Supreme court: Non-Observance of Natural Justice: Prejudice in Itself

 57. Mr. Naphade would submit that the Appellant did not suffer any prejudice. We do not agree. Infringement of such a valuable right itself causes prejudice. In S.L. Kapoor v. Jagmohan   MANU/SC/0036/1980 : (1980) 4 SCC 379 this Court clearly held: (SCC p. 395, para 24)

24.... In our view the principles of natural justice know of no exclusionary Rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 656-657 of 2019.

Decided On: 11.04.2019

Atma Ram and Ors. Vs. State of Rajasthan .

Hon'ble Judges/Coram:

U.U. Lalit and Indu Malhotra, JJ.

Author: U.U. Lalit, J.

Citation: (2019) 20 SCC 481,2019 INSC 516,  MANU/SC/0526/2019.

Read full judgment here: Click here.

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Supreme court: When an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be a nullity

 In A.R. Antulay v. R.S. Nayak   MANU/SC/0002/1988 : (1988) 2 SCC 602 a seven-Judge Bench of this Court has also held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be a nullity. (See also State of Haryana v. State of Punjab   MANU/SC/0524/2004 : (2004) 12 SCC 673 and Rajasthan SRTC v. Zakir Hussain   MANU/SC/0496/2005 : (2005) 7 SCC 447. {Para 58}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 656-657 of 2019.

Decided On: 11.04.2019

Atma Ram and Ors. Vs. State of Rajasthan .

Hon'ble Judges/Coram:

U.U. Lalit and Indu Malhotra, JJ.

Author: U.U. Lalit, J.

Citation: (2019) 20 SCC 481,2019 INSC 516,  MANU/SC/0526/2019.

Read full judgment here: Click here.

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Kerala HC: Notice Issued Against Dead Person Is Invalid; Participation Of Legal Heirs In Proceedings Doesn't Make It Legal

 Upon hearing the rival submissions of the parties, we are of the view that the Appeal must succeed. The precedents referred above would make it amply clear that the notices issued under Sections 148A(b) and 148 of the Act in the name of a dead person are invalid and 'non-est' in the eye of law. It is a nullity and not a mere irregularity which could be cured. It is true that, on the receipt of the above said notices, the legal heirs of the deceased Naringaparambail Bhaskaran/appellants herein appeared before the assessing authority. However, that by itself would not change the situation. We are of the opinion that the consent of the parties cannot confer jurisdiction to the assessing authority for initiation of an action which is otherwise illegal and 'non-est'.{Para 20}

21. In the light of the above discussions, we cannot agree with the view taken by the learned Single Judge that the legal heirs of the deceased assessee are estopped from taking a different stand in the writ petition, since they have appeared before the assessing authority and participated in the proceedings. Therefore, we are of the view that the initiation of proceedings against a dead person under Sections 148A(b) and 148 of the Income Tax Act are illegal and 'non-est'.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2093 of 2023

Decided On: 29.11.2024

N. Binoj and Ors. Vs. Income Tax officer, Ward-2, Tirur and Ors.

Hon'ble Judges/Coram:

Dr. A.K. Jayasankaran Nambiar and K.V. Jayakumar, JJ.

Author: K.V. Jayakumar, J.

Citation: MANU/KE/4803/2024.

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Whether court can treat sale as nullity if auction purchaser fails to deposit value of stamp duty for drafting sale certificate along with purchase money?

 In Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mohamad and others, MANU/SC/0005/1954 : AIR 1954 SC 349, the Apex Court observed thus:

"Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase-money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired. No rights at all."

15. (a) In Uttamchand Milapchand v. Balkrishna Ramnath, MANU/MH/0053/1961 : AIR 1961 Bom. 224, referring to Manilal Mohanlal Shah and others case (supra), the Bombay High Court expressed the similar view holding thus:

In Para No. 4 xxx....... In view of these observations of the Supreme Court it is clear that the provisions of Order 21 Rule 85 as well as Rule 86 are mandatory in the sense that in the event of the auction purchaser failing to deposit the full purchase price within 15 days from the date of the auction sale the Court will have no option but to order a re-sale of the property. This necessarily implies that the Court has no jurisdiction whatever to extend the time for the payment of the balance of the purchase price as fixed under Order 21 Rule 85 of the Code. Either the purchaser pays the price within 15 days of the sale or he does not. If he pays, the sale would be complete; if he does not pay then, as pointed out by the Supreme Court in the aforesaid decision, there is no sale at all and all the proceedings in respect of the auction sale would be a nullity. Applying the ratio of that decision to the facts of this case, it is clear that as auction purchaser, who is the applicant in the present revision application, failed to pay the full purchase price within 15 days of the auction sale, there was no sale at all in his favour and, therefore, there was no question of any irregularity in such a sale being waived on account of the consent of the judgment-debtor to the time being extended in favour of the auction purchaser. Following upon the default in the payment of the purchase price as required under Order 21 Rule 85 the Court had straightaway to order re-sale of the property which the learned Judge in the Court below has done in this case. Accordingly, in my opinion, the order passed by the learned Judge ordering re-sale of the property is perfectly valid.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 6528 of 2018

Decided On: 18.03.2019

 G. Venkata Ramana Naidu Vs.  K. Venkataramana Reddy and Ors.

Hon'ble Judges/Coram:

U. Durga Prasad Rao, J.

Citation: AIR 2019 AP 21

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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Whether legal representative of deceased person can waive objection that decree is nullity?

It is true that a decree passed against a dead man is a nullity because it cannot be allowed to operate against his legal representatives when they were never brought on record to defend the case. As pointed out by the Supreme Court in the case of N. Jayaram Reddi (supra), while the law treaties such a decree as a nullity qua the legal representatives of the deceased defendant there is nothing to prevent them from deciding that they will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If the legal representatives adopt that alternative course of action, the Supreme Court proceeded, it cannot be possibly said that their option to be governed by the decree is against the law or any concept of public policy, or purpose or the public morality. It is, thus, a matter entirely at the discretion of the legal representatives of deceased party against whom a decree has been passed to decide whether they will raise the objection that the decree has become a nullity at the appropriate time during course of hearing or abandon all these technical objections and fight the litigation on merit. When no objection to that effect is raised and the case is fought on merit, according to the Apex Court, there is no scope to argue subsequently that the decree was a nullity.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 1102 of 2004

Decided On: 11.10.2004

Phool Chand Halwai  Vs. UCO Bank and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya, J.

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Whether obstructionist can take defence that decree which is to be executed is nullity?

 Prior to the amendment of 1976 it was open to an obstructionist like the respondents Nos. 5 and 6 to file a separate suit and contend that the decree under execution is a nullity and is not liable to be executed as against him. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure. Rule 101 provides as under:--

"All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions."

The bracketed portion of the above Rule would show that the question relating to right, title or interest in the property are some of the questions which are required to be determined in the execution proceedings. This is apparent from the words "all questions including". Hence, what follows after the said phrase is merely illustrative and not exhaustive. Hence, the question whether the decree under execution is a valid decree or a nullity would fall under phrase "all questions" arising between the parties to the proceeding of an application under Rule 97 and the said question would be required under the above rule to be decided by the executing Court. Hence, the provisions of rules 97 to 101 of Order 21, if properly construed cannot be held to mean that once a decree is put in execution, it can only be resisted by an obstructionist who has an independent right to possess. Such a construction would do violence to the term "Holder of a decree for possession". Such a phrase in my view, cannot include a holder of an invalid decree for possession. If this be so, the decree holder has to first establish that the decree which he has put in execution is a valid decree for possession. Consequently, it follows that it will be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he may be trying to establish his independent right to possession.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1491 of 1984

Decided On: 05.10.1990

Mani Nariman Daruwala Vs.  Phiroz M. Bhatena 

Hon'ble Judges/Coram:

A.C. Agarwal, J.

Citation: AIR 1991 Bom 328

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Whether objection to validity of decree can be raised in execution proceeding?

 Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan. MANU/SC/0116/1954 : [1955]1SCR117 and Hiralal Patni v. Kah Nath MANU/SC/0041/1961 : [1962]2SCR747 . It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil Court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing Court could declare it to be such and decline to execute it against the respondent.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2006 of 1968

Decided On: 24.02.1977

Sunder Dass Vs. Ram Prakash

Hon'ble Judges/Coram:

P.N. Bhagwati and S. Murtaza Fazal Ali, JJ.

Citation : AIR 1977 SC 1201

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Whether decree in favour of dead person is nullity?

So far as the general principles regarding the order passed against a dead person being void is concerned, the same is founded on the principle of natural justice, wherein, no person can be condemned unheard, however, as to whether the order passed in favour of a dead person would be void has been dealt with by this Court in Prahlad Singh v. The President District Consumer Disputes Redressal Forum & Ors. : S.B. Civil Writ Petition No. 1103/2005 decided on 25/4/2005, wherein, it was laid down as under:

"10. Secondly, the order in favour of a dead person cannot be said to be nullity and, therefore also I do not find any merit in submission of the learned counsel for the petitioner that the order of the State Government is nullity. It may be true that the order against a dead person may be nullity, but same principle is not applicable when the order is in favour of a dead person."

IN THE HIGH COURT OF RAJASTHAN (JODHPUR BENCH)

S.B. Civil Writ Petition No. 2756/2000

Decided On: 04.05.2017

Khairati Lal Vs.  State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Arun Bhansali, J.

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Whether decree against minor will be nullity if his guardian is not appointed by court?

Mr. Raghunathan drew my attention to Order 32, Rule 3 of the Code, which requires the Court to appoint a, proper person to be a guardian for the minor in a suit. Learned counsel pointed out that the mother in this case was not appointed by order of Court. I do not think this circumstance makes for any difference to my conclusion. Although the Court did not appoint the mother as guardian, it cannot be gainsaid that she is minor's legal guardian. It has been held that where the natural or legal guardian represents the minor a suit, the mere absence of a formal Court order appointing him or her as guardian ad litem will not vitiate the decree against the minor. See Rangammal v. Minor Appasami, MANU/TN/0227/1973 : AIR1973Mad12 . Raghavan J. in that case held that the decree passed against a minor in such a case is not a nullity.{PARA 7}

IN THE HIGH COURT OF MADRAS

Civil Revn. Petn. No. 1102 of 1977

Decided On: 18.03.1980

Saradamani Vs. Rajendran

Hon'ble Judges/Coram:

Balasubrahmanyan, J.

Citation:AIR 1981 Madras 217

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Whether suit brought against dead person is tenable?

If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit by whomsoever accepted is also a nullity. Similarly, any order made, in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person

Karnataka High Court

C. Muttu v. Bharath Match Works on 7 August, 1963

Equivalent citations: AIR 1964 Kant 293, AIR 1964 Mys 293

Bench: N S Rau, H H Gowda

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Whether decree can be set aside in execution proceeding for error of procedure?

At the outset, it must be borne in mind that the jurisdiction under Section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require reopening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them.

15. If any authority is needed for this purpose, then, a reference can usefully be made to a decision of the Supreme Court in the case of Dhurander Prasad Singh v. Jaiprakash reported in MANU/SC/0381/2001 : [2001]3SCR1129 . Therein, the Supreme Court observed that the powers of the Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. Exercise of powers under Section 7 of the Code is microscopic and lies in a very narrow inspection hole.

An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4965 of 2008

Decided On: 12.06.2009

 Smt. Savitribai A. Salvi

Vs.

 Smt. Suman Navgire and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

Citation: 2009 Bom Rent Cases 441

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Supreme court: Order obtained by practising fraud on Court is a nullity

 The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party.

Decree obtained by practising fraud on Court is a nullity --Person who bases his case on falsehood has no right to approach the Court--His case can be summarily thrown out at any stage of litigation.

Citation : AIR 1994 SC 853

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 994 of 1972

Decided On: 27.10.1993

 S.P. Chengalvaraya Naidu (dead) by L.Rs.

Vs.

Jagannath (dead) by L.Rs. and others

Hon'ble Judges/Coram: 

Kuldip Singh and P.B. Sawant, JJ.

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When court can refuse to execute decree?

 The position of law is well settled that ordinarily the executing Court is not entitled to go behind the decree and is not entitled to consider subsequent events to deny the decree-holder the right to execute the decree. But there are certain well recognised exceptions to this rule; one of them is that when the decree is a nullity or the decree-holder has lost the right to execute the decree on account of a subsequent change in law or some subsequent development then the executing Court can take note of change in the situation and can refuse to execute the decree on that basis.

Orissa High Court

Smt. Radhi Dei And Ors. vs Lalit Bihari Mohanty on 3 August, 1990

Equivalent citations: AIR 1991 Ori 36

Bench: D Mohapatra

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When court should not reject plaint at initial stage?

 Section 121 of the said Act may not present much
difficulty as the immunity from legal proceedings granted is in
respect of any act done in good faith, which would be a question of
fact in the context of the plaint allegations. Thus, the plaint
cannot be rejected at the threshold as against the defendant no.4,
placing reliance on Section 121 of the said Act. In so far as
Section 129 of the said Act is concerned, undoubtedly it attaches
finality to the order passed by the planning and development
authority under the Act and it is not open to be questioned in any
suit or other legal proceedings. In this regard, the learned Trial
Court has referred to a decision of the learned Single Judge of
this Court (A. S. Oka, J.) in the case of Laxman Barkya Wadkar
Vs. Mumbai Municipal Corporation (F.A.No.1635/2010). The
learned Trial Court has found that this Court after considering the
provisions of Sections 53 and 55 of the Maharashtra Regional and
Town Planning Act has held that although on a plain reading of
Section 149 of the M.R.T.P. Act, which contains a finality clause,
excludes the jurisdiction of the Civil Court, on further analysis,
based on the decision of the Hon'ble Apex Court in the case of
Dhulabhai Vs. State of M.P. and another, reported in AIR
1969, SC 78 and Kamla Mills Ltd. Vs. State of Bombay,
reported in 1966(1) SCR 64 has held that if there are allegations
made in the plaint that action under Section 53(1) or 55 of
M.R.T.P. Act is nullity, then provisions excluding jurisdiction of the
Civil Court, will not come in the way of entertaining the suit. It
does appear that the learned Trial Court, after considering the
decision and analogous provisions contained in Maharashtra
Regional and Town and Country Planning Act, 1966, has held that
the plaint cannot be rejected at the threshold, placing reliance onSection 149 of the Town and Country Planning Act. At the cost of
repetition, it may be stated that the case made out in the plaint is
that the defendant no.1 had no title to transfer the suit property to
the defendant no.2 and when the property is belonging to the
plaintiff Comunidade, the entire action was fraudulent. Here
again, it may be mentioned that the relief in so far as the
revocation of the construction licence or approved plan against the
defendant no.4 is concerned, would be consequential to the
declaration as sought in the prayer clause (a) of the plaint. Even
in the case of Maya Dessai (supra), this Court, after referring to
the decision in the case of Laxman Barkya Wadkar (supra), has
held that if the action is nullity, then bar to the jurisdiction of the
Civil Court will not come in the way. In the case of Maya Dessai
(supra), this Court, in view of the pleadings that the action is
vitiated by fraud and that the officers have acted in bad faith, had
held that the matter would be required to be considered on merits
and order dismissing the suit, merely relying on the bar, was set

aside.

IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL REVISION APPLICATION NOS.21 and 23 of 2015
CIVIL REVISION APPLICATION NO.21 of 2015

 M/s Boshan Developers Pvt. Ltd.,
V/s
 Communidade of Bordem,
CORAM :- C. V. BHADANG, J.
Pronounced on :- 16th September, 2015
Citation: AIR 2016(NOC)263 Bom

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Whether jurisdiction of civil court is barred if action of authority constituted under special Act is nullity?

 In the case of “Mafatlal Industries Vs. Union of
India” reported in 1997 (5) SCC 536, the concept of
jurisdictional error was considered by the Constitutional
Bench. K.S. Paripoornan, J. in his Judgment held that concept
of nullity may arise during the course or conclusion of the
inquiry. He observed as under:
“338. The scope of the exclusionary
clauses contained in the statutes has been
considered in great detail with reference to
the decisions of the superior courts in
England and also the decisions of the
Supreme Court of India by Justice
G.P. Singh (former Chief Justice,
M.P. High Court) in "Principles of
Statutory Interpretation", 6th edition
(1996) at page 475. The law is stated
thus:
“A review of the relevant
authorities on the point leads
to the following conclusions:
(1) An Exclusionary Clause
using the formula 'an order of
the tribunal under this Act
shall not be called in question
in any Court' is inefective
to prevent the calling in
question of an order of the
tribunal if the order is really
not an order under the Act but
a nullity.
(2) Cases of nullity may arise
when there is lack of
jurisdiction at the stage of
commencement of enquiry
e.g., when (a) authority is
assumed under an ultra
vires statute; (b) the
tribunal is not properly
constituted, or is disqualified
to act; (c) the subject-matter
or the parties are such over
which the tribunal has no
authority to inquire; and (d)
there is want of essential
preliminaries prescribed by the
law for commencement of
the inquiry.
(3) Cases of nullity may
also arise during the
course or at the conclusion of
the inquiry. These cases are
also cases of want of
jurisdiction if the word
'jurisdiction' is understood in a
wide sense. Some examples
of these cases are (a)
when the tribunal has
wrongly determined a
jurisdictional question of fact
or law; (b) when it has failed
to follow the fundamental
principles of judicial
procedure, e.g. has passed the
order without giving an
opportunity of hearing to the
party afected; (c) when it has
violated the fundamental
provisions of the Act, e.g.,
when it fails to take into
account matters which it is
required to take into account
or when it takes into account
extraneous and irrelevant
matters; (d) when it has acted
in bad faith; and (e) when it
grants a relief or makes an
order which it has no
authority to grant or make; as
also (f) when by
misapplication of the law it
has asked itself the wrong
question.”
With great respect to the learned author, I
would adopt the above statement of law,
as my own.”
13. A review of all these decisions is taken in the
decision of “Mr. Yogesh Megaji Gada Vs. The Municipal
Corporation of Greater Mumbai and another” in Writ Petition
no.2243 of 2013 and others in respect of bar contained in
Section 515-A of the Mumbai Municipal Act and the position
that the bar of jurisdiction will not apply in aforesaid
circumstances is restated. The jurisdiction has to be
determined on the basis of the plaint. It will have to be seen
whether the Appellant has based its case on the ground that
the action complained is a nullity, being taken in bad faith or

fraud .

IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 67 OF 2014
Maya Shrikant Sawant Dessai

V e r s u s
 The Chief Secretary

 CORAM: N. M. JAMDAR, J.
 DATE: 25 FEBRUARY, 2015.
Citation;2016(2) MHLJ 420 Bom,2016(1) ALLMR610

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Whether auction sale without notice to JD U/O 21 Rule 22 is nullity?

A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopal Iyer v. Ramachandra Iyer , the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47. 
ALLAHABAD HIGH COURT
Case :- CIVIL REVISION No. - 145 of 2009 

Revisionist :- Amit Kumar S/O Late V.P. Ram 
Opposite Party :- Prem Kumar Garg S/O Panna Lal Garg & Anr. 
CITATION;AIR 2015(NOC)885ALL
Hon'ble Anil Kumar,J. 

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Whether doctrine of Res judicata is applicable when there is fraud on court?

When the appointment is made de hors the rules, the same is a nullity. In such an eventuality, the statutory bar like doctrine of res judicata is not attracted. In the case of Meghmala & Ors. Vs. G. Narasimha Reddy & Ors.[1], this Court held as under:-

"From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."

Since respondent No.1 obtained appointment on the basis of bogus certificates, in our considered view, the principle of res judicata will not be attracted to the case on hand.

Supreme Court of India

Krishna Hare Gaur vs Vinod Kumar Tyagi And Ors on 11 February, 2015

Bench: V. Gopala Gowda, R. Banumathi

Citation;AIR 2015 SC1248

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Whether decree of dismissal against dead plaintiff appellant is nullity?

The first ground raised in the SLP is that the decree of dismissal against the dead plaintiff appellant is a nullity. We find no force in the contention. It is true that the plaintiff died on December 26, 1994 by which date the arguments in the appeal were already heard and the judgment was reserved. The counsel for the plaintiff filed a Memorandum bringing to the notice of the court the demise under Order 22 Rule 11-A of CPC and prayed for time to bring on record the petitioners as legal representatives to represent the estate of the deceased. The court declined to accede to the request.

Rule 6 of Order 22 provides that:

"No abatement by reason of death after hearing:-"Notwithstanding anything contained in the foregoing rules,whether the cause of action survives or not, there shall beno abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgement, but judgement may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgement. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgement and decree of the appellate court is a nullity is devoid of substance.

Supreme Court of India

N.P. Thirugnanam (D) By Lrs vs Dr. R. Jagan Mohan Rao & Ors on 12 July, 1995

Equivalent citations: 1996 AIR 116, 1995 SCC (5) 115

Bench: Ramaswamy, K.

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Whether order passed by a court without jurisdiction over subject matter of suit would be nullity?

The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others - AIR 1979 SC 193 & MD Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 8 SCC 619].

This aspect of the matter has recently been considered by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another [(2005) 7 SCC 791], in the following terms :

"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."1

Supreme Court of India

Hasham Abbas Sayyad vs Usman Abbas Sayyad & Ors on 12 December, 2006

Citation;2007(3) MhLj 56;(2007)2SCC355

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