‘Recall of Order’ and Section 44 of the Indian Evidence Act, 1872

Abstract

A judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non-est in the eye of the law. Such a judgment, decree or order- by first court or by the final court- has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. It is settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Fraud avoids all judicial acts, ecclesiastical or temporal. Section 44 of the IEA enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.