Section 38 Bharatiya Sakshya Adhiniyam, 2023: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved

Section 38 of Bharatiya Sakshya Adhiniyam, 2023: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Proved Sec 2(1)(f)

Legal Commentary & Landmark Judgments: Section 38

Section 38 permits any party to a suit or proceeding to show that a judgment, order, or decree proved by the adverse party was delivered by a court without jurisdiction, or was obtained by fraud or collusion.

Collateral Attack on Fraud: Codifies the universal legal maxim: 'Fraud avoids all judicial acts, ecclesiastical or temporal.'
Inherent Lack of Jurisdiction: A decree passed by a court lacking subject-matter or territorial competence is a coram non judice nullity and can be challenged anywhere.
Collusion Defense: Enables third parties or defrauded litigants to pierce collusive consent decrees designed to defeat creditors or statutory ceilings.

Key Landmark Precedents:

S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: The Supreme Court held that a judgment or decree obtained by playing fraud upon the court is a nullity and can be challenged in any court, at any time, in collateral proceedings under Section 44 IEA (Section 38 BSA).
A.V. Papayya Sastry v. Govt. of A.P. (2007) 4 SCC 221: Reaffirmed that fraud vitiates all solemn acts; no court will allow a party to retain an advantage obtained by fraudulent concealment of material facts.

Courtroom Practice & Strategic Litigation Guidance:

When confronted with an adverse consent decree or partition order obtained behind your client's back, invoke Section 38 directly in your defence or cross-suit; you are not required to file a separate declaratory suit to set aside the void decree.