Difference between Direct Attack & Collateral Attack

In Navaneethammal vs. Ammakannammal and Ors.[1], the plaint included a claim which was prima facie untenable. However, such untenability of the claim was discovered only after the decision of the Federal Court. It is evident that the untenability of a claim is undoubtedly a reason for disallowing the same. However, if the Court happens to wrongly allow it, such an error may be corrected by taking resort to one or other of the modes known to law, i.e. by way of review, appeal, revision or by suit, as the circumstances may permit. Such attempts to vacate, modify or correct a decree of a competent Court by proceeding in one of the modes permitted by law is what is termed as ‘direct attacks’. Such direct attacks will succeed if the error of fact or the deviation from law which is said to vitiate the decree or order is established.

On the contrary, a ‘collateral attack’ is an attempt to avoid, defeat or evade the decree or order or to deny its effectiveness by or in a proceeding, other than a direct attack, with the object of rendering it a dead letter, a nullity to be ignored.[2] The doctrine of collateral attack can only succeed if an absolute lack of jurisdiction over the subject-matter is established.[3] For instance, earlier in Malkarjun v. Narhari[4] it was held that the doctrine of collateral attack can prevail only if the Court which made the decree or order questioned, had acted wholly without jurisdiction. It is to be noted that a judgment would not be open to avoidance or evasion by collateral attack if the party who had such opportunity, omitted to take advantage of it by taking the objection at the proper time or by proper mode.[5] Such a position was taken in Minakshi v. Subramaniam[6].

There are clear authorities for the proposition that- “an erroneous decision by a Court of competent jurisdiction is not open to collateral attack, and can only be corrected or vacated by proceedings in the nature of a direct attack taken in the manner and within the time allowed by law unlike a decision of a Court wholly without jurisdiction, which can be collaterally attacked as a nullity on account of the absence of inherent jurisdiction over the subject-matter.”[7] The test to be applied in deciding a question of this kind is to enquire whether a Court had the power and was under a duty to decide the matter, the wrong decision of which is alleged to make the order a nullity.[8] It was further noted in Nageswara v. Ganesa[9] that- “a distinction has always to be made between competency or jurisdiction to make an order, and the correctness of the order on the merits where the Court had the jurisdiction to decide the question.”

The Apex Court in Sushil Kumar Mehta v. Govind Ram Bohra[10] referred to the earlier case of Kiran Singh v. Chaman Paswan[11] to observe that- “it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings.” Thus a decree can be challenged at the stage of execution or in collateral proceedings if the decree is passed by a Court without jurisdiction or lack of inherent jurisdiction, as such decree is a nullity and is non est.[12]

Author: Vivek Kumar Verma

[1] AIR1944Mad513

[2] AIR1944Mad513, para 6

[3] AIR1944Mad513, para 6

[4] (1901) 25 Bom. 337

[5] AIR1944Mad513, para 7

[6] (1988) 11 Mad. 26

[7] AIR1944Mad513, para 7

[8] Nageswara v. Ganesa A.I.R. 1942 Mad. 675

[9] A.I.R. 1942 Mad. 675

[10] (1990)1SCC193

[11] [1955]1SCR117

[12] Mustafa Khan S/o Ibrahim Khan Pathan vs. Mst. Jainabbi W/o M.A. Hafiz and Ors., 1994 (96) BOMLR 122