC 907, Ittyavira Mathai v. Varkey

Varkey 402 /7

4. AIR 1962 SC 199, Hira Lai Patni v . Kali Nath 401g

The Judgment of the Court was delivered by

R .C. LAHOTI, J. — Respondent 1 is a deity seated at Village
Bishwanathpur in the district of Puri. On an application filed by
Respondent 1 under Sections 6 and 7 of the Orissa Estates Abolition
Act, 1951 ( hereinafter "the Act" for short ), the Estate Abolition
Collector - cum - Additional Tahsildar passed an order of settlement dated
2 - 4 - 1966 in favour of Respondent 1 settling the lands covered by
Khatas Nos. 431 and 438 of Village Bishwanathpur . Rent schedule was
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issued pursuant to the order of settlement and rent was realised from
Respondent 1 from the date of settlement . There was no appeal
preferred against the order dated 2 - 4- 1966 and thus the order of
settlement achieved a finality .
2. On 24 - 7 - 1974 the appellants, 12 in number, who are residents of
Village Panibhandar, District Puri filed an application seeking review of
the order of settlement dated 2 - 4 - 1966. The only ground for review
raised in the application was that the public notice of the claim
preferred by Respondent 1 was not served in the locality as prescribed.
The OEA Collector purported to exercise the power of review under
Section "151 CPC" having formed an opinion that the proclamation was
not properly done in accordance with the law as the order - sheet of the
case did not disclose the manner of proclamation. Respondent 1
preferred an appeal before the Additional District Magistrate (Land
Records), Puri, who formed an opinion that the OEA Collector was not
expressly conferred with any power of review but the order could be
justified as one of recalling of an earlier order which had occasioned
failure of justice. If the mandatory provisions of Section 8 - A( 2) of the
Act were not followed then the order dated 2 - 4 - 1966 was rendered a
nullity. The learned ADM observed that the claim petition by
Respondent 1 was filed sometime in 1963, i. e., beyond the prescribed
period of six months. The learned ADM also observed that the claim
preferred by Respondent 1 should have been treated as a lease case
and not as a claim case. At the end, sustaining the setting aside of the
order dated 2 - 4 - 1966 the learned ADM remanded the case to the OEA
Collector - cum - Additional Tahsildar for disposal afresh in the light of the
observations made by him .

^ Page : 400

3. Respondent 1 preferred a petition under Articles 226/ 227 of the

Constitution before the High Court of Orissa . The petition has been
allowed and the orders of the OEA Collector and the ADM have both
been set aside by the High Court forming an opinion that the power to
review as assumed by the OEA Collector did not exist and the
circumstances of the case did not warrant the exercise of power to
recall an earlier order passed by the OEA Collector which was one
passed within the jurisdiction of the OEA Collector being set aside,
more so when the averments made in the application seeking
review / recall did not go beyond alleging an irregularity merely or at the
worst an illegality . The aggrieved appellants, the 12 villagers who had
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sought for review / recall, have filed this appeal by special leave
impugning the order of the High Court.
4. Having heard the learned counsel for the parties we are of the
opinion that no fault can be found with the order of the High Court and
the appeal therefore deserves to be dismissed .
5. The only provision for review in the Act is to be found in Section
38 - A whereunder a review may be sought for within one year from the
date of the decision or order but only on the ground that there has been
a clerical or arithmetical mistake in the course of any proceedings in the
Act . It was also conceded by the learned counsel for the appellants that
the proceedings initiated by the appellants were certainly not under
Section 38 - A. It was also conceded at the Bar that the subsequent
action of the OEA Collector could be sustained only if supportable by
the power to recall.
.
6 What is a power to recall ? Inherent power to recall its own order
vesting in tribunals or courts was noticed in Indian Bank v . Satyam
Fibres (India ) ( P ) Ltd.- Vide para 23, this Court has held that the courts
have inherent power to recall and set aside an order
( / ) obtained by fraud practised upon the court,
( /7) when the court is misled by a party, or
( /77) when the court itself commits a mistake which prejudices a
party.
In A . R . Antulay v . R . S. Nayak- ( vide para 130 ), this Court has noticed
motions to set aside judgments being permitted where
( /) a judgment was rendered in ignorance of the fact that a
necessary party had not been served at all and was shown as
served or in ignorance of the fact that a necessary party had died
and the estate was not represented,
( // ) a judgment was obtained by fraud,
( /77) a party has had no notice and a decree was made against him
and such party approaches the court for setting aside the decision
ex debito justitiae on proof of the fact that there was no service.

O Page : 401

7. In Corpus Juris Secundum ( Vol. XIX ) under the chapter

"Judgment — Opening and Vacating " ( paras 265 to 284, at pp . 487 -
510) the law on the subject has been stated. The grounds on which the
courts may open or vacate their judgments are generally matters which
render the judgment void or which are specified in statutes authorising
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such actions . Invalidity of the judgment of such a nature as to render it
void is a valid ground for vacating it at least if the invalidity is apparent
on the face of the record. Fraud or collusion in obtaining a judgment is
a sufficient ground for opening or vacating it. A judgment secured in
violation of an agreement not to enter a judgment may be vacated on
that ground . However, in general, a judgment will not be opened or
vacated on grounds which could have been pleaded in the original
action . A motion to vacate will not be entered when the proper remedy
is by some other proceedings, such as by appeal. The right to vacation
of a judgment may be lost by waiver or estoppel . Where a party injured
acquiesces in the rendition of the judgment or submits to it, waiver or
estoppel results.
.
8 In our opinion a tribunal or a court may recall an order earlier
made by it if
( /') the proceedings culminating into an order suffer from the
inherent lack of jurisdiction and such lack of jurisdiction is patent,
( // ) there exists fraud or collusion in obtaining the judgment,
( /77) there has been a mistake of the court prejudicing a party, or
( /V) a judgment was rendered in ignorance of the fact that a
necessary party had not been served at all or had died and the
estate was not represented.
The power to recall a judgment will not be exercised when the ground
for reopening the proceedings or vacating the judgment was available
to be pleaded in the original action but was not done or where a proper
remedy in some other proceeding such as by way of appeal or revision
was available but was not availed. The right to seek vacation of a
judgment may be lost by waiver, estoppel or acquiescence.
.
9 A distinction has to be drawn between lack of jurisdiction and a
mere error in exercise of jurisdiction. The former strikes at the very root
of the exercise and want of jurisdiction may vitiate the proceedings
rendering them and the orders passed therein a nullity . A mere error in
exercise of jurisdiction does not vitiate the legality and validity of the
proceedings and the order passed thereon unless set aside in the
manner known to law by laying a challenge subject to the law of
limitation . In Hira Lai Patni v . Kali Nath- it was held :
"The validity of a decree can be challenged in execution
proceedings only on the ground that the court which passed the
decree was lacking in inherent jurisdiction in the sense that it could
not have seisin of the case because the subject - matter was wholly
foreign to its jurisdiction or that the defendant was dead at the time
the suit had been instituted or decree

\ Page : 402
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passed, or some such other ground which could have the effect of
rendering the court entirely lacking in jurisdiction in respect of the
subject - matter of the suit or over the parties to it. "

10. As already noted the appellants sought for review or recall of the
order from the OEA Collector solely by alleging that the notice which
was required to be published in the locality before settling the land in
favour of Respondent 1 was not served in accordance with the manner
prescribed by law . The appellants did not plead "non - service of the
notice " but raised objection only with regard to "the manner of service
of the notice ". The High Court had called for and perused the record of
the OEA Collector and noted that the notice was issued on 15 - 12 - 1963
inviting public objection . The notice was available on record but some
of its pages were missing . The OEA Collector had noted in his order
dated 23 - 2 - 1966 as under :
"It is only due to missing of some pages of the proclamation
including the last page over which the report of the process- server
was there, a scope was available to the objectors to file this petition.
Under the above circumstances, it is not necessary to issue another
proclamation and entertain further objection since the case is being
heard and going to be finalised on 14 - 3 - 1966. "
11. The OEA Collector was satisfied with the notice having been
published. Assuming that the notice was not published in the manner
contemplated by law, it will at best be a case of irregularity in the
proceedings but certainly not a fact striking at the very jurisdiction of
the authority passing the order.
12. The appellate authority, i .e., the ADM has in his order noted two
other contentions raised by the appellants, viz.,
(1 ) the application for settlement by Respondent 1 was not filed
within the prescribed time, and
( 2 ) the application should have been treated as an application for
lease and should not have been treated as a claim case.
13. None of the two pleas was raised by the appellants in their
pleadings. None of the two was urged before the OEA Collector.
Therefore there was no occasion to consider those pleas. Still we may
make it clear that none of the two pleas could have been a ground for
recalling the order which was otherwise within the jurisdiction conferred
on the OEA Collector. Though it is a disputed question of fact, as noted
by the High Court, that the application by Respondent 1 was filed
within the prescribed time or not, nevertheless, we are very clear in our
mind that an order made on an application filed beyond the time
prescribed for filing the same may be an illegal order but is certainly
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not an order passed without jurisdiction.
14. A suit or proceeding entertained and decided in spite of being
barred by limitation is not without jurisdiction; at worst it can be a case
of illegality. In Ittyavira Mathai v . Varkey Varkey- this Court has held :

Page : 403

" Even assuming that the suit was barred by time, it is difficult to
appreciate the contention of learned counsel that the decree can be
treated as a nullity and ignored in subsequent litigation. If the suit
was barred by the time and yet the court decreed it, the court would
be committing an illegality and therefore the aggrieved party would
be entitled to have the decree set aside by preferring an appeal
against it . But it is well settled that a court having jurisdiction over
the subject - matter of the suit and over the parties thereto, though
bound to decide right may decide wrong; and that even though it
decided wrong it would not be doing something which it had no
jurisdiction to do . It had the jurisdiction over the subject- matter and
it had the jurisdiction over the party and, therefore, merely because
it made an error in deciding a vital issue in the suit, it cannot be said
that it had acted beyond its jurisdiction . As has often been said,
courts have jurisdiction to decide right or to decide wrong and even
though they decide wrong, the decrees rendered by them cannot be
treated as nullities."
So also whether an application by way of a claim petition or an
application for grant by way of lease, both were entertainable by the
OEA Collector and it was for him to decide which way he chose to deal
with the application. In any case, he had the jurisdiction to deal with
the application.
15. No case was made out before the OEA Collector and the ADM for
recalling the order of settlement dated 2 - 4- 1966. The order did not
suffer from lack of jurisdiction or from error of jurisdiction much less an
inherent one. The High Court has rightly set aside the order dated 2 - 2 -
1976 passed by the OEA Collector as the same was without jurisdiction .
In passing the order dated 2 - 2 - 1976 the OEA Collector had exercised a
jurisdiction which the law did not vest in him. The order could not have
been sustained by the ADM in appeal . No fault can be found with the
view taken by the High Court. The appeal is therefore dismissed though
without any order as to the costs .
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From the Judgment and Order dated 6 -10-1982 of the Orissa High Court in OJ C No 1372 .. .
of 1978

1
(1996 ) 5 SCC 550

2
(1988 ) 2 SCC 602 : 1988 SCC ( Cri) 372 : AIR 1988 SC 1531, para 130

3
AIR 1962 SC 199

4
AIR 1964 SC 907

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