Section 38 BSA: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved

Bharatiya Sakshya Adhiniyam, 2023

Section 38 BSA at a Glance

Section 38 BSA deals with fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. It replaced Section 44 IEA on 1 July 2024.

Was IEA

Section 44 →

Section 38 BSA Bare Act Text

38. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved

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.

Source: Section 38, Bharatiya Sakshya Adhiniyam, 2023

Section 38 BSA in Simple Words

Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 lets any party in a suit or proceeding challenge a court judgment, order or decree (a formal court decision in a suit) that the adverse party (the opposing side) has proved. Even when an earlier decision is relevant (legally usable as proof), the party facing it can show that it is invalid.

Section 38 BSA applies when the opposing side proves a decision that is relevant under Section 34, 35 or 36 BSA. Section 34 BSA covers earlier decisions that legally bar a court from taking cognizance (formal notice) of a suit or conducting a trial. Section 35 BSA covers specified judgments in probate and similar jurisdiction. Section 36 BSA covers decisions on public matters connected to the enquiry, though they are not final proof.

Once the opposing side proves such a decision, the other party can prove that the court which passed it was not competent (lacked legal authority) to deliver it. Alternatively, that party can prove that the decision was procured through fraud or collusion (a secret arrangement to deceive the court).

When Section 38 BSA Applies

  • Applies to any party in a suit or other legal proceeding.
  • Applies when a judgment, order or decree is relevant under Section 34, 35 or 36 BSA.
  • Applies after the opposing side has proved that judgment, order or decree.
  • Lets the party show that the court lacked competence to deliver the decision or that the decision resulted from fraud or collusion.

Example of Section 38 BSA

In 2025, Farhan proves an earlier Bhopal order under Section 34 BSA to bar a suit brought by Priya. Farhan relies on that earlier order as a relevant decision that prevents the court from entertaining the suit. Priya points out that the court which issued the earlier Bhopal order lacked legal authority to pass it. Under Section 38 BSA, Priya may show that the earlier Bhopal order was passed by an incompetent court.

Section 38 BSA in the IEA (Previous Law)

Section 38 BSA replaces Section 44 IEA from the old criminal code.

Section 44 of the Indian Evidence Act, 1872 became Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. Only the section numbers it cites were updated.

FAQs on Section 38 BSA

What is Section 38 BSA?▼

Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 allows any party in a suit or proceeding to challenge a judgment, order or decree proved by the adverse party under Section 34, 35 or 36 BSA. The party may show that the decision was passed by an incompetent court or procured through fraud or collusion.

Which judgments, orders or decrees can be challenged under Section 38 BSA?▼

Judgments, orders or decrees that are relevant under Section 34, 35 or 36 BSA and proved by the adverse party can be challenged. These cover decisions barring a repeat suit or trial, specified probate and similar judgments, and decisions on public matters.

Can a party challenge an earlier decree under Section 38 BSA on the ground of fraud or incompetency of the court?▼

Yes. Once the adverse party proves a relevant decision under Section 34, 35 or 36 BSA, any party to the proceeding may show that it was procured through fraud or collusion. That party may also show that the court which delivered the decision lacked competence to do so.

What is Section 38 BSA in IEA?▼

Section 44 IEA. Section 44 IEA became Section 38 BSA on 1 July 2024 with no substantive change to the rule. Only the cited section numbers were updated from Sections 40, 41 and 42 IEA to Sections 34, 35 and 36 BSA.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·