Comments: party in the previous suit or


Section 44 gives an opportunity to the adverse party to raise questions that the judgment obtained under sections 40, 41 and 42 by the first party in the previous suit or proceeding was not in accordance with the principles of the Law of Evidence. It is not necessary for the adverse party to bring a separate suit to have the previous judgment set aside, but he can challenge the judgment in the same suit or proceeding that the judgment was delivered by the court not competent to deliver it or the judgment was obtained by fraud or collusion. This section applies to both Civil and Criminal proceedings. However, Sections 41 to 44 do not suggest that the decisions of the civil court would be binding on the criminal courts.

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Section 44 lays down that a party to a suit or other proceeding may show that a judgment, order or decree:

(i) Which is relevant under section 40 that is, which would, as a judgment inter-parties operates as res-judicata;

(ii) Which is relevant under section 41 that is, which is relevant as a judgment-in-rem;

(iii) Which is relevant under section 42 that is, which is evidence as a judgment relating to public matter;

(iv) Which is proved by the adverse party;

It was passed by a court,—(i) which had no jurisdiction to pass it or (ii) it was obtained by fraud or collusion.

The Section 44 “is permissive and not prohibitive.” It allows party to avail a judgment by proving fraud or collusion, but it does not destroy his substantive right which exists independently of the Act. Other aspect of this section is that the application of the rule is limited to the cases in which a decree is treated relevant only under sections 40, 41 and 42.

The principle of Section 11 of the Civil Procedure Code will not apply if any one of the grounds mentioned in Section 44 exists. The principle of res judicata does not apply if a previous decree is proved to have obtained by fraud.

Court without competence:

A judgment delivered by the court was not competent to deliver it. It means the court had no jurisdiction to decide the matter in question and so was not binding. In a case where the question of court’s jurisdiction has been directly raised and directly decided in favour of the jurisdiction upto the highest court it would not be open to a party to raise the question against.

The expression “a court not competent to deliver it” means that the court had no jurisdiction to decide the matter in question. “The competency of a court and its jurisdiction are synonymous term. This means the right of court to adjudicate in a given matter.”

Judgment, Order, or decree obtained by fraud:

When a judgment, order or decree is obtained by practicing fraud upon the court it is not valid. A fraud may be either actual or positive fraud or constructive or legal fraud. According to Sir James Stephen in some cases “it may be mere secrecy.”

Under section 44 order sought to be executed was not binding if it was passed by mistake or by fraud. A decree of a superior court can be declared void by an inferior court on the ground of fraud. If a judgment or decree initial by fraud, the same would be a nullify. In such an event Section 44 could be attracted. A certificate of sale of land obtained by fraud is a nullity and it can be challenged collaterally by way of defense without bringing a suit to set it aside. Fraud must be external collateral to adjudication and a “compromise decree cannot be said to be the result of fraud.”

Gross negligence:

Section 44 is also applied to the cases of gross negligence. The Privy Council has laid down that Section 44 cannot be extended to cases of gross negligence. But in the said case the PC observed that “the court can not treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts.” But different High Courts are of views that a suit is maintainable for setting aside a decree on the ground of gross negligence.


“Collusion” means “an agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose.” The meaning of section is that if collusion is proved between the parties to a previous suit then the judgment in that suit which is relevant under section 40 cannot act as a bar. An ex-party decree obtained by collusion may be set aside under order 9, Rule 1 of the C.P.C.

Opinions of Third Persons, when Relevant The general principle of the law of evidence is that a person who is acquainted with the facts of a case may become a witness. Every witness is a witness of facts. A person who appears before the court is required to state about facts what he knows or experiences. He is to speak about facts only of which he has personal knowledge. He is not required to give his opinion or belief. Because, the opinion or belief of a third person is as a general rule irrelevant and therefore is not admissible.

However, there are cases in which the court has to depend on opinions of third person when it is not in a position to form any correct opinion. Under sections 45 to 51 of the Evidence Act a third person is invited by the court for his opinion on any particular point when the question involved is of such a nature and “is beyond the range of common experience or common knowledge, or when a special study of a subject or special experience therein is necessary,” in such cases opinions of an expert is required to enable a court to come to a particular decision.

Thus, Sections 45 to 51 lay down the rule of exceptions when an opinion of a witness who is generally a third person, is relevant provided he is an expert on special matters or has acquired a special experience therein/ There are persons who have got professional skill or specialized knowledge in science, art, technology etc. may be called experts. Section 45 has mentioned who are experts for the purposes of evidence.