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18. Sri Sivasankar argued that the proceedings by way of appeal or revision cannot be considered to be a collateral proceeding as it is & direct attack upon the validity of the judgment. He relied upon the decision in Gajadharlal v. Suganchand where it was held that the attack on the validity of an order of a Judge in an appeal on the ground that the subordinate court giving the decision was not properly constituted is not a collateral attack but a direct attack against the judgment. We do not agree. Though this appeal and the revisions arise out of the judgment which is sought to be attacked, nevertheless the attack is in a collateral proceeding as the Judge whose appointment is attacked is not a party to these proceedings.

It is argued that the Supreme Court was of the view that the question of age could be judicially determined even in a collateral proceeding. We are not inclined to agree with this interpretation of the passage. The Supreme Court merely stated that the question of age could be determined in a proper proceeding. It did not say what that proper proceeding should be, as there was no necessity to go into that question. We do not understand the Supreme Court as saying that such a question could be determined in any proceeding even in a collateral proceeding.

21. Even with regard to this question, Sri Siva Sankar relied upon the decision in Queen Empress v. Ganga Ram (1894) ILR 16 All 136 (FB) (supra) and submitted that the Full Bench proceeded on the footing that the appointment could be questioned in a collateral proceeding, namely by way of objection to the Constitution of a Bench consisting of Burkitt, J. But here again, the question whether the appointment could be attacked in a collateral proceeding was not considered and decided by the Allahabad High Court and we cannot therefore regard it as an authority for the proposition that the validity of an appointment can be questioned in a collateral proceeding. Sri Sivasanker however, argued in this particular case there was no need for him to attack the validity of the appointment as there is already a decision of the Supreme Court rendered on 2-9-1975 that the appointment of these District Judges is illegal and opposed to the Constitution. That decision being the decision of the Supreme Court would be binding on all persons and on all courts. It is the duty of this Court to take note of that decision and hold that the judgments are nullities. We are unable to agree. It may be that there is a decision of the Supreme Court holding that the appointments are invalid, but still in the present proceedings, the person who is challenging the validity of the judgments on the ground that the appointments of Judges who rendered those judgments were invalid has to prove that the appointments are invalid. It may be that he is entitled to rely upon the decision of the Supreme Court for that purpose. But nevertheless the issue has to be raised and the matter has to be decided in these proceedings as to whether the appointment is invalid or not. The court is precluded from doing so as this is a proceeding to which the Judge is not a party and is therefore a collateral proceeding. In our view if a person is permitted to attack the validity of appointment in a revision or appeal against the judgment of a particular Judge it would be a collateral attack on his appointment for though the impugned judgment is rendered by the Judge in question he is not a party to the proceedings and any decision arrived at would be a decision arrived at without hearing the Judge concerned and without giving an opportunity to him to present his case.

22. Lastly Sri Siva Sankar submitted that this is not a case where the apointments were questioned after the judgment was delivered, but the dispute as to the validity of the appointment was raised in several writ petitions in this High Court long before the judgments are rendered by the Judges in question. The petitioners in those writ petitions applied for a direction that these Judges should not function until the writ petitions were disposed of. But as their prayer was not granted the Judges continued to toe Judges. Therefore, the Judges were aware that their right to function as Judges was the subject-matter of dispute and nevertheless they tried, heard and disposed of these cases. In these circumstances, it is open to the appellant and the petitioners to contend even in appeal or revision that their judgments were illegal and nullities. We do not see how on principle this circumstance makes any difference. If once it is held that the appointment of Judges cannot be attacked in collateral proceeding, it does not make any difference whether a dispute has been raised regarding the appointment in other proceedings, before the judgment was rendered. As long as the judgment was rendered before a decision was made declaring the appointment illegal it would be a judgment rendered by a person bona fide exercising his functions as a Judge and it could not be subject to attack in a collateral proceeding. Sri Sivasankar relied upon a passage at page 890 in Jai Kumar v. State 1968 All LJ 877 (FB) where it was observed that the impugned judgments are not liable to be set aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the judgments were rendered. He submitted that as in this case & dispute had been raised, the de facto colour under which the Judges functioned had been exposed. We are unable to agree with this interpretation of the judgment. What was obviously meant by the expression 'exposed' by the learned Judges was that the appointments had been declared illegal. In this case the appointments had not been declared illegal when the judgments had been delivered. Perhaps, a plausible argument may have been put forward if a person delivered judgment after his appointment is declared illegal. For instance when an appeal is preferred that the judgment holding the appointment illegal and stay has been obtained and later the judgment is confirmed in appeal, it may perhaps then be argued that the confirmation in appeal dates back to the date of the original judgment by which the appointment had been declared illegal and any judgment rendered by that Judge subsequent to that date must be held void. But we are not concerned with such a case here for, until the Supreme Court delivered its judgment, the Judges concerned were bona fide performing their functions, especially as the High Court had held that their appointments were valid.