The defect

Want of jurisdiction over the subject matter

Vitiated by something the law lets a party complain of, such as absence of service or want of leave

A procedural defect not affecting the merits or the jurisdiction

Its effect on the decree

None: the decree is a nullity from the start

The decree is valid and binding until avoided

The decree stands

Who may complain

Anyone against whom it is set up, at any time

Only the party the law gives the right to, and only he may waive it

The point is answered by Section 99 or Section 21

Within what time

No limitation; it may be raised whenever the decree is relied on

Within the period prescribed for the proceeding, as thirty days under Order IX Rule 13

Not applicable

Can it be waived?

No. Consent cannot confer jurisdiction

Yes, expressly or by acquiescence

In effect yes, since the objection fails without prejudice

Collateral challenge

Permitted

Not permitted: the decree must be set aside in the proper proceeding

Not permitted

Effect if nothing is done

It remains a nullity and binds nobody

It becomes unimpeachable once the period passes

It was always good

§ What belongs here

Only a decree passed without jurisdiction over the subject matter, in the sense discussed in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340: the civil court's jurisdiction barred by statute, the matter belonging exclusively to a tribunal, or the court having no jurisdiction over the person at all.

Why it is narrow. If void decrees were common, no decree could be relied on. The category is confined to the case where the court was never authorised to decide the matter, so there was never an adjudication that the law recognises.

The consequences all follow from that. It binds nobody, needs no setting aside, may be challenged at any time, in any court, and collaterally, and is unaffected by consent or by the passage of time.

§ Instances under the Code

Most defects that matter fall here:

• An ex parte decree passed without service of summons. The court had jurisdiction, but the defendant was not heard. He applies under Order IX Rule 13 within thirty days under Article 123, or appeals under Section 96(2).

• A compromise entered into on behalf of a minor without the leave of the court. By Order XXXII Rule 7(2) it is voidable against all parties other than the minor, so only the minor may avoid it.

• A compromise recorded although not lawful. The remedy is an application to the same court under the proviso to Order XXIII Rule 3, and Rule 3A bars a separate suit.

• A sale in execution vitiated by material irregularity or fraud. The sale stands unless set aside under Order XXI Rule 90, on proof of substantial injury, within sixty days under Article 127.

• An abatement. The suit abates automatically, but the abatement may be set aside under Order XXII Rule 9 on sufficient cause, within sixty days under Article 121.

§ The two features that define a voidable decree

It is valid until avoided. Until the proper proceeding succeeds, the decree may be executed and relied on. A party who simply ignores it because he thinks it defective will find it enforced against him.

The right to avoid may be lost. By the lapse of the prescribed period, by waiver, or by acquiescence. That is the sharpest practical difference from a void decree, which no inaction validates.

§ Section 99 and Section 21

Section 99. No decree shall be reversed or substantially varied, nor any case remanded in appeal, on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in the proceedings, not affecting the merits of the case or the jurisdiction of the court.

Section 21. Objections as to the place of suing and as to pecuniary limits are allowed by an appellate or revisional court only where the objection was taken in the court of first instance at the earliest possible opportunity, and where there has been a consequent failure of justice.

The common test. In both, the question is not whether the rule was broken but whether the breach made a difference. Where it did not, the decree stands and the objection is simply answered.

Did the court lack jurisdiction over the subject matter?

VOID. The decree is a nullity and may be disregarded whenever it is relied on

Does a provision of the Code give a named party a right to have the decree or order set aside?

VOIDABLE. He must use that proceeding, within its time, or lose the right

Is the complaint about place of suing or pecuniary value?

Section 21: an early objection and a failure of justice are both required

Is it any other procedural defect?

Section 99: the decree stands unless the defect affected the merits or the jurisdiction

Was the decree obtained by fraud on the court?

Treated as a nullity on the authority of Chengalvaraya Naidu, and challengeable at any time and collaterally