§ The distinction

A direct challenge is a proceeding whose object is to set aside or vary the decree: an appeal under Section 96 or 100, a review under Section 114, a revision under Section 115, an application under Order IX Rule 13, or a suit brought to set the decree aside.

A collateral challenge is an attack made in a proceeding brought for some other purpose, in which the decree happens to be relied on: an execution, a later suit where it is pleaded as res judicata or as the source of a title, or a proceeding before another forum.

Why the law is restrictive. If a decree could be questioned in any proceeding in which it was mentioned, the whole scheme of appeal, review and limitation would be pointless. A party could ignore his remedies and reopen the matter whenever the decree was set up against him.

§ Two situations, and the reason is the same in both

• The decree is a NULLITY for want of jurisdiction over the subject matter. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 holds that the invalidity of such a decree may be set up whenever and wherever it is sought to be enforced or relied upon, including at the stage of execution and in collateral proceedings.

• The decree was obtained by FRAUD ON THE COURT. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 holds that such a judgment or decree is a nullity and non est, to be treated as such by every court, and that it can be challenged in any court, at any stage, even in collateral proceedings.

• The reason both are permitted. In neither case is there a valid decree to set aside. A nullity is non est in the eyes of law, so there is nothing for the direct remedies to operate on, and nothing for limitation to perfect. A party is not required to attack directly something that in law does not exist.

The decree is wrong on the facts

The court had power to decide the facts; the remedy is an appeal, and an erroneous decree binds until set aside

The decree is wrong on the law

A court with jurisdiction has jurisdiction to decide rightly and to decide wrongly; the remedy is an appeal or, on narrow grounds, a review

There was a procedural irregularity

Section 99: no decree is reversed or substantially varied for an irregularity not affecting the merits or the jurisdiction

The suit was filed in the wrong district, or beyond the pecuniary limit

Section 21: the objection had to be taken in the court of first instance at the earliest opportunity, with a consequent failure of justice

The defendant was not served and the decree is ex parte

The decree is voidable, not void: it must be set aside under Order IX Rule 13 or challenged in appeal under Section 96(2)

A compromise was recorded that was not lawful

The proviso to Order XXIII Rule 3 provides the remedy, and Rule 3A bars a separate suit; the decree stands meanwhile

§ In execution: Section 47

The ordinary rule is that the executing court cannot go behind the decree. It takes the decree as it stands, and questions of the correctness of the adjudication are outside its function.

The recognised exception is a decree that is a nullity. The executing court may examine that question, because a decree that does not exist in law cannot be executed, and refusing execution is not going behind a valid decree.

The procedure. The objection is raised under Section 47, which requires all questions arising between the parties relating to the execution, discharge or satisfaction of the decree to be determined by the executing court and not by a separate suit.

§ Other places the question arises

• In a later suit where the decree is pleaded as res judicata. The answer that the earlier court had no jurisdiction defeats the plea, since Section 11 requires a court competent to try the subsequent suit.

• In a suit where title is traced to a decree, as where a purchaser relies on an execution sale. If the decree was a nullity, the sale under it conveys nothing.

• In a proceeding before another forum, where the decree is produced as establishing a right, and the other party sets up its invalidity.

• In an objection to delivery of possession under Order XXI Rules 97 to 101, where the question of the decree's validity may arise between the parties and the court adjudicates it.

§ Four points for an examination answer or a practice note

Identify the defect first. Is it want of jurisdiction over the subject matter, or fraud on the court? If neither, a collateral challenge is not available, however strong the complaint.

Do not confuse jurisdictional error with error within jurisdiction. The first goes to the authority to decide; the second is a wrong decision by a court that had authority.

Remember Section 21. A defect of place or value is not a want of jurisdiction for this purpose. It is curable and requires an early objection and a failure of justice.

Prefer the direct route where it exists. Even where a collateral challenge is technically available, an application to the court that passed the decree, or an appeal where one lies, is usually the cleaner course, and the collateral route is for the case where those are no longer open.