§ SECTION 38 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Fraud or collusion in obtaining a judgment, or incompetency of the Court, may be proved

The judgments run closes with its escape hatch: even a §§ 34–36 judgment your opponent proves can be undone by showing the Court lacked jurisdiction, or the judgment was got by fraud or collusion.

How to read Section 38

The counter-move to a binding judgment.

Who & what

Any party may attack a §§ 34–36 judgment that the adverse party has proved.

Three grounds

The Court was not competent, or the judgment was got by fraud, or by collusion.

The limit

Only these grounds — not a re-argument of whether the earlier Court was right.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 38 · verbatim

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, 35 or 36, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

In short: the earlier sections give some judgments real force — conclusive (§ 35), or relevant (§§ 34, 36). This section is the answer: that force is not absolute. The party bound may knock the judgment out by proving the Court had no jurisdiction, or that it was procured by fraud or by collusion.

→ This carries forward IEA 1872 § 44 — closing the run on judgments (§§ 34–38).

Glossary

any party

Anyone in the present suit or proceeding — including a stranger to the earlier judgment.

competent Court

A Court with jurisdiction over the subject and parties — the power to give that judgment.

fraud

Deception in obtaining the judgment — forged documents, suppressed notice, false evidence procured to win.

collusion

A secret agreement between the parties to obtain a sham judgment — often to bind a third person.

proved by the adverse party

The section bites only where the opponent has put the judgment in evidence against you.

delivered by a Court not competent

Ground 1 — want of jurisdiction makes even a “conclusive” judgment attackable.

The picture

Three flaws that strip a judgment of its force.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe three attacks

the ruleAttacking a judgment the other side relies on

In one lineWhen your opponent proves a §§ 34–36 judgment against you, you may still show it was given by an incompetent Court, or obtained by fraud or collusion.

Any party to a suit or other proceeding may showwho · any partyany party to the case may prove…

that any judgment, order or decree which is relevant under section 34, 35 or 36,which judgment · a §§ 34–36 one…that a judgment made relevant under § 34, 35 or 36…

and which has been proved by the adverse party,put in by the opponent…and which the other side has put in evidence…

was delivered by a Court not competent to deliver it,⚠ attack 1 · incompetent court…was given by a Court with no jurisdiction to give it…

or was obtained by fraud or collusion.⚠ attacks 2 & 3 · fraud / collusion…or was obtained by fraud, or by collusion.

ExampleB relies on a probate decree (§ 35, conclusive) to prove he is the executor. A may still show the probate Court had no jurisdiction, or that B obtained the probate by fraud (a forged will) or collusion — and the decree loses its force.

✗ Not thisThis is not a re-opening of the merits — you cannot re-argue whether the earlier Court decided rightly. You may attack only on three narrow grounds: the Court’s incompetence, fraud, or collusion — and only against a judgment the other side has proved under §§ 34–36.

the three attacksHow a judgment loses its force

In one lineThree ways to knock out an opponent’s §§ 34–36 judgment — no jurisdiction, fraud, or collusion.

delivered by a Court not competent⚠ no jurisdictionthe Court had no power to give that judgment at all.

obtained by fraud⚠ fraudthe winner deceived the Court or the other side to get it (e.g. a forged will, suppressed summons).

obtained by collusion⚠ collusionthe parties secretly conspired to get a sham judgment to bind a third person.

ExampleA collusive decree — where A and B secretly agree to let A “win” so as to bind an outsider C — can be shown by C to be collusive, and it will not bind him.

✗ Not thisThe fraud must be in obtaining the judgment (suppressed summons, forged documents) — not merely that the decision was wrong. And incompetence means a lack of jurisdiction, not a mere error of law within jurisdiction.

Connected provisions

§ 35

IEA 1872, § 44

Carried forward — the escape hatch closing the judgments run.

Bharatiya Sakshya Adhiniyam, 2023 — Section 38: Fraud, collusion or incompetency to attack a judgment