Code of Civil Procedure, 1908 (CPC)
Nullity of a Decree under the CPC
A decree that is wrong and a decree that is a nullity are entirely different things, and confusing them is the commonest error on this topic. A wrong decree binds the parties until a court with power to set it aside does so. A nullity binds nobody: it may be disregarded whenever it is sought to be enforced, in execution and in collateral proceedings, and no consent and no lapse of time validates it. The single key that opens that door is want of jurisdiction over the subject matter. These notes cover what makes a decree a nullity, what does not, and what follows.
The decree, the one key that makes it a nullity, and the keys that do not fit
1. The Principle
📖 Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 The Supreme Court stated the fundamental principle. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity may be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. The Court then held that, by the express policy of Section 21, objections as to place of suing and pecuniary jurisdiction are entertained only where taken at the earliest opportunity in the court of first instance and where a consequent failure of justice is shown. No prejudice having been established, the decree stood. Rule: the leading authority. Want of jurisdiction makes a decree a nullity; but Section 21 confines the practical operation of that principle to defects of subject matter, place and value being curable on its terms. |
2. What Makes a Decree a Nullity
§ Want of jurisdiction over the subject matter The recurring instances: • The civil court's jurisdiction was barred by a special statute, expressly or by necessary implication, so that the matter was outside Section 9 altogether. • The matter belonged exclusively to a tribunal or authority created by statute, and the civil court had no competence to decide it. • The court had no jurisdiction over the person at all, as where the defendant was never served and never appeared, so that the proceeding was not against him in any real sense. • The decree was passed against a dead person, without the legal representative being brought on record, so that there was no party against whom it could operate. • The court was not competent to grant the relief it purported to grant, the power being vested elsewhere by statute. |
§ What does NOT make a decree a nullity An error of fact, however serious. The court had power to decide the facts, and the remedy is an appeal. An error of law, however clear. A court with jurisdiction has jurisdiction to decide rightly and to decide wrongly, and an erroneous decision within jurisdiction is not void. A procedural irregularity. Section 99 provides that no decree shall be reversed or substantially varied for an error, defect or irregularity not affecting the merits or the jurisdiction. A defect of territorial or pecuniary jurisdiction. Section 21 treats these as curable: the objection must be taken in the court of first instance at the earliest opportunity, and a consequent failure of justice must be shown. The absence of a proper party, in the ordinary case. Misjoinder and non-joinder are expressly dealt with by Order I Rule 9 and Section 99, and only the absence of a necessary party in the strict sense defeats the suit. |
3. What Follows Once a Decree Is a Nullity
Consequence | Explanation |
|---|---|
It binds nobody | The decree is non est in the eyes of law, and is to be treated as such by every court, superior or inferior |
It need not be set aside first | Since it is a nullity, its invalidity may be asserted without first obtaining an order setting it aside |
It may be challenged at any time | No period of limitation protects it, because there is nothing valid for time to perfect |
It may be challenged in any court | Including a court other than the one that passed it, and including a subordinate court |
It may be challenged collaterally | In a proceeding whose object is something else, such as an execution or a later suit |
It may be resisted in execution | Section 47 forbids the executing court from going behind the decree, but a nullity is the recognised exception |
Consent cannot cure it | Jurisdiction over the subject matter is conferred by law, and parties cannot supply what the legislature has withheld |
It founds no res judicata | Section 11 requires a court competent to try the subsequent suit, and a decision without jurisdiction does not bind |
4. How the Question Arises in Practice
i. In execution. The judgment-debtor objects under Section 47 that the decree is a nullity. The executing court, which cannot ordinarily go behind the decree, may examine this one question, and refuse execution if the objection is made out.
ii. In a later suit. The decree is pleaded as res judicata, and the answer is that the earlier court had no jurisdiction, so the decision does not bind under Section 11.
iii. In an appeal. The want of jurisdiction is taken as a ground, and by Section 99 it is expressly outside the errors that do not justify reversal.
iv. In an application to recall. Where the decree was passed against a person who was never before the court, an application under Section 151 is the usual route.
v. In a separate suit. Where the invalidity requires evidence to establish, a suit for a declaration that the decree is a nullity may be brought, though it is rarely necessary where the point can be taken in execution.
5. Landmark Points
- Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. A decree without jurisdiction is a nullity; the invalidity may be set up whenever and wherever it is sought to be enforced, including in execution and collaterally, and consent cannot cure it.
- The key is want of jurisdiction over the subject matter, not an error of fact or law within jurisdiction.
- Section 21. Objections as to place of suing and pecuniary jurisdiction require an early objection and a consequent failure of justice, so such defects do not render a decree void.
- Section 99. An irregularity not affecting the merits or the jurisdiction does not justify reversal.
- Section 47. The executing court cannot go behind the decree, except to hold it a nullity.
- A nullity founds no res judicata, since Section 11 requires a competent court.
6. Frequently Asked Questions
When is a decree a nullity?
Where the court that passed it had no jurisdiction over the subject matter: where the civil court's jurisdiction was barred by statute, where the matter belonged exclusively to a tribunal, where the court had no jurisdiction over the person at all, or where it was not competent to grant the relief.
Is a wrong decree a nullity?
No. A court with jurisdiction has jurisdiction to decide rightly and to decide wrongly. An erroneous decision on fact or law is a valid decree that binds the parties until set aside by a court with power to set it aside, and the remedies are appeal, review and revision.
Does a defect of territorial or pecuniary jurisdiction make a decree void?
No. Section 21 makes such defects curable: the objection must be taken in the court of first instance at the earliest opportunity, and no decree is set aside unless there has been a consequent failure of justice.
Must a nullity be set aside before it can be disregarded?
No. Because the decree is non est in the eyes of law, its invalidity may be asserted without first obtaining an order setting it aside, and every court is to treat it as a nullity.
Can the executing court hold a decree to be a nullity?
Yes. Section 47 forbids the executing court from going behind the decree, but the recognised exception is a decree that is a nullity for want of jurisdiction, which may be resisted at the stage of execution.
Can parties cure a want of jurisdiction by consent?
No. Jurisdiction over the subject matter is conferred by law, and parties cannot confer on a court what the legislature has withheld, nor take away what it has given. Kiran Singh states this expressly.
Does a nullity operate as res judicata?
No. Section 11 requires a court competent to try the subsequent suit, and a decision given without jurisdiction does not satisfy that condition, so it does not bar a later suit.
7. Related Topics in This CPC Series
- Void and Voidable Decrees Distinguished
- Collateral Challenge to a Decree
- Jurisdiction of Civil Courts: Section 9, Types and Section 21
- Questions Determined by the Executing Court under Section 47