SRI BUDHIA SWAIN AND ORS·.

A
v.
GOPIN A TH DEB AND ORS.

MAY 7, 1999

[A.P. MISRA AND R.C. LAHOTI, JJ.] B

Code of Civil Procedures, 1908 :

Section 151-Power to review or recall-By tribunal and court of its

earlier order-Held, could be exercised if such order suffered from the inherent C
lack of jurisdiction and such lack of jurisdiction was patent; there existed
fraud or collusion in obtaining the judgment; there had been a mistake of
court prejudicing a party or a judgement 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-But right to seek vacation of a judgement may D
be lost by waiver, estoppel or acquiescence.

Review or Recall, power of-In exercise ofpower conferred by a statute,

Collector allowed an application filed by respondent No. 1, a deity seated
in a village, for settlement of certain /ands-Appellants sought review of the
order of settlement on the ground that the public notice of the claim not E
served in the locrility as prescribed-Collector reviewed the order purportedly
under Section 151 CPC holding that the proclamation was not properly
done in accordance with /aw-Appellants did not plead 'non service of the
notice' but raised objection only with regard to 'the manner of service of
notice '-The appellant also did not plead before the Collector that the claim

-- was filed by respondent No. 1 within time or not-Act providing the power
to review only if there has been a clerical or mathematical mistake in the
course of any proceedings under the Act-In such circumstances, held there
F

was no occasion for the collector to consider these pleas-However, none of

these pleas could have been a ground for recalling the order which was
otherwise within the jurisdiction conferred on the Collector-Civil Procedure G
Code, 1908, Section 151-0rissa Estates Abolition Act, 1951, Section 6, 7
and 38A-Administrative Law.

Lack of jurisdiction and error in exercise of jurisdiction-Distinction

between-Former strikes at very root vitiating the proceedings rendering the
order passed therein a nullity whereas the latter does not vitiate the legality H
1189
 1190 SUPREME COURT REPORTS [1999] 2 S.C.R.

A a."ld validity of the proceedings and the orders passed therein unless set aside
in the manner known to law QY laying a challenge subject to the law of
limitation.

The respondent No. 1 a deity, seated in a village, filed an application

under Section 6 and 7 of the Orissa Estates Abolition Act,.1951 and the
B Collector passed an order of settlement in favour of respondent No. 1 setting
·certain lands. The appellants filed an application for review of the order of
settlement passed by the Collector on the only ground that the public notice
of the claim preferred by respondent No. 1 was not served in the locality as
prescribed. The Collector purported to exercise the power of review under
C Section 151 CPC having formed an opinion that the proclamation was not
properly done in accordance with law. The respondent filed an appeal before
the Additional District Magistrate (ADM), who formed an opinion that the
Collector was not expressly conferred with any power of review but the order
could be justified as the provisions of Section 8A(2) of the Act was not
followed by the Collector in the original order passed by it and remanded the
D matter for fresh disposal before the Collector. The ADM in his order also
noted two other contentions raised by the appellants, viz (i) the application ..,
for settlement by respondent No.I was not filed wit'1in the prescribed time,
and (ii) the application should have b'.len treated as an application for lease
and should not have treated as claim case. Respondent No.l, thereafter, filed .
E a petition under Article 226/227 of the High Court and the High Court
allowed the petition and set aside the orders of Collector and ADM on the
ground that the power of review as assumed by the Collector did not exist
and the Circumst_ances of the case did not warrant the exercise of power to
. recall, more so when the application seeking review/recall did not go beyond
alleging an irregularity or at the worst an illegality. Hence this appeal.
F
Dismissing the appeal, this Court

HELD : 1.1. The only provision for review in the Estates Abolition Act,
1951 is to be found in Section 38A whereunder a review may be sought for
within one year from the date of the decision or order but only on the ground
G that there has been a clerical or arithmetical mistake in the course of any
proceedings in the Act. (1193-G-H]

2. A tribunal or a court may recall an order earlier made by it if (i)

the proceedings ctdminating into an order suffer from the inherent lack of
jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud-or
H collusion in obtaining the judgment, (iii) there has been a mistake of the
 BUDHIA SWAIN v. GOPINATH DEB 1191
court prejudicing a party or (iv) a judgment was rendered in ignorance of A
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 re-opening the proceedings or vacating the
judgement was available to be pleaded in the original action but was not done
or where a proper remedy in some other proceedings such as by way of B
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.
[1194-G-H; 1195-A-B]

3.1. A distinction has to be drawn between lack of jurisdiction and

mere error in exercise of jurisdiction. The former strikes at the very root C
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 the 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. (1195-B-C]
D
Indian Bank v. Mis Satyam Fibres India Pvt. Ltd., [1996) 5 SCC 550; '
A.R. Antulay v. R.S. Nayak & Anr., AIR (1988) SC 1531 and Hira Lal Patni
v. Sri Kali Nath, AIR (1962) SC 199, relied on.

Corpus Juris Secundum (Vol. XLX), Chapter "Judgment-Opening

and Vacating " (paras 265 to 285 at pages 487-510, referred to. E
3.2. None of the two pleas, viz (i) the application for settlement by
respondent No. 1 was not filed within the prescribed time, and , (ii) the
application for lease should not have been treated as a claim case, were
raised by the appellants in their pleadings before the Collector. Therefore,
there was no occasion to consider those pleas. But none of these two pleas F
could have been a ground for recalling the order which WHS otherwise within
the jurisdiction conferred on the Collector. Though it is a disputed question
of fact as noted by the High Court, the application by respondent No. 1 was
filed within the prescribed time or not nevertheless, it is very clear that an
order made on an application filed beyond the time prescribed for filing the G
same may be an illegal order but is certainly not an order passed without
jurisdiction. [1196-D-E]
•
3.3. A suit for proceeding entertained and decided in spite of being
barred by limitation is not without jurisdiction at worst it can be a case of
illegality. So also whether an application by way of claim petition or an H
 1192 SUPREME COURT REPORTS [1999] 2 S.C.R.

A application for grant by way of lease, both were entertainable by the Collector
and it wa~ 'for h!m to decide which way he chose to deal with the application.
In any case, ·he had jurisdiction to deal with the application.
[1196-E; 1197-B-C]

lttyavira Mathai v. Varkey Varkey & Anr., AIR (1964) SC 907, relied
B on.
4. No case was made out before the Collector and the ADM for
recalling the order of settlement. The order does 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 passed by the Collector recalling
C his earlier order as the same was without jurisdiction. In passing the ~rder
of recall the 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. Hence
no fault can be found with the view taken by the High Court. [1197-C-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 955 of

D 1985.
From the Judgment and Order dated 6.10.82 of the Orissa High Court
in O.J.C. No 1372of1978.

P.N. Misra, R.M. Patnaik and Abhijit Sengupta for the Appellants.

E Vinoo Bhagat and (Raj Kumar Mehta) (NP) for the Respondents.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. The respondent no.1 is a deity seated at village

Bishwanathpur in the District of Puri. On an application filed by the respondent
no.I under Sections 6 and 7 of the Orissa Estates Abolition Act, 1951
F
(hereinafter 'the Act', for short), the Estate Abolition Collector-cum- Additional
Tashildar passed an order of settlement dated 2.4.1966 in favour of respondent
no.1 settling the lands covered by khata numbers 431 & 438 of village
Bishwanathpur. Rent schedule was issued pursuant to the order of settlement
and rent was realised from the respondent no. I from the date of settlement.
G There w~ no appeal preferred against the order dated 2.4.1966 and thus the
order of settlement achieved a finality.
.
On 24.7.74 the appellants, 12 in number, who are residents of village
Panibhandar, District Puri filed an application seeking review of the order of
settlement dated 2.4.66. The only ground for review raised in the application
H was that the public notice of the claim preferred by the respondent no. I was
 BUDHIA SWAIN v. GOPINATH DEB [R.C. LAHOTI, J.) 1193 ,
not served in the locality as prescribed. The O.E.A. Collector purported to A
exercise the power of review under Section "151 CPC" having fonned 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.
The respondent no. l preferred an appeal before the Additional District
Magistrate (Land Records) Puri, who fonned an opinion that the O.E.A.
Collector was not expressly conferred with any power of review but the order B
could be justified as one of recalling of an earlier order which had occasioned
failure of justice. If the mandatory provisions of Section SA (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 no. I was filed
some time in 1963, i.e. beyond the prescribed period of six months. The C
learned ADM also observed that the claim preferred by the respondent no. I
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 0.E.A. Collector-cum-Additional Tahsildar for disposal
afresh in the light of the observations made by him.
DI
The respondent no. 1 preferred a petition under Article 226/227 of the
Constitution before the High Court of Orissa. The petition has been allowed
and the orders of O.E.A. Collector and the ADM have both been set aside
by the High Court forming an opinion that the power to review as assumed
by O.E.A. 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 O.E.A. E
Collector which was one passed within the jurisdiction of the O.E.A. 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 sought for
review/recall, have filed this appeal by special leave impugning the order of F
the High Court.

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.
G
The only provision for review in the Act is to be found in Section 38A

- 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 38A. It was also H
 1194 SUPREME COURT REPORTS [1999) 2 S.C.R.

A conceded at the bar that the subsequent action of the O.E.A. Collector could
be sustained only if supportable by the power to recall.

What is a power to recall? Inherent power to recall its own order vesting
in tribunals or courts was noticed in Indian Bank v. Mis Satyam Fibres India
Pvt. Ltd, [1996] 5 SCC 550. Vide para 23, this Court has held that the courts
B have inherent power to recall and set aside an order (i) obtained by fraud
practised upon the Court, (ii) when the Court is misled by a party, or (iii) when
the Court itself commits a mistake which prejudices a party. In A.R. Antulay
-
v. R.S. Nayak & Anr. AIR (1988) SC 1531 (vide para 130), this Court has
noticed motions to set aside judgments being permitted where (i) a judgment
C 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, (ii) a judgment
was obtained by fraud, (iii) 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 f~ct. that there was no service~
D
In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment-
Opening and Vacating" (paras.265 to 284 at pages 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
E or which are specified in statutes authorising such actions. Invalidity of the
judgment of such 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 re.cord. Fraud or
collusion in obtaining a judgment is a sufficient ground for opening oi
vacating it. A judgment secured in violation of an agreement not to enter
judgment may be vacated on that ground. However, in general, a judgment
F 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
G or estoppel results.

In our opinion a tribunal or a court may recall an order earlier made by

it if (i) the proceedings culminating into an order suffer from the inherent lack
of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or
-
collusion in obtaining the judgme.1t, (iii) there has been a mistake of the court
H prejudicing a party or (iv) a judgment was rendered in ignorance of the fact
 BUDHIA SWAIN v. GOPINATH DEB [R.C. LAHOTI, J.] 1195

- 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 re-opening the proceedings or vacating the judgment
A

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 B
judgment may be lost by waiver, estoppel or acquiescence.

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 C
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 Lal Patni v. Sri Kali Nath,
AIR (1962) SC 199, it was held:-

" ....... The validity of a decree can be challenged in execution D

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

As already noted the appellants sought for review or recall of the order
from the O.E.A. Collector solely by alleging that the notice which was required F
to be published in the locality before settling the land in favour of the
respondent no. l 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 O.E.A. Collector and noted
that the notice was issued on 15.12.1963 inviting public objection. The notice G
was available on record but some of its pages were missing. The O.E.A.
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 H
 1196 SUPREME COURT REPORTS [1999) 2 S.C.R.

A 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 14.3.66."

The O.E.A. Collector was satisfied of the notice having been published.
Assuming that the notice was not published in the manner contemplated by
B 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.

The Appellate Authority, i.e., the ADM has in his order noted two other
contentions raised by the appellants, viz., (i) the application for settlement by
'
-~
C the respondent no. I 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.

None of the two pleas was raised by the appellants in their pleadings.
None of the two was urged before O.E.A. Collector. Therefore there was no
D 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 withi.'1 the jurisdiction conferred on the O.E.A. Collector. Though
it is a disputed question of fact, as noted by the High Court, that the
application by the respondent no.1 was filed within the prescribed time or not.
Nevertheless, we are very clear in our mind that an order made on an application
E filed beyond the time prescribed for filing the same may be an illegal order
but is certainly not an order passed without jurisdiction.

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 lttyavira Mathai v. Varkey Varkey & Anr., AIR (1964) Vol.15 SC 907 this
F Court has held:-

" ..... 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 time and yet the Court decreed it, the court would be
G
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
H wrong it would not be doing so.nething which it had no jurisdiction
 BUDHIA SWAIN v. GOPINATH DEB [R.C. LAHOTI, J.] 1197
to do. It had the jurisdiction over the subject-matter and it had the A
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 B
nullities ...."

So also whether an application by way of claim petition or an application for

grant by way of lease, both were entertainable by the O.E.A. 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. C
No case was made out before the O.E.A. 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 O.E.A.
Collector as the same was without jurisdiction. In passing the order dated D
2.2.1976 O.E.A. 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.

RK.S. Appeal dismissed. E

'{_