SRI BUDHIA SWAIN AND ORS. versus GOPINTH DEB AND ORS.

Citation: [1999] 2 S.C.R. 1189 · Decided: 07-05-1999 · Supreme Court of India · Bench: AJAY PRAKASH MISRA · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

--
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 of power 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 F 
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 
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 
F 
. 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. 
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 

Excerpt shown. Read the full judgment & AI analysis in Lexace.