What is the distinction between an illegal decree and a void decree? Can a void decree be challenged in collateral proceedings?

Question: What is the distinction between an illegal decree and a void decree? Can a void decree be challenged in collateral proceedings?

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Answer

A decree is passed by a court that had no jurisdiction to pass it, then such decree is called a nullity or void whereas a decree passed while overlooking some procedural requirements, can be termed as an illegal decree. A void decree cannot be executed whereas an illegal decree can be executed.

In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., 1970 AIR 1475, 1971 SCR (1) 66, the Court explained and brings out the distinction between the illegal decree and void decree. The Court stated-

Suffice it to say that recently a bench of two judges of this Court has considered the distinction between the null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, [2004] l SCC 287.

One of us (R.C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated:

“What is ‘void’ has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity.”

The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.

Two things must be clearly borne in mind:

Firstly, ‘the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be ‘a nullity’ and ‘void’ but these terms have no absolute sense: their meaning is relative, depending upon the court’s willingness to grant relief in any particular situation.

If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.’ (Administrative Law, Wade, and Forsyth, 8th Edn., 2000, p. 308).

Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. ‘The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.’ (ibid., p. 312)’

Now coming to the second part of the question, can a void decree be challenged in collateral proceedings?

The Supreme Court in the case of Balavant N. Viswamitra and others v. Yadav Sadashiv Mule (deceased by L.Rs.) and others[ AIR 2004 SC 4377] stated that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected to in execution or collateral proceedings.

“A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law.

A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree.

A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.”

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