Whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court

The issue is No. more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors., AIR 1996 SC 906; and Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).

13. In Sultan Sadik v. Sanjay Raj Subba and Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.

14. In M. Meenakshi and Ors. v. Metadin Agarwal (dead) by L.Rs. and Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-

It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof.

(Emphasis added)

Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup and Ors., (2009) 6 SCC 194.

From the above, it is evident that even if a decree is void ab initial, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.


Categories: CIVIL

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