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PETITIONER:

SRI BUDHIA SWAIN & ORS.

Vs.

RESPONDENT:

GOPINATH DEB & ORS.

DATE OF JUDGMENT: 07/05/1999

BENCH:

A.P.Misra, R.C.Lahoti

JUDGMENT:

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.1 under Sections 6 and 7 of the

Orissa Estates Abolition Act, 1951 (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.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.

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 was that the public notice of the claim

preferred by the respondent no.1 was not served in the

locality as prescribed. The O.E.A. 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. The

respondent no.1 preferred an appeal before the Additional

District Magistrate (Land Records) Puri, who formed an

opinion that the O.E.A. 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 8A (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.1 was

filed some time in 1963, i.e. beyond the prescribed period

of six months. The learned ADM also observed that the claim

preferred by the respondent no.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 O.E.A. Collector-cum-

Additional Tahsildar for disposal afresh in the light of the

observations made by him. The respondent no.1 preferred a

petition under Article 226/227 of the Constitution before

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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. 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 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.

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 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 Vs. M/s Satyam Fibres India Pvt.

Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held

that the courts 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 Vs. 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 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 fact that there

was no service. 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 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 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 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

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submits to it, waiver 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 judgment, (iii) there has been a mistake of

the court prejudicing a party or (iv) 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 re-opening 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. 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 Lal

Patni Vs. Sri Kali Nath AIR 1962 SC 199, 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 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." 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 to be published in the

locality before settling the land in favour of the

respondent no.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 O.E.A.

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 O.E.A. Collector had

noted in his order dated 23.2.1966 as under :-.lm20

"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 14.3.66."

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 law, it will at best

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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 the respondent no.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. 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 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 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 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 in can be a case of illegality. In Ittyavira

Mathai Vs. Varkey Varkey & Anr. - AIR 1964 (Vol.15) SC 907

this 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

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 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. 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

2.2.1976 O.E.A. Collector had exercised a jurisdiction

which the law did not vest in him. The order could not have

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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.