Law Commission Report
Limitation Act
"€'.0NFlDENTI.M..---H01: for l't:blIcIEnn".
LAW COMMISSION
OF INDIA
THIRD REPORT
(L1MITA'l"ION ACT, 1908)
GOVERNMENT OF INDIA 1 MINISTRY 01: Law
CON"I'EN'I'S
Pm I---Plnmmnmr
Crm-'ran I--Intl'oduct§0n.. .. .. .. .. .,
Pant II--Sac:r1oNs
CHAPTER II---Pt-opcsals relating to Sections .. .. .. ..
P531" III---AIrm:t.1n
Gavin III--General .. .. .. .. .. .. ..
C!-IAFTEB I\T--suits on contract and tort .. . .. ..
CH.\P'I'E|I V---Suits relating to movable property . .
CHAPTER VI---Suirs rclating to trusts and trust property .. ..
{:1-um'|m VII--Suns re|.atL'1g to immonble property . .
CHAPTER VIII--Snits relating to-other claims .. ..
Crm-'um K-Applications .. .. ;. .. ..
CH8-P'I'ER'KI-~COnc1usions.. .. .. .. .. ..
1~IotebyDr.ScnG»uprta .. .. .. .. .. .
Am~mxuns--Thc proposals as inserted in theerimns Act. . ..
APPBNDDI I--'-Elfccts of proposals on the perrodu of limitation. ..,
APPENDIX II--Comparative table showing the nude: in the
exisringact and the corresponding article: in the
Schedule to the Annemre.
A1-u=E1~m1x III--Suggestions rclnaias to otnt:rActu .. .. ..
Pants
14
«P35
35-28
' 28-45
45-46
46-53
53-61
61-63
53-6:-'
59'?!
ii
CHAIRMAN
Law Connussiou.
Nzw Dunn
July 21, 1956-
Shri C. -C. Biswas,
Minister of Law ,
& Minority Affairs,
NEW DELHI.
M'! nun M11-usmn,
I have great pleasure in forwarding herewith the third Report
of the Law Commission, on the Limitation Act.
3. At its first meeting held on the 1'Fth September, 1955, the
Commissin decided to take up the revision of the Limitation Act
and entrusted the task to a Committee consisting of Sri P. Satyr
narajrana Rae and Sri V. K. T. Cheri.
3. The consideration of the subject was initiated by Sri Rae,
the senior Member of the section of the Commission dealing with
Statute Lew Revision who formulated a scheme for the revision
of the Act. The principles underlying the scheme were discussed
at a meeting of the second section held on the 11th February 1958
A' draft Report prepared in the light of the discussion wss'circu-
lsted to all the Members of the Commission and their views in-
vited thereon. These views with the draft Repoz-t"were discussed
at meetings of the Statute Revision Section held on the 11th March
1956 and the 14th rip:-i1 1956- Important suggestions made by
Members at these meetings were accepted and certain questions
were referrred to the Committee for iurther consideration. The
Report was again discussed at a meeting of the _§tatute Revision
Section held on the 12th May 1955 and it was left to the Chairman
and Sri Satysnarayana Rso to finglly settle the Report in the light'
of the discussion.
4. Dr. N. C. Sen Gupta while signing the Report has added a
sepamte note on two points on which he has taken a view differ-
ent from that in the Report. Sri S. M. Sikri being outside India
is unable to sign the Report but he concurs in its recommendations.
Yours sincerely.
H. C. Setaivsd.
BEFORE.' 01'' {III IAIW l
{IN 1!! IEHAHQN AG!'
PART I--PRBLIMHVARY
Cnarren I--
The utility of a statute oi' limitation hm never been a
matter of serious doubt or dispute. It has been said that
Hail
and
ntfliw
logo
in
thestatuteo£limitationisastatuteoirepoee,pemoeand '
justice. It_is one of repose because it extinguiabes stale
demands and quiets title; in the words at John Voet,
oontroversiesarerestrictedtoafixedperiodoftimelest
theyshouldbecomeimmortslwhilemenaromortal. It
secures peace as it ensure: security of rights; and it
secures justice, as by lapse at time evidence in support of
rights may have been destroyed. There can thus be no
doubt that it rests on sound policy} The operation of
the law of prescription has been explained by Lord
Plunlret in a striking metaphor. He stated that Time
'hold5inonehandasc3fl:heandintheother.anhour-glls.
The scythe mows down the evidence of our rights, while
the hour-glass measures the period. which renders that
evidence superfluous. Commenting on this, a learned
author observes that the metaphor could have been
eompleted by adding, so far as India is concerned,
that the framework of the hour-glass would certainly
-decay, the glass be broken, and the sand escape.
2. Under the Hindu jurisprudence there was only a law Him!!-
of prescription and no Law of Limitation as such. For
the acquisition of title by prescription, a period of 20
years was laid down by certain Serra-iti writers, though
others difiered regarding 'lhe length of the period. The
main occupation of the people being agriculture and there
being verywlittle of commerce or trade, concentration was
more on the land and the rights therein. This was the
position not only in Hindu society but also in other
ceuntries; thus in England. before the James Statute of
1523 there was no specific law of Limitation.
'?iTFroranc!:u:i3ationoEI3ic)p-i§:y tee
. ' K. Ind R.B.PaIiB§€l
,s§,s°**'=* *°°1 **
. ..,.,.,- .--,.. .'.,...\..... a_ , L ,_ , .-..-Am. ._...;..gnu.n,
3. Before 1858, two systems of law of Limitatioii were
administered by-the courts' In the territories
within the original jurisdiction of the courts established'
by Royal Charter in the Presidency towns of Calcutta.
Madras and Bombay, the English Law, and in the mofussil
courts, the law as laid down by the Regulations, was
administered. The first attempt to introduce a unitorm
law of Limitation applicable alike to courts established
byrltoyal Charter and other courts was made hythe
Limitation -Act, 1359 (XIV of 1859} which _-came into
operation in 1862. It' was tollowed by Act IX oi 1B'l1',
which amended the law laid down by the former Act -on
the basis of the ofthe courts. _'.~l'he Act of 1871
was soon replaced by Act XV o£ 18?'? which introduced
some alterations. There were other amending Act:
'which followed the Act of 187?. Finally, as a result of
the decision of the Privy Council in Vtumdeuo. v. Srinimuai
on the applicability of article 132 to suits on mortgage:
for sale (over-ruling the earlier. decisions which applied
article 14?), the question of-consolidating and amending
the law relating to Limitation for suits, appeals - III'!
applications was taken up and this resulted in the padng
of the Limitation Act of 1903' (Act IX of 1903). This Act
was also amended from time to time particularly other the
report of the Civil Justice Committee of 1924-25. This is
the Act now in force. It applies to Part A and Part C,
as well as to Part B States, subject to the modifications
made by Act III of 1951.
A or 4. The Act of 1908 consists of 30 sections and 183 articles.
ggosf'-'~" "The sections deal with general principles applicable in
extension of time whether by reason of disability or by
acknowledgment and part payment, and they are divided
into five parts. Part I is preliminary, Part 1! (sections 3'
to 11) deals with limitation of suits, appeals and
applications, Part III {sections 12 to 25} deals with
computation of period of limitation, Part IV (sections
to 23) deals with acquisition of ownership by possession
and Part 1? (sections 3 and 30) contains saving provisions.
Of the 183 articles.-articles. 1 to 149 relate to suit: (the
first division], articles .150 to 15? relate to appeals, (second
division) and articles 158 to I relate to applications.
(thirdidivision). Tliearticles relating to suits are divided
into 10 parts on the basis '0! the periods of limitation and
not on the nature of suits. The periods range 30
('1 30 MIL 436-
p at their will and pleasure.
days to 60 years. For appeals there are 6 periods
ranging from 7 days to 6 months. For applications there
are»? periods ranging from 13 days to 12 years.
5. The need for reform of the Law of Limitation in
India has been felt for quite a long time. One of the
questions formulated by the Civil Justice Committee oi
1925 was, 'fIn what cases do you consider that the Law
of Limitation might be made more stringent?" and in
response to this, a number of suggestions were made for
the deletion or amendment of various sections and articles
of the Limitation Act. As, however, the revision of the
Act involved more labour than that Committee could
bestow, in its report it confined its observations to a few
articles. In a note appended to that report Sir Tej
Bahadur Sapru particularly adverted to the fact that the
seemingly innocuous provision in Article 182 of the
(Limitation Act providing limitation for the execution of
decrees afforded a standing temptation to dishonest
decree-holders and dishonest judgment-debtors to trouble,
annoy and cheat each other and to prolong the execution
He also drew the attention
of the Committee to the fact that the commentary in
Rustarnjfs edition. of the Limitation Act on that Article
covered 75 closely printed pages. (In the fifth edition, it
covers nearly 200 pages}. The provision of different
articles for different categories of suits and a residuary
article providing a longer period of limitation is
responsible for conflicting decisions and the attempt of
the plaintiff has always been to bring his suit, if possible,
within the article providing a longer period of limitation
while the defendant attempted the opmite. It cannot
be gainsaid that the law should be simple and certain
The time of the courts should not be wasted in disputes
concerning the shadow and not thesubstance. As far as
possible, legislation should avoid the possibility of conflict
between various articles and not allow the residuary
article to confer any additional advantage. It is desirable
that people should not be exposed to the risk of "stale
demands" after they have lost all evidence---documentary
or ora1--in support of their claims. The nearer the action
to the hen of events, the easier it is to discover the truth.
The periods of limitation should neitherbe too long nor
too short. It should also accord' as far as possible with
the notions of a la'3rman,,eu.ch ea,'that for recovery of land
the period is twelve years,pnd other cases three years.
I' . 2!.-591' 2l'1.un' 7 6-77
Need for
reform. a
4
$£nt£;Ih 6. In England,_ the Law Revision Committee appointed
,3". 193, in 1934 subrnitted its Fifth Interim Report" suggesting the
lines on which the various Statutes of Limitation in
England should be consolidated and amended. As a
result of these recommendations the Limitation Act, 1939.
was enacted. The law in England has -been codified in
34 sections without any "schedules. Actions are classified
according to their nature and limitation is prescribed on
that basis. For common law actions founded on contract
or tort a uniform period of 6 years has been provided. _.
Actions to enforce recognisances, actions to enforce an.
award, where the submission is not by an instrument]
under seal, actions to recover any sum recoverable by '-_
virtue of any enactment other than a penalty or '-
forfeiture or any sum by way of penalty or forfeiture
are also governed by the same period of limitation. For
actions for account and actions on a specialty, periods
of 6 years and 12 years respectively have been provided.
For actions relating to the recovery of land as well as
for actions for the recovery of money charged on land, a
period of 12 years is provided. Separate provision has
been made for actions relating to trust, and actions
against public authorities. A special period of 30 years
is provided for actions by or on behalf of the Crown.
The Act then deals with the extension of periods of
limitation in cases of disability, acknowledgment, part
payment, fraud and mistake. It has not adopted the
scheme of further dividing actions founded on contract
or on tort as 'under the Indian Limitation Act. The
period is made to run in each of these cases from the date
when the cause of action accrues. The scheme adopted
under the English Act is, therefore, simple and does not
give much room for conflict of judicial opinion. '
"r'. We proceed to examine the provisions of our
Limitation Act with a view to see in what manner it
can be simplified and modernised in the light of judicial
decisions which have brought to light difliculties and
doubts. We do not propose any substantial change in -
the structure of the Act and would accordingly retain
its division, into Sections and Articles.
PART II--SEC'I'IONS
Cram-an II--PaoI-osnrs nswrrno -no Sac-nous
3. The Sections or the'Act deal with certain general
principles which are applicable to all suits' and
F-.2!--59f2f'L|nur.¢'Ir'é-3'?
5
proceedings and control the period of limitation under
the articles. In the succeeding paragraphs of this
chapter, the Sections are examined. We may, at the
outset observe that in our view, the Illustrations are
unnecessary and sometimes misleading and we
accordingly recommend that they should be deleted
wherever they occur.
Section 2--Definitiona:
9. We recommend that a new definition of the word "APP1,i,-
"application" so as to include any petition, original or '
otherwise, should he added. The object is to provide
a period of limitation for original petitions and
applications under special laws as there is no such
' provision now. Consequential alterations in the
definition of the word 'applicant' should also be made.
10. There are numerous articles in the present Act'-'C°11'fl'='"a
relating not only to contract, as the word is commonly
understood, but also to transactions coming under the
head of 'implied contracts' and 'quasi-contracts.' One
obvious way of simplifying the Act would be to have a
comprehensive definition of the word 'contract' for the
purposes of this Act and to make a single provision for
all suits based on contract. The question is how to
frame a suitable definition of the word 'contract'. For
this purpose, it is necessary to digress a little into the
field of the law of contract, to help us to realise the correct
implication of the words 'contract', 'implied contract'
.and 'quasi--contract' (all of which we propose to bring
under one definition for the purposes of the Limitation
Act). It is also necessary to trace the development of
this branch of law in England, as ideas based on English
Common law were imported into many of our early
statutes. '
11. In England, the development of the law of contracts
was peculiar due to historical reasons. The common law
courts paid more regard to the form of action than to its
nature. The action of indebitatus assumpstt was the
foundation of the development of this branch of the law.
Apart from obligations ea: delictu and ex comractu,
certain relationships between parties giving rise to
obligations (such as actions for money had and received}
came to be treated as if they had a contractual origin.
With the dichotomy of actions into contracts and torts
Q
in the 19th century, obligations of this kind were treated
as quasi-contracts. Some textbook writers have-
classified quasi-contracts under various heads. Chitty
, includes the following under this head:--
(1) action on judgments, English and foreign,
(2) action for money paid by the plaintiff at the
request of the defendant,
(3) action for payment by sureties,
(4) action for contribution between joint-contractors,
(5) action for money had and received (which is»
treated as based on implied contract) including
money in the hands of a stakeholder,
(6) action for recovery of consideration when it has
failed,
('3) action for money paid by mistake,
(8) action for money obtained by fraud or extortion.
(9) action for money paid under.an illegal contract,
(10) action for money paid under a void judgment.
Prof. Winfield defines. a quasi-contract as folIows:---
"The liability not 'exclusively referable to any
other head of the law imposed upon a particular-
person to pay money to another particular person on
the ground that non-payment of it would-confer on
"the former an. unjust benefit."
He classifies quasi-contracts, under four heads:
(1) pseudo quasi-contracts. I
(2) pure quasi-contracts, O
(3) quasi-contracts alternative to some other form of -
liability, and,
(4) doubtful quasi-contracts.
On the other hand, Cheshire adopts only a two»
fold classification:
(1) genuine quasi-contracts. and
{2} doubtful quasi-contracts.
Under the former are included actions for money paid'
by the plaintiff to the defendants, actions for money paid' ,
under a mistake of fact, actions for money paid in-
pursuance of an ineffective contract and claims) on
quantum meruit. (Under " the latter, actions on-
-judement-debts, on money due under statute by law or -3
T --» -1 5!-I-'7' .'Ll
custom, and claims for necessaries supplied to persons
under incapacity are included. From this classification
it would be seen that various kinds of actions are
included under quasi-contracts. The law was developed
from the observations of Lord Mansfield in Moses
v. Mocferlanfi In the decision in Sinclair v. Brougham"
Lord Sumner observed that the action for money had
and received was founded on an irnpliedtontract (its'
was in the writ of assunzpsitj and that it should
therefore, be classified as a contractual action. This
view evoked severe criticism in academic and judicial
circles. In the recent pronouncement in Re Diploclc"
the view of Wynn--Parry J ., in the' court of first instance,
that the action for money had and received is a common
law action on the case founded on an implied promise
to pay, was accepted by the Court of Appeal though it
reversed the judgment on other grounds. In the House
'of Lords, the decision of the case turned' on another
point {Minister of Health. v. S1'.mson',|.* In the Fibrosa
case' Lord Wright thought that the legal basis for an
action under quasi-contract was restitution. He said:
"It is clear that any civilised system of law is
bound to provide remedies for cases of what has
been called unjust enrichment or unjust benefit
L2. to prevent a man from retaining money or
some benefit derived from another which it is
against conscience that he should keep. Suclb
remedies in English law are generically different
from remedies in contract or in tort and are now
recognised to fall within the 'third category of
common law, which has been called quasi-contract
or restitution."
He dismissed the observations of Lord Sumner in
Sinclaifs case as obiter dicta. In United Australia V.
Burclays Bonk', Lord Atkin pointed out that the action
was based upon fictitious contract and characterised the
fiction as obviously fanciful in these words: '
"These fantastic resemblances of contracts
invented in order to meet requirements of the law
as to forms of action which have now disappeared
E1) (I76o)z. Burrow, IO-D5.
2% ((191 )5. C. 393.
(3 1943 Ch. D. 465.
(4 (I951) A.C.2s1.
£5 (I943) A.C. 32, 61.
6 (I941) A.C p. I at p. 39.
should not in these days he allowed to aifect actual
, rights. When these ghosts of the past stand in the
path of justice cianking their medieval chains, the
proper course for the judge is to pass through them
undeterred." , -
Notwithstanding these strong observations by two
eminent judges, it cannot be said that the English courts
have accepted the principle of unjust benefit as the basis
of English quasicontract. Lord Porter stated' that
though the law of unjust enrichment occupies a
permanent place in the law of Scotland and in the
United States, it formed no part of the law of England
and that the doctrine of restitution so described would
'be too widely stated. Under English law it has not
yet been accepted that the true basis for quasi-contracts
and actions for money had and received is the doctrine
-of restitution on the basis of unjust enrichment. Denning
L. J., in a recent book "The Changing Law" (at pp. 62-63)
has stated that the decision of Lord Porter does not 'rule
out the law of restitution though it excludes the law of
unjust enrichment.' According to his view the law of
restitution covers those cases "which cannot be brought
withir the scope of contract or tort but in which
'nevertheless the plaintiff can recover money under the
imoney counts or under some positive role of law such
.as that applied in the Cairo case or even under the rules
-of equity as in the case of Customers of Birkbeck Bank."
(pp. 66-67]. He advocates the recognition of a third
category of the common law distinct from contract and
tort to be called "restitution". The underlying principle
of the law of restitution is that no one should unjustly
enrich himself at the expense of his neighbour. It may
be said, as was felt by Denning L. J ., that the conception
'is too indefinite to be stated as a princinle of law. Yet
he observes, at p. 65:
"It sufficiently indicates a new category. Just
as the conception of contract is enforcement of
promises, and the conception of tortis damages for
prevention of unjust enrichment. Once this
category comes to be accepted into the law, the
all remedies into the straight jacket of contract and
(1) (I951) A~C~ 512
9
tort but will be able to develop -a comprehensive
category with its own distinct principles" (p. 65).
1-2. In India, the law of contract is to a large extent
governed by statute. Where there is provision in the
Contract Act, the Court will not apply common law, as
for example the doctrine of frustration, in view of
Section 56 (vide Satyobratn Ghosh v. Mangneeramll.
The Act. however, is not exhaustive and does not purport
to embody all the principles of the law relating to
contract including relations resembling those created by
contract. It is no doubt true that in Chapter V sections
68 to '72, the principles of the common law which are
described as quasi-contracts dr implied contracts are
enacted. But even there the Act does not cover all the
principles which form part of the substantive law of
contracts. Thus, the legal basis of an action for money
had and received for which a period of limitation is
prescribed by article 62 of the Limitation Act is nowhere
to he found in the statute book. Courts in India have,
however. applied the principles of that action to
situations arising in India. It will be necessary when
dealing with the law of Contracts to bring into the ambit
of the Act of all such principles of English law as have
been extended to India on the principle of justice, equity
and good conscience, but have not been embodied
"in the Act. In order to simplify the law and to avoid
labels adopted in England which have given rise to
conflicting decisions, we may embody in the Contract
Act the principles which should apply to India having
regard to the doctrine of restitution adumbrated by
Denning L. J. The law must progress and should not
remain stagnant. The doctrine of unjust enrichment has
been applied in other countries and justice requires that
"a man should not unjustly benefit himself at the
expense of another. To what extent the doctrine of
unjust enrichment should be adopted in the Contract Act
will have to be considered. The principle underlying
Section to 72 of the Contract Act would be the same
whether the claim he described as being for reimburse-
ment or for restoration or for contribution or for
restitution.
13. The expression "implied contract" is used in two
different senses. Section 9 of the Contract Act drawn
(1) EI9s4)§.E.Its 310
"Plaintifl-'
-G & D
'Def:-na.I1t,'
ID
a distinction between express and implied premises. It'
the proposal or acceptance of promise is made in words.
the contract is express. If such a proposal or acceptance
is made otherwise than in words, it is an implied
contract. This is the strict and orthodox meaning of
"implied contract". But the expression is also used in
a wider sense to include legal relations in which the
essential element of a contract is lacking. As observed
by Lindley L. J., in Re Rhodes' the expression "implied
contract" has been used to denote not only a genuine
contract established by inference but also an obligation
which does not arise from any real contract but which
can be enforced as if it has a contractual origin. Some
obligations which are labelled as quasi-contracts under
English law will come under the second category of
implied contracts in the wider sense. They are not
strictly contracts as the obligations do .not arise from
the consensus of the parties.
14. So far as the Limitation Act is concerned, we may a
adopt an extended definition of the word "contract", to
include in its ambit all implied contracts and quasi-
contracts, i.e., not only implied contracts which are
consensual and would be contracts under the Contract Act
but also all such obligations which the law imposes or
imputes having regard to the relationship between the
parties and the circumstances of the case in order to
prevent one party from retaining an unjust benefit and
to force him to return such benefit by way of restitution.
This would help in the consolidation of numerous articles
and thereby in the simplification of the Limitation Act.
15. The definitions of "p1ainti.E" and "defendant" as
they stand in the Act include a person from or through
whom a plaintiff or defendant derives his right or
liability to sue or to be sued. The object of this
inclusive definition is to make it clear that the cause of
action for a person "in whom the right to sue is vested and
- the person on whom the right has subsequently devolved
is one and the same. The position holds good in the
case of executors, administrators and representatives also
and we think it necessary that the definitions should be
enlarged so as to include not only a person from whom
the plaintiif derives his title but also a person whose
estate is represented by an executor. administrator-or
other representative.
(I3 {r89o)44 Ch. 13.94 at 1-,». ice.
II
15. The applicability of article 144 'of the Limitation
Act may be taken to fllustrate the "need-ffor this. The
third column of that article states that the time begins
to run "when "the possession of the defendant becomes
adverse to the plaintiif". -If the "plaintiff" therein referred
to is the person to Whom the right to sue had accrued and
-who in fact files a suit for recovery of possession, there
will not be any dificulty. But if the plaintiff who
'ins1itutes'the suit is the person on whom the' right to sue
-devolved. the adverse possession of the defendant against
the predecessor of the actual plaintiff would be of no
avail and time would run only from the moment when
the actual plaintiff derived his title. The object of the
-definition o "plaintiff" in the Limitation Act, as it is
now. is to resolve this diflieulty by making it clear that
the cause of action for both is the same and the date
-of its accrual is the date when the defendant's possession
became adverse against the 'original owner. A similar
-situation may also arise in the case of 'e1tecutors',
administrators or other representatives. Perhaps'-this
was not noticed at the time when the present Act was
passed. '
11'. Under section 306 of the Succession Act many causes
-of action survive to the executors etc., and in respect of
all those causes of action the executorsetc. are in the
same position as derivative title holders though they are
not treated as such.
13. The Courts have gone to the length of holding that
if a father to whom the right to sue had accrued gave
notice under section 80 C.'P.C. ancldied before filing the
suit and the suit was actually instituted by the son, there
should be a further notice by the son as the section
-contemplated notice by the actual plaintiff and not the
person who had the right of suit. (See Mahadeoa
.Dattotreya Rajarishi v. "Secretary of State}? In the
absence of a clear definition a similar interpretation
might be placed on the word "plaintiff" in the Limitation
Act when any executor, etc. happens to institute
proceedings. To cover this lacuna we propose an
-extended definition. The same reasoning would apply
to the definitions of "defendant" and '-'applicant''- and
they too should be amplified as stated in paragraph 15.
(1) 5.15. 193,-: Born. 36'} (1).
r.3A-59i2!1.aw.F?6--77
3Tml!
"Promissory
Note"
"'3i!.l of Ex-
i
I2
19. The executor, administrator or other representative
has an independent right of suit and is under an indepen-
dent liability in cases arising under the Legal}
Representatives Suits Act, 1355 and the Fatal Accidents
Act. These stand on a difierent footing-
20. There should be a definition of the word 'tort' so as
to include within it not only torts strictly so called. but
also any breach of statutory -duties of care which result in
injury and damage to the person or property. The Limi-
tation Act itself draws a distinction between breaches of
contract and wrongs independent of contract. oide section
21 A definition of 'tort' so as to include all civil wrongs
independent of contract may be adopted.
21. The definitions of "promissory note", "Bill of Ex-
change" and "Bond" need not be retained as "we propose to
consolidate all articles relating to Contract in one article,
;3°"d"""das a result of which these words will not find a place in
" =.-cement."
"Period
prescribed
the revised Act. The definition of the word "Easement"
may also be dropped if sections 26 and 27 are deleted as
proposed by us.
,_ 22. The expression "period prescribed" occurring in
Section 4 has been construed difierently by different courts.
Some courts take the view that it means only the periods
of limitation prescribed in the Schedule to the Act and'
does not attract the extensions of the periods of limitation.
under the Sections, which is obviously not correct. As-
the expression occurs in other sections also, it would be
better if a new definition clause for "period prescribed"
. is inserted to the effect that it means the period of 1imita--
tion computed in accordance with -the provisions of the
Act. We recommend accordingly.
Section 3*
23. There is some conflict of decisions between the High.
Courts as to when exactly time ceases to run in the case
of applications by notice of motion. One view is that it
stops when the application is filed and the other is that
it stops only when the notice of motion is actually taken
up by the Courtl. This controversy may be set at rest, by
fixing a definite point of time in this behalf. We think
(1') In re. GaHc;a_{_15 Q.B.D., 130} ;;('IItta_yan V. Efiajfittlf It-l.I..I.;5"--)
and Fad-appr_,w: V. N .w(4 Bum. 754)
r .3n--"sai2rtswJ:ra-7:
gen-zn--u»--.
I3
that the View more favourable to the applicant should he
adopted and, therefore, recommend that the time should
cease to run on the date on which the application is pro-
perly presented in court. A suitable amendment on
those lines may be effected.
24. With regard to a counter-claim and a claim for
set-off, difficulty is experienced as to the date on which
limitation is to be reckoned. We think that in respect of
a claim for set-off which, unlike a counter-claim, arises
from the same transaction, it should relate back to the
..date of institution of the suit. Set--otf should include a
legal set-off as well as an equitable set-oif. This follows
the rule under the English Limitation Act, 1939 (vide
Sec. 28 of that Act). In respect of a counter-claim how-
-ever, it should be regarded as a separate suit filed on the
.-day on which such claim is made.
Section 4.
25. The Privy Council in Maqbul Ahmad. V. Pmtap
Narayanl settled the law that section 4 does not extend the
-period of limitation but saves limitation if the suit "or
appeal or application is filed on the day of the reopening
of the court in cases where the limitation expired on a day
when the court was closed. The section does not, there-
fore, require any further change.
Section 5.
28. We are of opinion that instead of leaving it to the
different States or the High Courts to extend the application
of section 5 to applications other than those enumerated
in the section, a uniform rule should be adopted applying
it to all applications except those arising under order ICKI
of the Code of Civil Procedure relating to execution. In the
case of special or local laws, it would be open to such laws
to provide that section 5 will not be applicable.
Sections 6 and T.
2?. There is a difference of opinion between the Madras
and the other High Courts regarding the interpretation of
section 6 of the Act. The question arose under section 7 of
the old Act which corresponds to the present section 6. In
the Madras High Court the View taken by Justice Bhash-
u) 57 AIL 241-
14
yam Ayyangar in Ahinsa Bibi v. Abclull approved by the-
Full Bench in Periasamy v. Krishna Ayyana was that in
view of the definition in the General Clauses Act, the word
"person" includes a plurality of persons. Accordingly,
where a right is vested jointly in a piurazlity of persons,
the protection given by this section extends only to cases.
in which each of the persons, jointly entitled to sue or to
apply for execution, is affected by disability at the time
from which limitation has to be reckoned; if any of them
is then free from disability, section 5 is inapplicable.
But the other High Courts were of the view
that the section applied irrespective of the question whe--
ther all or one or some of the several joint-creditors or
claimants were under disability. In view of the present
section 7 (which was amended subsequent to the said:
decision) whatever may be the interpretation of section.
6, and whether the one view or the other is correct, if one-
of several persons is able to give a valid discharge with-
out the concurrenceof the person under disability, time
runs against them all. If, on the other hand, no such dis-
charge can be given, time will not run against any of them
until one of them becomes capable of giving such discharge
without the concurrence of the others or until the disabi-
lity has ceased. In view of this section, in the case of per--
sons jointly entitled to institute a suit or make an applica-
tion for the execution of a decree, all persons whether
major or minor will get the benefit of the extended period
of limitation so long as any one of them is a minor and so-
long as there is none capable of giving a discharge with-
out the concurrence of the_ other. But that is the result of
substantive law under which one person cannot give a
discharge on behalf of others unless he is an executor or
a partner duly authorised or the manager of a Mitakshara
joint Hindu family. The Madras High Court has taken
the view in Annapurnummu V. Aickayyct (F.B.]3 that one
joint creditor could give a valid discharge so as to bind the
others, basing the argument on section 38 of the Contract
Act. But this View has not been accepted by any of the-
other High Courts and we think that the View taken by
the other High Courts is correct; in this connection, the-
Contract Act may be suitably amended. There is no need
to alter Section 6 for this purpose.
I') 25 Mad. 26.
0) 25 Mad . 43.
U) 36 Mad. 544 (17.3 J.
Is
28. Sub-section 4 of section 6 requires clarification.
For the words: "at the date of death affected by any such
disability", the words "at the date of the death of the per-
son whom he represents" should be substituted, as other-
wise the death of the first mentioned person under disabi-
lity might be taken as the starting point, which will be
meaningless.
29. There is a conflict of decisions on the question whe-
ther when a person under a disability dies, after the dis»
ability ceases, but within the time allowed to him by law
to institute a suit, his legal representative can take advant-
age of the extended period to the same extent as in the
case where the disability of a person continues up to his
death. The denial of the benefit to the representative is
inequitable and should be rectified by a suitable amend-
ment of Section 6.
30. The use of the word "discharge" in section 7 has
given room for the argument that the section applies only
to money claims such as debts, but does not extend to
other rights such as the right to bring a suit impugning
an alienation. All the oourts, however, have adopted a
liberal interpretation of the word as including not only
money claims but also other rights of the plaintiffs includ-
ing rights in immovable property. To make the position
clear we suggest that an Explanation giving effect to the
liberal interpretation may be added as Explanation (1) to
section '3.
31. In this connection, a reference is necessary to an
apparent conflict of decisions on the scope of Section 7.
One line of cases'- held that a suit brought by two brothers
of an undivided Mitakshara family to set aside an aliena-
tion by their guardian, filed more thanthree years after
the elder brother attained majority but within three years
of the date of the younger brother attaining majority was
barred. The other line applied the decision of the Privy
Council in Jowahir Singh's Case' wherein it was held that
the right of the younger son to challenge an alienation of
the father was not extinguished by the omission of the
elder brother to file the suit within the period prescribed
for him. If the cases are examined with reference to their
facts, it will be found that there is really no conflict bet-
{1} Stlfling from 38 Mad. I18 (floraiimrui 0. Nwdfianli}.
(I) 48 All. I 52.
I6
ween them. In the second line of cases, the father was-
alive and was a party defendant in the suit and hence the
elder brother though a major was not in law the manager
and could not give a valid discharge even with the con-
currence of the other members. ln the tormer line of
cases, on the other hand, the father was not in existence
and the elder brother was the manager capable of giving
a valid discharge. The correct position, therefore, is that
if there is a manager capable of giving a discharge and if
he does not institute a suit within the time allowed by
law, the suit by the minor members though instituted
within three years of their attaining majority will be
barred.
32. After the decision of the Privy Council in Jawahir
.S'in.gh"s case, controversy became acute also on the ques-
tion whether in the case of a manager of a Hindu joint
family, it was necessary to establish that the person cap-
able of giving discharge as manager was not only the de
jure but also a de facto manager. There was also a further
question whether to establish that a person was a de ;facto
manager, it was sufficient to prove one act of manage-
ment or more than one act of management and whether
it was necessary that there should be property of the
family other than the alienated property. One view is
that unless it is established that a de jure manager had
also acted as a manager, i..e., was a de fecto manager, he is
not a person capable of giving a discharge £e.g. Gongs
Dayal v. Mani Rm-n).1 The other line of cases would make
it a matter of presumption that a de jure manager has also
acted as a de facto manager (Baktaoatsnlu v. Rao.)3 In our
opinion the former view is the better one, for the reasons
-given below.
33. The "managership" under the Hindu law_ is a crea-
tion of law and devolves according to settled rules. The
power and the capacity to give a valid discharge so as to
bind other members of the [fa-mily are conferred upon the
manager for the reason that he is in possession of the
property of the family and represents the family in all
transactions relating to it. He can incur debts for the
necessities of the family, discharge and realise debts and
receive the income of the family properties. This is so
because he is in possession of the property and is not
C') 31. AIL 156:1:-nDm'I=d in 43 511- I52 P-C- (I353;
(*3 I.L.R. (1940) Mad. 752.
-.n-1'-Id--:
17
merely an agent created by law so as to bind the others"
by giving a discharge in respect of debts either actually
or notionally. It seems to us, therefore, that to clothe '3
de jure manager with power to give a valid discharge so
as to bind others when he is not in possession of any pro-
perty of the family or when the family does not possess
any property will be to jeopardise the interests of the
other members of the family. If he collects the debts and
walks away with the money the other members may have
no remedy against him if he has no Property. The idea
underlying sections 6, 7 and 8 is to protect the minor and
not to place him under a disadvantage. We, therefore,
think that an Explanation should be added making it clear
that the authority of a manager of a joint Hindu family
to give a valid discharge can-,be inferred only when he is
both a de jars and a de facto manager. It would not be
wise to define the circumstances from which a dc focto
managership can be inferred. The question must he left
to the decision of the courts having regard to the facts and
circumstances of each case.
Sections 3, 9, and 11.
34. Sections 3, 9 and 11 do not, in our opinion, require-
any alteration.
Section 10.
35. The word "express" in the marginal note may be
omitted. as the section includes transactions which, though
not express trusts, are deemed to be trusts for a specific:
purpose.
Section 12.
36. It is not possible to prefer an application for leave'
to appeal unless the appellant or the applicant has a copy
of the judgment on which the decree is based. A5 a matter
of practice some courts are allowing the time taken for
obtaining a- copy of the judgment in such cases to be
excluded under section 12 as "time requisite". This
practice may be legalised by introducing suitable addi-
tions to section 12.
3'7. Some courts have taken the view that the delay in
drafting the decree before an application for a copy is
made should be deducted as "time requisite". But we-
.....a...4-aunt---.
..-u 7 .
18
think that a delay of the oflice before the application for
a copy is made should not count in favour of the party. A
suitable provision should be added to make this clear.
3%. In this connection our attention has been drawn to
a practice obtaining an the Original Side of the Calcutta
High Court relating to the drafting of decrees and orders.
The decree is not drawn up by the oficér of the court as
a matter of course; the party has to make an application
for a 'completing 'ties' and 'alter an elaborate procedure
the decree is drawn: up and only thereafter can a party'
apply for a copy of it. It has been suggested to us that
to avoid hardship to the litigants in such cases, the time
taken for drafting a decree should also be excluded in
computing the period of lirmtatio-I1. We have given care-
ful consideration to this suggestion and we are not con-
vinced of the need to make any special provision in this
respect. The'difEicult5' heing due to rules peculiar to the
Original Side of the Calcutta High Court, the appropriate
course would be to alter the relevant rules. We refer in
this connection to the recommendation made in the Report
of the Judicial Reforms Committee for the State of West
Bengal presided over by Harries, C- J. of the Calcutta High
Court. It states: "there are serious defects in the present
procedure of the Original Side' England has largely re-
medied these defects, but here they still remain. "For
example, the procedure for settling decrees andorders
followed on the Original Side is cumbersome to a degree
and frequently the cause of large delay and unnecessary
expense." We endorse this view and we do not know why
this recommendation has not been implemented. We hope
that the necessary changes would be made in the Original
Side rules of the Calcutta High Court, to save the litigants
from the hardship pointed out.
39. As we have provided a period of limitation for revi-
sion applications also, Sui:-sec. (1) should be amended
suitably.
Section 13.
4.0. See. 13 does not, in our opinion, require any altera-
tion. *
Section 14.
41. The Rankin Committee suggested that, following the
language of sec. 11 of the C. P. Code. in see. lie. for the words
19
"cause of action" the words "matter in issue" may be
substituted. The words "cause of action" have the effect
of making the relief too narrow and adequate relief would
be avaiiable if, as suggested by the Civil Justice Commit-
tee, the words "matter in issue" are substituted for the
words "cause of action". We are also of the view that
prior proceedings in a court of Revision should be brought
within the scope of this section. We recommend amend-
ments to section 14 to give effect to these suggestions.
-12. The View has been taken that Order 23 Rule 1(2) of
~C.'.P.C. supersedes this section even in cases where the
grounds of withdrawal are identical with the grounds
under section 14 on which a suit or application could not
be entertained by a court. If the withdrawal is based on
grounds not covered by section 14, the plantifi should not
be allowed to take advantage of the exclusion of time
under section 14. But there is no (reason to deny him that
right when the grounds of withdrawal are those contem-
plated by that section. To avoid this hardship, it is neces-
sary to introduce a suitable amendment in section 14 to
the eifect that if a suit or application is withdrawn on
grounds similar to those specified in that section, the liti-
gant should be allowed to exclude the time spent in pro-
secuting such proceedings. Rule 2 of Order KXHI C.P.C.
should not apply in such cases.
4.3. A suggestion was made that a further explanation
to section 14 should he added extending the scope of the
expression "other cause of a like nature" so as to bring
within its ambit cases where the High Court exercising
its jurisdiction under article 226 of the Constitution re-
jects a petition in the exercise of its discretion on the
ground that the applicant has an alternative remedy by
way of suit. The object of section 14: is to give relief to
a person who institutes proceedings which by reason of
some technical defect are thrown out. If a party know-
ing that he has a remedy by way of suit which has to be
instituted within the period of limitation waits till the
last inoment and considers it better or more convenient
"to have resort to a cheaper remedy by invoking the
jurisdiction of the High Court under article 226 of the
Constitution and the Court dismisses the application on
the ground that the party has another remedy, such rejec-
tion should not he treated as a technical defect by reason
of which the applicant could not obtain the relief he
wanted. He e1_ects between two remedies and the Court
F Jo.-safzilaulve-H
20
rejects the application on the ground that the appropriate-
remedy was by way of suit. There may be cases of suits
or other proceedings in which similar situations might
arise. Thus the supposed hardship is confined to an ap-
plication under article 226 of the Constitution. To accept
this suggestion would be to extend the policy under-
lying the section to cases not contemplated by it. The-
ground suggested cannot be regarded as a "cause of a like
nature".
_ Section 15.
44. Sub-sec. (2) of Sec. 15 provides for the exclusion.
of periods of statutory notices, such as those under sec.
80 of C.P.C. In this connection we may refer to the pro-
visions of sec. 36 and 87 of the same Code requiring that
in respect of suits against foreign rulers, ambassadors and
envoys, the consent of the Central Government should be'
obtained before filing the suit. Generally, it takes a long
time for such consent to be given and the principle behind
the existing provision for exclusion of the period of notices
under section 80 C.P.C. should logically apply to such.
cases also. We recommend that the time requisite for"
obtaining such orders should -be excluded.
45. It is common knowledge that by t-he time a receiver
or liquidator is appointed in insolvency or liquidation
proceedings and the receiver or liquidator after getting
information about the assets and liabilities of the estate
settles down to the task of realising the assets of the-
estate, claims in favour of such estate or company get
barred to the detriment of the persons entitled to the-
benefit of the assets. To avoid this hardship, we think it"
just that in respect of suits on behalf of an insolvent or'
a company in liquidation the period between the date of
the filing of the petition for adjudication or winding up
and the appointment of the receiver or liquidator, and a.
period of three months thereafter [to enable him to ac-
quaint himself with the afiairs of the estate) should be
excluded in computing the period of limitation for suits
by or on behalf of an insolventis estate or the company.
The benefit of this provision should also enure- to any
interim receiver or provisional liquidator.
Section 16.
46. It was held in B. K. Roy. v. Ashutoshi that the ex--
clusion of time under this section would not apply to
(1) a6c.w. It 364.
2' 353-59! zltauns-'n
21
suits governed by article 144. We have now proposed
that the scope of article 144 be enlarged so as to include
matters covered by articles 137 and 138. The exclusion of
time contemplated by this section should apply to all such
suits by an auction-purchaser.
Section 1'3'.
-17. Section 17 is confined to rights of action accruing
after death. There is no reason to restrict the section in
this manner. The Privy Council observed in Meyyoppn
V. Subromonya' that when the cause of action arises in
favour of the deceased person after his death time will at
once begin to run. Some courts have applied the section
to cases where the right accrues on death, as in the case
of partnerships. Section 1'? should be made applicabie
to rights of action accruing on death or thereafter.
Section 18.
48. We think that this section should be recast so as to
include actions based on fraud and also for relief
founded on mistake. In this respect, section 26 of the
English Act is more suitable and that section may be
adopted with suitable alterations. The existing
provision relating to concealment of documents should.
be retained and the protection in favour of bone fide
purchasers for valuable considerations should also be
extended to those cases.
.49. As we are recommending the incorporation of
section 43 C.P.C. in this Act the principle contained
in the proviso to that section in regard to the power of
courts to order execution after the period of limitation
will have to be preserved. We however consider that
the benefit of this provision should be available only if
the application is filed within one year from the date of.
discovery of the fraud.
Sections 19 and 20.
50. The Civil Justice Committee expressed the view
that clause 2 of section 19 is a fruitful source of false
pleas and that the date is an essential a part of the
acknowledgment itself that unless it is in writing like
the rest of the acknowledgment it should not operate to
U) 29. cfW'._N.3=;3 I;P.C.).
23
save the bar of limitation. They therefore suggested an
amendment to that effect to Section 19. We do not think
that this is necessary. In England, oral evidence is
admissible to prove the date and this was recognised in
Edmunds v. Doumes', and Jayne v. Hughes'. Oral
evidence was admitted even to show that the document
was executed after the date which it bore. No alteration
of the law was effected in England by the Limitation Act
of 1939. If all the terms of a document are already in
writing and if the date is missing it would be unjust and
inequitable to deprive a party of the benefit "of relying
upon the document as constituting an acknowledgment
by adducing evidence regarding the date of the document
and thus supplying the omission.
51. The question whether an acknowledgment made
after a transfer would bind a transferee has been
considered by several High Courts and there have been
conflicting decisions. It was, -however, finally decided
by the Privy Council in Bank of Upper India v. Robert
Herecusa that an acknowledgment made by the mortgagor
to the mortgagee after parting with his interest does not
bind the transferee. One would have thought that the
language of section 19 is clear and does not give room for
any divergence of opinion, for it requires that the
acknowledgment of liability in respect of property or a
right should be made in writing signed by the party
against whom such property or right is claimed. It,
therefore, the right is claimed against A, it has to be
established that there was an acknowledgment by him
but that acknowledgment should not be availed of
against B for there was'; no acknowledgment by him.
The law as settled by the Privy Council is in consonance
with the language of the section. We do not think that
any alteration ; is necessary. Part payment under
section 20, however. stands on a- different footing. as the
section states that if there is a payinent by the person
liable to pay the debt, the period of limitation should be
counted from the time when the payment was made but
it does not state that such part payment should be taken
into account against the payer only. It saves the
(1) (1334) 2 Cr. 8: M454.
(2) (23541 In Each. 43¢. See also Mama -.r. Studs! a Wflflrgdon (1915; 2
Ch. 643 at 658 Norton on Deeds (Seccnd Edition, pages 190, 191 ); Hals-
bui-y's Laws of England, 3rd Edition, Voi. 11, Page 403. .
(3) ILR (1942) all. 660.
'5
23
limitation against all persons for the debt, liability or
right. This was pointed out by the Madras High Court
in Thayyonoyaki V. Sundamppa' where the question was
whether a part-payment by a mortgagor who sold his
equity of redemption but was liable on his personal
covenant could give a fresh stagting of time against the
purchaser of the equity of redemption. The answer
was in the afiirmative and in support of that View the
decision of the Privy Council in Lewtn V. Wilson? was
relied on. No alterations in section :19 and 20 are
required in this respect.
52. Sections 19 and 20 apply to execution applications
also, as has been made clear in the Explanations to those
sections. We recommend the deletioniof -Articles 182
and 'IE3 and the substitution of the provisions of Section
48 of C.P.C. As it is our intention that the time
limit of 12 years laid down by that Section should be
absolute subject to the exce-ption therein, we are of the
view that there should he no scope for extension of
time by acknowledgments and part payments; in respect
of execution applications. Sections 19 and 20 should be
amended suitably.
Section 21. ~
53. Section 21 was amended in 192'? as a- result of the
report of the Civil Justice Committee and does not require
any further change.
Section 22.
54. we consider that an omission to implead a person
owing to a bow: fide mistake should not deprive the
plaintifi of his rights against that" person. Relaxation
of the law of limitation providing for such mistakes in
good faith have been recognised in Section 14 and
elsewhere. Section 22 should be amended to exclude
from its operation cases where due to inadvertence and
in good faith there has been non-joinder of parties.
Sections 23, 24 and 25.;
55. These do not in our opinion require any alteration.
fz){I) I.L. R. 1942 Mad. soS.- ""
I I AL 630
u >.I{Ze..:1-
=24
Sections 25 and 27.
55. These sections apply to States to which
Easements Act has not been extended, i.e., to States other
than Andhra, Madras, Bombay, Madhya Pradesh, Coorg.
Delhi and Uttar Pradesh. We consider that uniformity
should be secured by extending the Easements Act to the
whole of India. If this is done there would be no need
to retain sections 26 and 27 of the Limitation Act. We
recommend accordingly.
Section 28.
57. Section 28 deals with the extinguishment of rights
and it applies to all property immovable and movable-
unlike in England where the rule df_ prescription applies
only to immovable property. The section requires. no
change. 1.
Section 29.
53. Sectioh 29(1) provides that Section 25 of the Contract
Act which permits a barred debt to be regarded as valid
consideration for a contract, is not afiected by the
Limitation Act. This may be retained.
59. The combined operation of sub-clauses (a} and (b)
of subsection 2 is that so far as special and local laws
are concerned, only sections 4, 9 to 18 and 22 of the Act
apply and that too subject to such modifications as may
be prescribed. We consider that there is no need for
this restriction and that the principles contained in
sections 4 to 25 should be made applicable to all special
and local laws, leaving it open to the legislature to
exclude the application of any or all of these sections, in
any given case.
30. Sub-section (3) makes this Act inapplicable to suits
under the Divorce Act, 1869. There are other Acts like
the Parsi Marriage and Divorce Act and the Special
Marriage Act, dealing with marriage and divorce. The
reasons for excluding proceedings under the Divorce Act
1869 are equally applicable" to proceedings under these
other Acts. We recommend that the sub-section may be
amplified to include all Acts relating to matrimonial
causes. The Acts to be included may be specified when
drafting the amendment to the section.
61. Subsection (4) of this section would become
unnecessary and may be deleted if. as we recommend.
sections 26 and 2'? are repealed.
the
2 II," .fln.flaIh, '
Saving Provision.
62. A saving provision has to be made.in the new Act
to provide for the transitional period. This may be
framed on the lines of the similar provision made in 1908,
providing a- sufficient time for the change over. Appendix
I to this report shows the effect of our proposals on the
existing periods of limitation for suits, appeals and
applications. The period has been reduced (a) from 6
to 3 years, (lo) from 12 to 3 years, (c) from 60 to 12 years
and (d) from 60 to 30 years. In the case of appeals the
period has been made uniform by reducing it in very
many cases to 30 days. In the case of applications also
the periods have been altered. In cases where the
period is increased but the cause of action has already
become barred under the existing law the new Act will
not have the effect of reviving rights arising out of such
causes of action in view of Section 6 of the General
Clauses Act. But in cases where the period is reduced
it will be inequitable and unjust, if no provision is made
to obviate the resulting hardship. The period that
should be allowed in such cases is a matter of policy and
may be decided by the Government. We have not,
therefore, made any suggestion in this behalf, except in
the case of suits for redemption. in respect of which our
proposal is contained in paragraph 129 of this report.
PART III--ARTICLES
Cnarrsn III----GENE1uL
63. The existence of so many articles in the Limitation
Act has undoubtedly made the subject very complex and
has also been responsible for confiict of judicial decisions.
All this can be avoided, firstly, by classifying -the articles
on a rational basis and secondly, by prescribing a uniform
period of limitation for suits or proceedings of the same
nature. It is, of course, not quite easy to classify the
articles of the Act in water-tight compartments but a
broad categorisation should be attempted if simplification
is to be achieved. In the present Act, the articles are
grouped according to the periods prescribed. This is
neither rational nor convenient. A proper approach
would be to adopt the subject-matter as the basis of
classification. A perusal of the articles relating to suits
reveals that most of them fall under distinct subjects. It
the articles are grouped subjectwise and a uniform
. r 9. n-.-aa.1.,-v : - ------ ~ '---\----*'-'~'' '
:5
period is fixed for suits of the same nature We would have
achieved a considerable measure of simplicity. Similarly,
as regards articles relating to appeals and applications, it
would conduce to simplicity if uniform periods are pres-
cribed as far as possible.
I54. Taking as an illustration the articles relating to
suits on contract and tort, it will be found that they ac-
count for as many as 81 of the 149 articles relating to
suits. If. therefore, adopting the English model a single
provision is made for a-11 such suits with a period of three
.'»'ears from the date of the accrual of the cause of action,
we would be able to eliminate as many as 80 articles.
The most important point to consider in this connection
is whether the existing entries in column 3 of the first
schedule to the Limitation Act, i.e., the dates of the starting
point for limitation admit of such treatment. In this
connection, it is necessary to hear in mind that the Limi-
tation Act is not a Statute which creates a cause of action
or confers a right of suit; these are matters which are
governed solely by the substantive law. It is not, there-
fore, permissible in a statute of limitation to provide a
starting point for limitation which does not correspond
with the date of the accrual of the cause of action under
the substantive law. 'We, therefore, propose that all
articles in which the date in column three coincides with
the accrual of the cause of action should be grouped to-
gether and the date of the accrual of the cause of action
he specified as the starting point of limitation. Where,
however, the two dates do not coincide, the existing article
should be retained with such changes as. may he neces- _
sax-_v.
65. At the outset it is necessary to consider what is
meant by the term "cause of action." The principles for
determining when the cause of action arises in any parti-
cular case of contract or tort have been fairly well settl-
ed in England and in India. The expression "cause of
action" has been defined by Viscount Dunedin (Vide:
Board of Trade v. Coyzer Irvine Co., Ltd.1) as meaning
"that which makes action possible." In the leading case-
of Read v. Brown'-' Lord Esher defined it as:
"Every fact which would be necessary for the
plaintiff to prove it traversed in order to support This
"s" ;;:.j 7T5?-,-)"X:."'eTo'Et':'iT,-.-
12.} U333') 22 Q.B.D. I28.
27
right to the judgment of the court. There must be a
plaintiff who can succeed and defendant against whom
he can succeed."
[See also Reeves V. Butcher1 and Coburn v. College?)
The courts in India have adopted the above definition
e.g., A Hraalt V. Kant? It is best to adopt an objective
test rather than enact a definition. It must he left to the
courts to determine what constitutes the cause of action in
each case applying welbestablished principles to proved
facts.
66. A question may be raised whether the removal of
the detailed entries in the first schedule of the present
Act, is not likely to open up fresh avenues of litigation.
it may however he pointed out that under the Code of
Civil Procedure the Court is under a duty to determine
whether the plaint discloses a cause of action andlif so.
the place at which such cause of action arose to sustain
its jurisdiction to entertain the suit. Further, what con-
stitutes the cause of action for the several categories of
suits has already been settled by the substantive law and
it will not therefore be difficult for the Court, which has
thus necessarily to go into the question of the cause of
action, to determine the date of its accrual by applying
these settled principles of law. It seems to us, therefore,
that the apprehension that the alteration in the law would
give rise to new controversies is not justified.
6'1'. We may also refer to one other aspect of the Ii.riatt§11'
which may he raised as an CIl)]EClJl0n to our propose} =~- I1
the process uf evolving a uniform period of l.l1'l'1l't8lIOI'l tor
su'ts of the same nature, it 15 necessary t" increase the
existing periods in some cases. This is inevitable, if 3
{miform period is to be prescribed for suits of the same
As pointed out above, such uniformity will put
an end to the Ever arising conflicts under the existing law.
Further an increase in the existing Period is not likely 1:0
work "riy hardship as it does not Prevent the Plaintiff from
filing 3 Suit on any earlier date if he so desires.
as. The articles in the Act fall _ii_nder tlireef divisigrifé
viz., (i) Suits no appeals $2 (mi APP1°"'°"S-
I31!-1E'l1I'E'.
''--(I.) (2891) 2 Q-B-I1 SO9-
{z} (1997) I Q-B-D 3'03-
(3.l do Ca]. 913.
s ,_=.s-ssiztuwiia-ii '
28
articles relating to suite can be grouped under:
I. Suits relating to contract and tort;
II. Suits relating to movable property',
III. Suits relating to trusts and trust property;
IV. Suits relating to immovable property, including---
(3) Suits relating to Mortgagesand charges, and
(b) Recovery of possession;
V. Suitsbased on other claims Le. suits
(a) for accounts,
(b) for declaration,
{:2} for setting aside instruments,
(cl) for relief on the ground of fraud and mistake;
8: VI. Residuary article, providing for suits which do not
fall under the above desr:riptions_
We proceed to examine the articles on the basis of the
above classification.
CHAPTER IV---Sorrs or conraacr AND roar
above classification.
69. In the light of the discussion in the previous
chapter, our recommendation is that for all suits on con-
tract and tort the period of limitation should be three
years from the date of accrual of the cause of action, In
the succeeding paragraphs of this chapter we proceed to
examine in what manner the articles of the Limitation
Act relating to contract and tort can be grouped. The
articles relating to contract including implied contract
and quasi-contract are, 7 to 9, 30, 31, 43, 50 to 34, BE,
37, 97, 99 to 102, 107 to 111, 113, 115. 116 and 131.
Arts 7-, 1'0. Article 7 provides a period of one year for recovery
1°15' 3°'-oi wages of a household servant, artisan or labourer
and time starts from the date when the wages accrued
due. Along with this article, articles 101 and 102 which
provide for seamerfs wages and for wages not otherwise
expressly provided for may be considered. In the case
of seamexfs wages the';-eriod provided is three years
and time runs from the end of the voyage during which
the wages are earned- Article 102 is the residuary
article for wages providing a period of three years from
the date. when the wages accrued duel These three
E .53-$9121 lam' 5'6-3'7
1-9
:articles relate to suits o.' contract i.e., contract of ser-
vice. Under the substantive law, the cause of action for
recovery of arrears arises when the wages accrued due.
'Under article 7 which provides a shorter period of limi-
tation, questions have arisen and troubled the courts
-whether a cook is a household servant, whether a lay
man employed to work in a ship or a person employed
"to assist a salesman in a dealer's shop or a bus conductor
is an artisan or labourer, to determine whether the
shorter period under Article 7' or the longer period
=unde1' the residuary article applies. The attempt of the
plaintifi is naturally to obtain advantage of the longer
-period under the residuary article (Art. 102) while the
defendant endeavours to get the benefit of the shorter
period under article 7. If a uniform period is laid down
this confiict can be avoided. The cause of action is the
breach and it arises on the date of breach. This is the
time from which limitation begins to run. In the case
of seamen the cause of action for the recovery of wages
does not accrue until the voyage is completed. This was
settled long ago in Hyde v. Partridge.' Section 2 (El of
the English Limitation Act of 1939 provides that sub-
section 1 of section 2 of that Act should apply to sea-
men's wages though it is an action enforceable in -rem.
It is treated as an action founded on contract for which
a unifornri period of limitation of six years is provided.
Under the Indian Law, the remedies available for the
recovery of a seamen's wages are:--
{1} Under section 63 of the Indian Merchant Ship-
ping Act, 1923, he has a right to recover wages
in a summary manner before a magistrate pro-
vided the amount claimed does not exceed
Rs. 500. He has a lien on the ship for his wages.
{2} When the claim is less than Rs. 500 he can sue
in the Court of Small Causes and when it EX'
ceeds that amount, in the ordinary civil courts.
It is for the second class of remedies that article 101
provides a period of limitation of 3 years from the ter-
mination of the voyage. Under article 102, the wages
become payable only when they accrue due and it is on
that date that the cause of action arises. All these three
articles, therefore, relate to suits founded on contract
and the time when limitation starts for these suits
" (I) {I7o6)=R:om1. I204-
_555 Law---3.
3,0
coincides with the time when the cause of action accrue:
under the substantive law.
'71. Article 8 provides a period of one year for the
Ierovery of price of food or drink sold by the keeper
of a hotel or tavern and the cause of action arises when
the food or drink is delivered. Article 9 provides a
period of one year for a suit to recover the price of
lodging and the cause of action accrues when the price
becomes payable. These are also actions founded on
contract and the cause of action arises when the food or
drink is delivered or when the price of lodging becomes
payable. There is no particular reason for providing a
shorter period of limitation for these cases and for not
bringing them under the_ uniform period of three years.
72. Article 30 is for a suit against a carrier for loss of
or injury to goods and the, cause of action accrues when
the loss or injury occurs. The period of limitation is
one year. Article 31 is for a suit against a carrier for
compensation for non-delivery of, or delay in delivering,
goods and the cause of action arises when the goods ought
to be delivered, the period of limitation being one year.
The liability of a common carrier not being a railway
owned by the State or by a private person is governed
by the English common law as modified by the Carriers
Act, 1865. His liability is to some extent a_fl'ccted by the
Contract Act which was enacted subsequently. This
was settled by the Privy Council in Irrawady Flottilla.
Co._v. Bhrigwcm. Dds-.1 The liability of a railway is, how-
ever, governed by section 72 of the Indian Railways
Act, which expressly negatives the application of the
English Common law and the Carriers Act (III of 1865)-
Though by the definition of a common carrier in section
2 of the Carriers Act, a State-owned railway is excluded
from the purview of the Act, articles 30 and 31 are appli-
ed to all carriers whether common carriers or State-own-
ed railways or privatelynwned railways. The langu-
age of the articles clearly indicates that they apply to
suits based on contract as well as on tort. The cause of
action accrues on and coincides with the time indicated
in the third column of the 1st Schedule to the Limitation
Act. If the same period is prescribed for suits founded
on contract as well as tort much of the discussion relat-
ing to the basis of the suit, as to whether it is founded on
1 18 Cal. 620. 'T'
3!
contract or on tort, would become unnecessary. The period
of one year is undoubtedly too short and-should be made
three years. In the case of railways, it is' common
knowledge that a long time is spent by 'the con-
signee in correspondence with the railway autho-
rities and it is only after a long-drawn correspondence
that the aggrieved party files a suit. j'he'Carriage by
Air Act {XX of 1934) by rule 29 of the First Schedule
provides that the right for damages for non-delivery of
goods shall be extinguished if an action is not brought
within two years from the date of arrival at the desti-
nation or from the date when the air--craft ought to have
arrived. This rule is based on international conventions
and should not be altered. Article 3 of the First Schedule
to the Carriage of Goods by Sea Act (XXVI of 1925} prev-
vides that the provision in the rules shall not affect the
rights and obligations of the carrier under any statute
for the time being in force relating to limitation of the
liability of owners of sea-going vessels. This provision
also need not be altered.
73. Article 50 relates to a suit for the recovery of hire
of animals, vehicles. boats or household furniture and a
period of threeyears is provided. Time starts when the
hire becomes 'payable, which Is also the time when the
cause of action accrues. This is clearly a suit on con-
tract but it is immaterial whether the suit falls under
the article relating to contract or under the residuary
article as the period will be three years in either case.
74. Article 51 relates to a suit for the balance of
money advanced in payment of goods to be delivered.
A period of three years is provided and the time begins
to run when the goods ought to be delivered. Article 5?.
relates to a suit for the price of goods sold and delivered.
where no fixed period of credit is agreed upon and the
time runs from the date of the delivery of the goods;
the period is three years. Article 53 is for the price of
goods sold and delivered to be paid for after "the expiry
of a fixed period of credit. Time begins to run when the
period of credit expires according to the terms of the cont-
fact. Article 54 is for the price of goods sold and delivered
to be paid for by a bill of exchange, no such bill being
given. The period of limitation is three years and com-
mences when the period of the proposed bill elapses. All
these four articles relate to the sale of goods and the
event from which time begins to run is fixed according
an
.'\.rLs._-55 3: 5r':-
Arls. 57-58
33
to the terms of the contract either when the goods ought
to have been delivered or when they are delivered or
when the period of credit expires or when the period of
the proposed 'bill of exchange elapses. The event, on
the happening of which the time starts, is identical with
the time when the cause of action accrues under the
contract. There is no necessity, therefore, for these se-
parate articles.
75. Article 55 is for the price of trees or growing crops
sold by the plaintiff to the defendant where no fixed
period of credit is agreed upon. Naturally, the time runs
from the date of sale. Article 56 is for the price of
work done by the plaintiff for the, defendant at his re-
quest, where no time has been fixed for payment. Time
begins to run when the work is done and the period
'JS three years. These two cases also are instances of a
Dreach of contract and the cause of action arises at the
moment specified in the Act as the starting point for
limitation.
T5. Articles 57 'and 53 relate to money lent by a
cheque. In respect of both of th"m the time of accrual
of the cause of action coincides with the time from
which the period of limitation begins to run. A cheque
is paid when it is cashed by the lender's bankers. It is
only the-n that the money passes 'from the lender to the
borrower, and, therefore, time is made to run from the
moment when the cheque is paid. Mere giving of the
cheque by the lender to the borrower does not amount
to payment.
77. Article 59 is for money lent under an agreement
that it shall be payable on demand and the period of
three years begins to run when the loan is made. In
the absence of a special condition, when money is lent
the debt becomes due immediately and the fact that
money is payable on demand makes no diiference. This
was settled very early in Norton V. EIlam.'- The demand
is not treated as an essential part of the contract and
time is made to run from the date of the loan and not
from the date of demand. The article can, accordingly,
be merged with other articles dealing with contracts.
'F3. Article 60 relates to deposits of money including
in-imey of a customer in the hands of his banker and
1 (13:17) 2 M&W 461 (See also 20 I-Ials., and Edn., pp. 604 8: 6:15).
1 yuaunu-x Ci. --
-s
- cause of action
33
provides a period of 3 years from the date when the
demand is made. In the case of deposit, the cause of
action arises, when a demand for payment is made. In
the case of a current account it has now been settled by
the Court of Appeal in England {Joachiwnson v. Swiss
Bonk)' that it is a term implied in the relationship of a
banker and customer that demand is necessary. The
question was also considered by the Privy Council in
Mohamed Akbar Khan v. Artur Singh3 and Suleiman
Haji v. Haji. Abdmllafi and it may, therefore, be
taken as settled law that in the case of a customer's
current account with a bank, the cause of action does
not accrue and the time does not start until the demand
is made by him upon the bank (Vida also 20 Hals. 2nd
Ed., p. 610). The substantive law, therefore, settles the
and the time from which it accrues
coincides with the entry in the third column.
79. Articles 61 and 62 do not relate to express con-
tracts. Article 61 applies to 'cases in which a plaintiff
would be entitled to recover money paid by him for the
defendant to which sections 69 and 70 of the Contract Act
apply. It has been held that this article applies to cases
of contribution between co-debtors but not between joint
debtors in respect of which artic1e'99 makes a provision.
Article 6?. relates to what in England is known as action
- for 'Money had and received'. As Lord Mansfield puts
it,
"It is a kind of equitable action and lies when the
defendant has received money which in justice and equity
belongs to the plaintiff under circumstances which
render a receipt by the defendant for the use of the
plaintifi".
This action was discussed by the House of Lords in the
well known case of Sinclair v. Brougham'. The action is
T treated as based on an implied contract and therefore falls
within the proposed definition of contract. For both these
, articles, the starting point of limitation coincidw with the
accrual of the cause of action.
Ar'!
61 & 52¢
30. Article 63 deals with the payment of interest on A.¢_53.
the money due from the defendant to the plaintifi. This
; 1921(3) K.B.IIo.
= I.L.R. I7 Lal-1. 551.
' E1940) Kat 277.
' 19:4) A.['.!. 393.
34
can only be under the terms of a contract between _the
_puI'tieS and the time at which the cause of action arises,
1.212., when the interest becomes due, coincides with the
time when the period of limitation begins to run. If the
contract is a registered contract, article 116 would apply
This makes it clear that the suit is based on contract.
81. Article 64 relates to suits on "account stated"
between the parties, and time begins to run when the
accounts are stated in writing signed by the defendant or
his agent duly authorised in this behalf, unless where the
debt is, by a simultaneous agreement in writing signed as
aforesaid, made payable at a future time and in that
event limitation starts when the time arrives. The "ac-
count stated" does not extinguish the original debt.
The account stated may arise from a mere admission of
the debt as correct or out of an agreement for considera-
tion such as by reduction of the amount or from striking
a balance by setting off debts against credits. The origi-
nal debt and its acknowledgment or a fresh agreement
to pay are undoubtedly contractual obligations. In Sequin:
v. Noronhal the Privy Council described it as "a promise
for good consideration to pay the balance". It may also
be considered as a settlement from which arises a pro-
mise to paythe balance shown in the account which consti-
tutes the consideration for the contract (Bishan Chond V.
Girdhtrri Lot)? The transaction contemplated by article
64 differs in some respects from an acknowledgment under
section 19 of the Limitation Act and an express promise
contemplated by section 25 of the Contract Act. An
"account stated" is always the result of mutual agreement
between the parties. It implies a promise to pay and the
promise need not be expressly stated. As Blackburn .'I.,
observed in Loycock V. Pickles' the real account stated is
when several items of cross claims are brought into
account on either side and being set against one another a
balance is struck and the consideration for the payment
of the balance is the discharge on either side; each party
resigns his own rights on the sums he can claim in consi-
deration of a similar abandonment on the other side and
of an agreement to pay and to receive, in discharge of the
balance found due. Such an account stated when in writ-
ing and signed by the defendant or his agent is tant-
"}T'i?q1i3' a.c_P. 332.
2. 56 All. 376 P.C.
3. (I833) 33 L]. (Q.B.}4:-1
35
amount to a new contract and is a substantive cause of
action in itself and a suit can be maintained on it. This
establishes that a suit on an account stated is really a suit
founded on a contract and the cause of action arises at the
time specified in the Limitation Act for this article.
82. Article 65 refers to a suit founded on contract. The
suit is for compensation for breach of a promise to do
anything at a specified time or upon the happening of a
specified contingency. Naturally the cause of action arises
only when the specified time arrives or when the specified
contingency happens. This is the starting point of limi-
tation stated in the third column.
83. Similarly, article 66 provides for a suit on a single
bond where a day is specified for payment and time
begins to run from the said date. According to the terms
of the contract. the cause of action will arise only when
the specified day arrives.
84. Article 67 provides for a suit on a single bond,
where no date of payment is specified and the cause of
action arises on the date of the execution of the bond,
which coincides with the starting point of limitation.
35. Article 68 relates to a suit on a bond subject to a
condition and provides a period of three years from the
date of the breach. Being a conditional contract, it is
obvious that until the condition is broken there is no right
of suit. The two dates therefore coincide.
86. Article 69 relates to a suit on a bill of exchange or
promissory note payable at a fixed time after date. The
cause of action arises when the bill or note falls due and
that is the time from which the period runs under the
Limitation Act [vide 20 Hals. II Edn. p. 606. See sew.
22, 23, 25, of the Negotiable Instruments Act}.
8?. Article T0 deals with a suit on a bill of exchange
payable at sight or after sight, but not at a fixed time and
time starts when -the bill is presented. Unless the bill
is presented there can be no cause of action, because it is
presentation that gives rise to it (See section 61 of the
Negotiable Instruments Act].
88. Article 71 refers to _a suit on a bill of exchange
accepted, payable at a particular place, and time begins
Ir} um when the hill is pi-esentcd at the place and that is
F _E:A*5"I'.I'1.I'i.:i.'.-1-752'-3'.
Art. 65.
Art. 56.
Art. 61.
Art. 68.
Alt. 69.
Art. 70.
Art. 71.
A173.
.'. rt. 73.
Are. 74.
Art. 15.
36
the cause of action as presentment at that place is .esIen---
tial under the Negotiable Instruments Act. (See Sectioln
E1 of the Negotiable Instruments Act).
39. Article '12 is for a suit on a bill of exchange or pro---
missory note payable at a fixed time after sight or after
demand. When the fixed tirne expires the cause of Ictinll
arises and time begins to run from that moment. (See-
sections 23 and 24 of the Negotiable Instruments Act.)
90. Article '13 relates to a suit on a bill of exchange
or promissory. note payable on demand and not accomv
panied by any writing restraining or postponing the right
to sue. Time runs from the date of the bill or the note
which also corresponds to the date of cause of action.
91. Article 74 relates to a suit on a promissory note or
bond payable by instalments. Time starts from the expi--
ration of the first term of payment-as to the part then
payable; and for the other parts, the expiration of the
respective terms of payment. The general principle or!'
law is that when under a contract money is payable on a
particular date the cause of action arises on that date.
The two dates accordingly coincide.
92. Article 75 relates to a suit on a promissory note or
a bond payable by instalments which provides that if a
default is made in payment of one or more instalments,
the whole shall become due. The cause of action arise:
when the default is made, except where the payee or
obligee waives the benefit of the provision. In such 1
case the cause of action arises when -a fresh default is-
made. In the case oi an instalment 'bond, which provides I
penalty in case 'of default, it is accepted law that it it
open to the payee or obligee towaive the default and
wait for the next default. which gives rise to a tread: "cause
ufaction. The dateincolurnn3eot1-esporidsto the ac-
crual of cause of action. '
93.A.rtic1e7flrel:atestoaauitonapromissory note
givenbythemakertoathirdpersonlnbede1i1reI'edlwothe-
payee after the happening o-fa certainevent. Tilneitlrb
fmrnthedateofdelivery tothepayee. 'I'h1aI1tiele in
hasedo-nsanoyev. Aldren.' Tllzcoincidenceotthe t-urn
dates exists here.
D-I.Artic1e'l"l'relatestoaIuitonadi1honom'edtereip'
billwhereprotesthmheennnldealrlnotlceulven. 'line.
1. rglut. 197.
r .-an-59I2;'I.n-Hi-:7
3'?
begins to run when the notice is given and that gives rise .'
to the cause of action. See Whitehead v. Walker.'
95. Article '18 is for a suit by the payee against the
drawer of a bill of exchange which has been dishonoured
by non-acceptance. The cause of action is afforded by
the refusal to accept and time starts from that date.
96. Article T9 is for suits by the acceptor of an accom-
modation bill against the drawer; -the cause of action
arises and time also runs from the date of payment by
the acceptor of the amount of the bill. The accommoda-
ting party has a right of indemnity agamsl. the party to
whom he lent' his name {Padmaloohmt Pater V. Girtsh
Chandra)! This is a case of implied contract.
97. Article 36 relates to a suit on a bill. of exchange,
promissory note or bond not expressly provided for in
the Act. The period is three years from the date when
the bill or note or bond becomes payable. This is a
residuary article which provides for cases not governed
by the previous articles and here, too. the date of cause
of action coincides with the starting point of limitation.
This one article would have been sufllcient to cover the
other articles above referred to. relating to bills of ex-
change or promissory notes or bonds.
98. 'I'_hen we have a group of articles relating to con-
tribution. Article 81 is for a_ suit by a surety against the
principal debtor and time begins to run when the surety
pays the creditor. Article 82 is tor a suit by a surety
against a co-surety and time runs from the date
when the surety pays anything in EXCESS of
his own share. In these two cases the event on
the happening of which the cause of action arises
under the substantive law coincides with the time
from which the period begins to run. Under section
145 of the Contract Act the law implies an obligation by
the principal' debtor and a co-surety to indemnifi the
surety and liability arise: by reason of an implied obli-
gation." Sections 1-16 and 147 of the Contract Act pro-
vide for payment of the amount by auction. Article 33
is for suits onany other contract to indemnify and the
at'a'1-ting point or limitation, as -also of the accrual of the
E3 516343: at." fir'. goaihfiea :n?§;":s:.
Art. '15
Arnie.
Am.
St-I5.
Art. 34.
Art.
Art. 87.
an. 43- 01.
33
cause of action under the substantive law, is when the
plaintiff is actually indemnified.
99. Article 34 is for a claim by an attorney or vakil
for his costs of a suit and the cause of action accrues on
the termination of the suit or business which corres-
ponds to the date in col. 3. This is a contractual obliga-
tion implied by law.
100» Article 86 is for recovery of money under
an insurance policy. The plaintifi would be entitled
to recover, in the case of a policy of life insur-
ance, from the date of the death of the deceased
and in the case of other policies, the date of the occur»
rence causing the loss. [The article has no application
to endowment policies payable after a particular date]
This is also a contractual obligation and the time from
which limitation begins to run synchronises with the
date of the accrual of the cause of action.
101. Article 8'? relates to a suit by the assured to re-
cover premia paid under a policy voidahle at the elec-
tion of the insurers and the time begins to run and the
cause of action accrues when the insurer elects to avoid
the policy. In a case in which there is a contract which
becomes void, section 65 of the Contract Act imposes an
obligation to rerun-cl the benefit. This may be also treat-
ed as an action for money had and received (Mormlrort
v. Universal Mercantile In.-m.rance.}'
102. Articles 43_.9"a',99,l0D 8: 107 to 109 relate to suits
99= "'° 5' not based on express promises but on obligations ixnplied
107-109.
.-'..--1. no.
or imposed by law which we have brought under the
definition of contract. In all these cases. the cause of
action crises on the dates on which limitation starts
under the Act.
103. Article 110 is for the recovery on'. arrears oi rent
and time begins to run when the arrears become due, the
period of limitation being 3 years. The contract of least
may be express or implied. It may be inferred from
mere occupation oi property. It in a suit based on can':-
ract and the time when the cause of action arises coin-
sides with the starting point of limitation.
104. Article 111 is for a suit by a vendor of immov-
'lo property for personal payment of unpaid purchase
"oney. No charge is claimed and the suit contemplated
I. it Exr'F{.i2<.
.7. nun...-cu.-5.. V
39
is a mere personal action. The suit is founded on contract
and the money becomes payable at the time fixed for
completing the sale, or where the title is accepted after
the time fixed for completion, on the date of accept-
ance of the title. This corresponds with the date of the
starting point of limitation.
105. Article 113 is for a suit for specific performance
of a contract. Such a suit is based on contract and the
date of accrual of cause of action coincides with the
starting point of limitation. Article 115 is a residuary
article for breach of a contract and time starts when the
contract is broken or where there are successive
breaches, when the breach in respect of which the suit
is instituted, occurs, or when the breach is continuing,
when it ceases. These dates also correspond with the date
of the accrual of the cause ofaction.
105. Article 116 provides for compensation for breach
of a contract in writing and reg's1.ered and a period of
six years is provided; time stars when the period of
limitation would begin to run in a suit brought on a
similar contract not registered. It has been held by the
Privy Council in Trtco-mdas Coooerfi v. Shri Gopi Nath:
that the word "compensation" not used in this
article in._thé___ sense oi' ,muiq'u'rasted_dsmages and that
it also applies' to recovery" ofa liquidated amount, as- for
example, rent under a lease. If the; contract 'héppensfwtp
Am :1;
115.
ArI.1:6&l
13
be a registered contract, theperiod of limitation is c
tended to' sixflyears, runs from the event men-
tioned in column 3 of the Schedule to the Act," This
article has been applied to J!£I1}'r1Ik_:'=n_,1"=-cases CQ'if_EVI"L'd"
other specific articles where " the ". contract is register_sd.,=s
-.r.rnich_ is an indication that all thosesuits are founded
on contract. Article 131 also relates to suits on contract
107. If simplification is desirable, as undoubtedly it is,
all the above--mentioned articles may be omitted and a
provision may be made as in the English Act, that in
case of suits founded on contract, time runs from the
date on which the cause of action accrues and a uniform
period of. threeǤr-ears may be '-'prescribed. It is not neces-
sary to retain the period of '_j'-,ye.u's'in case of registered
contracts-5 - the analogy 1' specialty debts under
: .- LL LR. 44'-ca. -:59 {P .o3
Art. 2.
40
Cum:-an IV----Surrs Foo:-men on roar
103. What has been stated in paragraphs 64 and 69'
above, applies equally to the articles governing suits on
tort. It will be found from the discussion which follows
that all the articles relating to suits on torts can be
grouped together and brought under one head, providing
a oeriod of three years limitation from the date of the
accrual of the cause of action. These articles are;
Articles 2, 19 to 29 and 32 to 42.
109. Article 2 is for a suit for compensation for doing
or for omitting to do an act alleged to be in pursuance
of any enactment in force for the time being in India,
The period of limitation is 90 days and time begins to
run when the act or omission takes place. This article
is intended to cover the case provided for in England,
by section 3 of the Public Authorities (Protection) Act,
1893. The provisions therein are somewhat elaborate
and the period oi limitation is six months. The object
of the Legislature in England and in India seems to be
to provide a shorter period of limitation in the case of
actions against public authorities for any act done in
pursuance or execution or intended execution of any Act
or of public duty, or authority, or in respect of any
neglect or default in the execution of such Act, duty or
authority. It protects the public authorities by providing
a shorter period of limitation. It has been held that so'
long as the officer concerned acts honestly and bone fade,
he gets the advantage of the shorter period of limitation-
If the statute authorises the injury, no action lies. If
an officer purporting to act, in pursuance of a statute.
does something which causes an injury or by reason of
his omission to do an not an injury results, the person
so injured is entitled to claim compensation for the
neglect or default. If he abuses the power, the shorter
period of limitation will not apply and the action will be
outside the article. The law in England was altered by
the Limitation Act of 1939 {Section 21) which provided
a period of one year instead of sis: months. Time was
made to run from the date of the accrual of the cause of
action instead of from the act or neglect or default
complained of, as under section B of the Public Authorities
(Protection) Act. Owing to public agitation, the English
Limitation Act was amended in 1954 and the period of
limitation was increased to three years for actions relating
to personal injuries. By the amending Act, Section 21
. ...__;sc..-,.
{I
01 that Act was repealed and a proviso to subsection 1
of section 2 was added, cutting down the period of six
years, which applies for actions founded on torts. to three
years in such cases. The period, therefore, under the
English law for actions on tort as respects personal
jnjury, whether caused by a private individual or by a
public authorityris now three years instead of six years
-as in the case of other actions based on tort. This
article would come under the general provision ior all
.suits on tort for which we propose to prescribe a period
of 3 years from the date of accrual of the cause of
action. There does not seem to be any justification for
making in distinction between public iiuthorities and a
"private citizen except in matters like notice under sec-
tion an C.P.C. Further, ii a shorter period for suits against
public authorities is prescribed, it will compel parties to
rush to a suit without eflfhausting the possibility of getting
redress by negotiations which necessarily take time. One
-of us, Dr. Sen Gupta, is inclined to take a different view
and has added a separate note to this Report on the sub-
ject. After a full consideration of_ his views we think that
the consideration mentioned above in favour of a uniform
period for suits against public authorities and private
citizens should prevail and that no change is needed in
'the proposals suggested above.
110. Article 19 provides for suits for compensation for Al'l:.I9.
fialse imprisonment,' a period of one year froin the time
the imprisonment ends. This is a sdit based on tort.
It is a continuing wrong within the meaning of
section 23 of the Limitation Act and terminus ad quem
is reached when the imprisonment ends.
111. Articles 20, 21, 33, 34 and 35 may be considered Am ,3, 5; _
together. 34 "4
112. The Maxim of English law "octio per.-ionolis mort-
tur cum persona" has been modified in India by various
Acts. The Fatal Accidents Act provides that in the case of
death of so person injured by a wrongful act, neglect or
-default, as right of suit accrues to recover damages for
the benefit of the wife. husband, parent and child, if any,
«of the person who dies. But the suit has to be
instituted in the name of the executor, administrator
-or representative of the deceased person. Under the
'Legal Representatives' Suits Act, XII of 1855, the executor,
a-dmnustrator or representative of any deceased person
has been given a right to bring a suit for a wrong com-
mitted in the life time of such person which occasioned
pecuniary loss to his estate, provided the suit was in ree-
pect of a wrong committed within one year before the
death. Death will not abate any cause of action relating to
loss or damage to property. The damages recovered form
part of the estate of the deceased. A suit may be maintain-
ed against the executor, administrator or representative of
the deceased for any wrong committed by him in his life
time for which he would have been subject to an action if
the wrong was committed within one year before his death.
Section 2. of that Act further provides that the death
of either party to a suit shall not abate the suit. Section
396 of the Indian Succession Act provides that the right
'to prosecute or defend any action or special pro-
ceeding existing in favour of or against a person at the
time of his death survi-v-es to and against his executor.
administrator or representative. But an exception is
made in respect of a cause of action based on defama-
tion, assault as defined in the Indian Penal Code, or
other personal injury not causing the death of the paring.
In England, until recently. the maxim above referred.
to applied generally till it was abrogated by the Law
Reform (Miscellaneous Provisions) Act, 1934. But even
under this Act, a cause of action for ciefazrtatiou or se-
duction or for inducing one spouse to leave or remain
apart from the other and for damages on the 'ground of
adultery were excepted. The law. therefore, both in
England and in India at the present moment is more or
less the same. The difference lies only in the excep-
tions existing under the Indian law and the English law.
113. Article 20 relates to a suit filed by a legal repre~-
sentative on torts causing precuniary loss to the estate
while article 21 relates to a suit filed by a legal represen-
tative for damages for death, which has to be a repre-
sentative action. The other group of Articles. 33, 34, 8:
35 relate to suits against the legal representatives.
Under articles 20 and 21, the date of death of the person
is taken as the starting point of limitation. Under the
Fafal Accidents Act, the suit is for damages for causing
death by any Wrongful act. neglect or default and the
suit is for the benefit of the dependants. The suit under
the Legal Representatives' Suits Act is restricted to
wrongs which occasion pecuniary loss to the estate .9:
43
the deceased and the cause of action in respect of which
according to the law then prevailing did not survive.
Under the Succession Act, all rights of action survive to
the executors or administrators. except actions for defa-
mation. assault or personal injuries not causing the
death of a party. The substantive law preventing the
abatement of the cause of action is laid down by the
said Acts. The cause of action under the Fatal Acci-
dents Act is the death and time under Art. 20 begins to
run from the date of the accrual of the cause of action.
However, under the Legal Representatives' Suits Act, as
the suit is in respect of a wrong committed in the life
time of a person but time is made to run from the date
of the death, the running of time does not synchronise
with the date of accrual of the cause of action. On the
other hand. under Articles 33 8: 35. a period of 2 years
is provided which runs from the date when the wrong
complained of is done. This synchronises with the date
of the accrual of the cause of action. The suits contemp-
lated under the two Acts. i.e., Legal Representatives' Suits
Act and the Fatal Accidents Act relate to torts. No
special period of limitation is provided for actions con-
templated by section 306 of the Succession Act, as it was
assumed that the provisions laid down in the Limitation
Act will govern such actions.
114. A provision for the survival of the -right of
action having been made. the action may be treated as
one. founded on tort whether it is by or against an exe-
cutor. administrator or representative and the time .for
limitation may be made to commence with the accrual
of the cause of action. Ifa period of three years from
the accrual of the cause of action is provided no hard-
ship will be caused to either party._ In view of the pro-
posed period of 3 years from the date of " accrual of
the cause of action the period of one year before death
provideti in the Legal Representatives' Suits Act. will
have to -be abrogated. It may be observed here that in-
stead of leaving the question of survival of the cause
of action to be dealt with by three separate Acts, a'con-
solidating amendment in an appropriate manner" may be i
made in section 306 of the Indian Succession Act.
115. There is also a conflict of decisions under Sec-
tion 306 of the Indian Succession Act as to whether a
right to an action for malicious prosecution is one relat-
ing to personal injury not causing the death of the party
Lu.-59! 2It.mI'7e--7r'
45
foreign buyer "which occasions the export", and which
is implemented in accordance with the terms of the
contract by an actual export which is the sine qua non
.of "a sale in the course of export".
"A case on the other side of the line Would be One
where the sale is effected to a resident purchaser who
effects the export by sale of the goods purchased to a
-foreign buyer.' Here the first sale to the buyer who
«enters into the export sale would not be a "sale in the
course of export", for it would not be the particular
sale which occasions the export, notwithstanding that
the purchase might have been made with a View to
effect the export sale, or to implement a contract of
sale already entered into with a foreign buyer. That
such a sale is not one "in the course of export" has
been repeatedly held by this Court.'-2-3-4.
"This second type of case involves two sales--one
to a resident purchaser who purchases it with a view
to effect an export and the second,"the export sale or
sale in the course of export by the purchaser to a
foreign buyer. The 'existence of the two sales and the
«consequent dissociation 'betweenthe first sale and the
export causes a hiatus between lthat sale and the
export and destroys? the integralityof the two events
or transactions viz, the sale and the factual export.
"The sales involved' in the .present appeals are not
-of the second type for here there is 'a single sale direct
to a foreign buyer, the contract g concluded with
and the goods sold delivered to his agent. It is hardly
necessary to add that for purposes relevant to the de-
cision of the question before us there could be no dif-
ference in legal effect between a saleto a foreign buyer
present in India to 'také deliver of the goods for
transport to his countryfand ';a5_sa e to his resident agent
for that' purpose. Paudng 'here', we should mention
'that there is no dispute (1) that'the persons who bid
at the auction at Fort Cochin and purchased the teas
of the assessees were agents of foreign buyers 'br (2)
regarding their having made these purchases under
the directions of their foreign principals in order to
despatch the goods to the latter--a contractual obli-
gation that they admittedly. fulfilled.
'1. State of Tranuancoor-Cochirttv. Shanraugha Vila: Cashew Nut Factory:
_(r954) S.C.R. 53; _A.I.R. 1953 S.C.'333,
2. State of Madras v. Gurviah Nakiu and. Co, Ltd', A.I.R. I956 S.C. 158;
6 S.T.C. 717.
3. State of Mysore v. Mysore Spinning etc. Co. Ltd., A.I.R. I958 S.C.
1002 ; (1958) 9' S.T.C. 188.
.4. East India Tobacco Co. v. The State of Artdhra Pradesh, (1963) I S.C.R.
404; A.I_.R. 1962 S.C. 1733; 1-3 S.'f'.C; 529.:
1
46
of the Act. At the same tim_e in respect or immovable
property articles 13-HA.) to (C) were introduced. Article
134 includes trust property as well as mortgage pro-
perty. This article may be split up and the portion re-
lating to trust property may be brought under the above
head. (See also paragraph 130). The existing period in
all the above articles may be retained but the articles
nrey be grouped as indicated in the Annexure.
123. The starting point of Limitation for suits cover-
ed by Art. 134--B is the date of death, resignation or
removal of the transferor. This has given rise to some
difficulties in certain cases. Thus, an Endowment Com-
missioner may find it necessary to challenge an aliena-
tion by one of the previous managers, after decades; or,
there may be a gap of more than 12 years between the
death, resignation or removal of one manager and the
appointment of his successor. In such cases. it would be
more equitable to make the date of the plaintiff's ap-
pointment as Manager the starting point for limita-
tion. But there may be cases and circumstances where
the existing provision may be more favourable to the
institution. To provide for both contingencies, the late!'
of the two dates should be taken as the starting pointlof
limitation.
Cnarrra VII--SU1rs RELATING ro I1\.m1ovasLr: Pnorsnrv
Mortgages
124. Articles 105, 132, 134 (second part), 135, 146, 147
and 148 relate to mortgages. The Transfer of Property
Act as amended in 1929 deals with the following kinds of
mortgages:
(1) Simple mortgage,
(2) Mortgage by conditional sale,
(3) Usufructuarjr mortgage,
(4) English mortgage,
(5) Mortgage by deposit of title deeds
and (B) Anomalous mortgage.
Apart from suits on the covenant to pay, if any,
the remedies available to a mortgagee. are stated in sec-
tion 67 of that Act. After the mortgage money becomes
payable the mortgagee is entitled under the Act to a
decree either for foreclosure or for sale depending on
,,..--¢4,,..
4'?
the nature of the mortgage. The right of foreclosure
is given only to a mortgagee under mortgage by condi-
tional sale or a mortgagee under an anomalous mortgage
by the terms of which he is entitled to foreclosure.
Under the law as -it stood before 1929 the English mort-
gagee was entitled to foreclose or sell. As the right of
foreclosure is restricted under the present Act to the
two kinds of mortgage stated above, a simple mortgage
or an English mortgage or a mortgage by deposit of title
deeds carries with it only a right of sale. In the case
of an anomalous mortgage the remedy depends upon the
terms of the mortgage; the mortgagee under it may be
entitled to foreclosure or sale, or possession. The only
right of a usufructuary mortgagee is to recover posses-
sion of the property but he cannot sue either for sale or
for foreclosure. Though there was some difference of
opinion before the amendment as to whether a usuf-
ructuary mortgage could be created without cleiivery of
possession to the mortgagee, the amended definition of a
usufructuary mortgage enables the creation of a usuf-
ructuary mortgage even without delivery of possession.
If the usufractuary mortgagee is not put in possession or
if his possession is disturbed, he is entitled to recover
possession of the property.
125. Belore the decision of the Privy Council in Vesu-
devs V. Srénioasol the View was taken that a suit by
a mortgagee for sale of the property was governed by
article 14? which gives a period of 60 years for fore-
closure or sale. This view is no longer tenable in View
of the decision of the Privy Council where it was pointed
out that article 1-1'? applied only to an English mortgage
under which the mortgagee has the alternative of either
bringing a suit for foreclosure or for sale and that the
proper article to apply in the case of a suit for sale
under a simple mortgage was article 132 which provides
a period of 12 years from the date when the money
sued for becomes due. Under the existing law, the
English mortgagee has no right of foreclosure. Like a
simple mortgagee, he has to institute a suit for sale.
Whether in view of the definition of English mortgage in
the Transfer of Property Act he is entitled to recover
possession also, is a debatable point.
126. In the Limitation Act there are two articles, 135
and 1456 which provide a period of limitation for recovery
1. 3-: Mad. 416 (P.-CL}.
3'0
a suitable explanation to the new article in order to make
the position clear.
132. Articles 142 and 144 have introduced .a good deal
of confusion in the law relating to suit for possession by
owners of property. The law as it stands whether in a
suit under section 9 of the Specific Relief Act or in one
covered by article 142 seems to favour a trespasser as
against an owner. The anomaly is due to the decisions
_which have held that in an ejectment action by the owner
of property it is not sufficient for him to establish his title
but if he has averred in his plaint original possession and
subsequent dispossasion or discontinuance of possession
he should go further and establish that his title was
subsisting at the date of suit, in the sense that he was in
possession of the property within 12 years before the date
of the institutionof the suit. That article 142 applies to
a suit by the owner of the property as well as a pe_rson
suing merely on the basis of a possessory title is the View
taken by some courts [vide the Full Bench decisions in
Oflicial Receiver, E. Godtroari V. Gooindamjui and
Bindhyachol C-hand V. Ram Gharibfl] while others res-
trict its applicability to a suit based on a possessor-y title
alone Ivide Jaichcnti Bchctdur V. Git-war Staph-"; Mt-
Jijibtti v. Zebu'; and Ktmhaiyttlttl V. Girwor and
oth.ers5]. A person who is the owner of the property when
he sues for recovery of possession has thus to establish
not only his title but also that he was in possession of the
property within 12 years if he frames his plaint as one
for possession after dispossession.
133. The decision of the Privy Council in Agency Co. v.
Fhortfi which was given under an analogous provision in
3 and 4 William 4, c. 2? (Act III of 183'? in the
Colony of New South Wales) finally settled that the rule
of prescription should be applied not to cases of want of
actual possession by the plaintiff but to cases where the
plaintiff has been out of possession and another was in
possession tor the prescribed time. Two conditions must
be satisfied. There must be both an absence of possession
by the person who had the right and actual possession by
another, whether adverse or not, to bring the case with-in
. I.L.R. 1940 Mad. I953 .
. 57 A11.273.
. 4 I All. 569.
. rso LG. 679 (Nag.3I
. 51 All. 1042.
. (I388) 13 App-calflases. 793.
O1'-h:L\.L?!«.'I HP
5 .-D-s~!-vflinfi
51
the statute. The Supreme Court of New South Wales
took the view that the period. of prescription continued to
run notwithstanding that the intruder had abandoned the
land long before the expiry of 2!) years irom his first
entry and no other person had taken possession of such
land and that the owner should prove, even in such a
case, that there was actual entry by him after the intruder
had abandoned possession and vacated the land. It was
this view that was negatived by Lord MacNaughten in the
Privy Council.
134. The language in column 1 of artioiae 142 does not
refer to title and it speaks only of a suit for possession in
which the plaintiff claims that while in possession of the
property, he has been dispossessed or has discontinued the
possession. The words '*dispossession" and "discontinu-
ance" have a particular significance in law. Dispcssession
occurs where a person comes in and puts another out of
possession while discontinuance of possession takes place
where the person in possession goes out and another per-
son takes possession. It is not, therefore, enough to cons-
titute 'discontinuance' zhot a person goes out of passes-
sion: this should he followed by the possession of another
person. The words. dispossession and discontinuance are
used in the article in this sense. The \'lE'.--'.' taken in the
Ful1_Bench decisions cited .abD'l'e,Cloes not Bf.'-'.'O1"d with
this interpretation of the article and has led to very un-
just consequences. In the very Full Bench decision affii-m-
ing this rule', Leach C. J'. observed: "it may be a hardship
that a person who proves a title to property should lose it
to a trespasser unless he can also show that he has been
in possession within 12 years of suit, but that is what the
Limitation Act says and the court must administer the
Law." We propose that this hardship should be reme-
died. It the defendant wants to defeat the right of the
plaintiffetheiirnust establish his adverse possession for over 12
years which has the effect of extinguishing the title of the
owner by the' operation of section 23 of the Limitation Act
read with article 144. If he fails to do so there is no rea-
son for non-suiting theplaintifi merely because he was not
able to prove possession within 12 years. The inequity of
this requirement is illustrated by the following example:
If A, B, and C are independent and successive trespassers
on the property and the suit for possession is brought by
the true owner against C. it must fail unless the plaintiff
__TT fi'E36-ai' _"k"' ii'
...i--as
52
proves his possession within 12 years, though the a last
trespasser C was not in possession except for a short
period.
135. In our opinion, article" 142 must be restricted in its
application only to suits based on possessory title. The
plaintiff in such a suit seeks protection of his previous
possession which falls short of the statutory period of
prescription. to recover possession from another trespas-
ser. The plaintiifs prior possession no doubt entitles him
to protection against a trespasser though not against the
true owner. The true owns-r's entry would be a rightful
-entry and would interrupt adverse possession. But if the
defendant trespasser is a person who wishes to oust the
plaintiff who was himself a prior trespasser or a person
who did not come into possession as a trespasser but con-
tinued to hold it as such, in order to enable the plaintifi
to continue his wrongful possession without disturbance
and to enable him to acquire a title by adverse possession,
the law must undoubtedly step in and give relief to the
plaintiff. As against the true owner a person who is in
possession for a length of time short of the statutory
p'(_el'iOd is not entitled to any protection but the net result
of the "decisions under article 142 is that the true owner
must prove that he had a subsisting title on the date of
suit. We, therefore, Esuggest that in order to avoid injus-
tice and inequity to the true owner and to simplify the
law, article 142 should be restricted to suits based on pos-
sessory title and the owner of the property should not
lose his right to it unless the defendant in possession is
able to establish adverse possession. Article 142 may,
therefore, be amended as follows:
"For possession of immovable property based on
possessory title when the plaintiff while in possession
of the property has been dispossessed-~12 years from
the date of dispossession."
136. The new article' to which reference has already
been made will govern suits for possession of immovable
property or any interest therein based on title, the period
being 12 years from the time when the possession of the
-defendant becomes adverse to the plaintiif. The article
as amended will cover cases at present falling under
articles 136, 13'? and 138. Articles 140 and 141 may be
deleted and a suitable explanation may be added. Arti-
clesLa;36, 137, 138, 140, 141 became unnecessary. Article
53
143 relating to a suit for possession on forfeiture or
breach of condition should in our opinion be retained as it
is. Some complications may result if this article is merg-
ed in the general article relating to suits for possession
based on title.
Cnarran VIII--SUrrs on ornsa CLAIMS
137. Suits for Accom1.ts.--Articles 85, B8. 89, 90 and 103
relate to suits for accounts. Of these, Article 85 is based
on well established commercial usage and it would not
be advisable to change it, We do not recommend any
change in regard to the other articles also. All these
articles may, therefore, be retained in their present form.
138. Suits for a. declarotion.--Articles 92, 93, 118, 119
and 129 relate to suits for a declaration in respect of
various matters. In Arts. 92 and 118, the starting point of
limitation is the knowledge of the plaintiff. These articles
should be retained in their present form except that the
period oi limitation in the case of Article 118 should be
reduced to 3 years. Arts, 93, 119 and 129 may be consoli-
dated into one Article and the date when the right to sue
first accrues may be made the starting point of limitation.
For all these articles, we recommend that a uniform period
of three years should be provided.
139. Suits to set aside documents and decrees.-
Articles 91 and 114 fall under this group. A consolidated
article with a period of three years from the date
when the facts entitling the plaintiff to have the instru-
ments cancelled or set aside or the contract rescinded, first
becomes known to him, may be substituted. Suits for
setting aside decrees should also be brought under this
article.
140. Article 44 which falls under this head has to be
retained in its present form. It applies to voidable
transactions and time does not begin to run until the ward
attains majority, the period being three years. If this
article be deleted and the matter is left t.o be governed by
Article 144 the quandom minor would have 12 years from
the date of majority. The intention of article 44 is to
limit the time for the exercise of the option to set aside
the transfer to three years after attaining majority. To
extend the period of 12 years would result in keeping the
alienee'-s titie in an unsettled state for a long period. It
54
I5 well settled that disputes as to title should be decided
as early as possible.
141. Where there is more than one ward, the provisions
of Sec. 1' will apply. There is, however, one difliculty
which has to he provided for. Section 6(3) will not apply
where article 424 applies. If the ward dies before attain~
'mg majority or within three years after attaining majority.
the law is not certain on the question as to the period
within which the legal representative should institute a
suit {side Alamelu Am_mcL Vs. Krishna Chetty dz othe'r.sl.'
In the case of an assignee it was held that the option
should be exercised within three years after attainilig
majority. The same should apply to a legal representative
also If the ward died while a minor, leaving a legal re-
presehtative' who is a major or is under no disability, we
consider that the latter should have a period of only three
years from the date of death of the minor ward. The
question remaining to he considered is whether a provi-
sion is necessary to cover cases where such legal re-
presentative is under any disability or when the ward
leaves more than one legal representative, all such
legal representatives are under disability. We consider
that such cases would be very rare and we do not there-
fore deem it necessary to make any special provision.
1&2. For relief on the ground of ji-cud or mistcke.----Arti-
cles 95 and 95 relate to suits for setting aside andecree
obtained by fraud or for relief on the gmiiiid of fraud or
mistake; the period of limitation is 3 years from the time
when the fraud or mistake becomes known to the plaintiff.
In the proposed section 13 vge. have provided that for
relief on the ground of frauflfor mistake. the period of
limitation should not begin £9 run until the plaintififlhas
discovered the "fraud or the rnistalce, as the case may he,
or with reasonable diligence could have discovered it.
Suits for relief on the ground of fraud or mistake may he
founded either on contract or on tort or the relief claimed
may be to set aside 'an instruments or a decree. If the
former. the suit would come under the article for contract
and tort read with section 18 and the result would be
the same as that provided in the present Act. If the
relief claimed is to set aside an instrument on the ground
of fraud or mistake or to set aside a decree on the ground
of fraud the suit will fall under the proposed article 23.
it is, therefore, unnecessary to retain articles 95 and 96.
H.°i..1.1?.. 'sofa Kidd; 58.5_.or'e:'ri1ling A.LR. 1930 Madman. '
.---','~.
55
143. It is no doubt true that the proposed article which
is to replace articles 9i and 114, would provide that -the
limitation should commence to run from the date of the
knowledge of the facts entitling the plaintiif to the relief
claimed. Suits which fall under the proposed article
ma}: also be covered by section 13: but there may be
cases in which the relief to cancel or set aside an instru-
ment may not be based either on fraud or mistake and.
therefore, by way of abundant caution it would be safer
to retain the proposed article though this may result in
some overlapping.
144. Other suits.»-Article 1 provides a period of 30
days for contesting an award of the Board of Revenue
under the Waste Lands {Claims} Act. 1863 (XXIII of
1363} and time begins to run when notice of the award is
delivered to the plaintiff. The suit contemplated by this
article is not based either on contract or tort. Under the
Waste Lands (Claims) Act a special procedure is pres-
cribed for disposal of claims and objections by persons in
cases where government disposes of waste land. The claim
or objection has to be filed under the Act before the
Collector and the party aggrieved is entitled to take the
matter to the Board of Revenue against his determination.
If the decision of the Board is adverse to the party, he has
to file a suit to establish his claim or right in 3 Court
specially constituted under the Act. Article 1 applies
to such suits. This Act has been repealed, so far as
Bombay is concerned, by Bombay Act IX of 1943, Waste
Lands Claims {Bombay} Repeal Act. 1943. It is not
known whether the other States are following the pro»
cedure under this Act when disposing of waste lands.
The only reported case under this article was decided in
1866 (Toranath Dutt V. Collector of Sylhetf) It seems
unnecessary, therefore. to retain this article in the Limita-
tion Act as the Waste Lands {Claims} Act itself- does not
apply in many States. It is open to a State to enact a
law continuing it, as under item 34 of the State list, the
subject matter is within the exclusive legislative power
of the States and a State may prescribe a period of
limitation in the Waste Lands {Claims} Act itself. We
therefore recommend that the article be deleted.
145. Article 3 provides a period of limitation of six
months for the summary remedy to recover possession of
(I866) 5. W.R. §'|. I.
Art. 1-
Art. 3.
56
land provided by section 9 of the Specific Relief Act.
Whether section 9 of the Specific Relief Act should be
retained or repealed is one of the questions to be consider-
ed when dealing with that Act. It seems to us an unneces-
sary provision resulting in multiplicity of suits. Any
order made under that provision is not final as even if
the plaintiff recovers possession the unsuccessful defend-
ant can institute a regular suit to establish his title and
get back possession of the land. The section does not serve
the purpose of preventing a breach of the peace for
which provision already exists in section 145 of the CI-im1'--
1:a1 Procedure Code. Whoever fails in proceedings under
that Code has necessarily to institute a suit to establish
hrs right. The necessity, therefore, for this pro=vision is
1-satobvious. The provisions of the Criminal Procedure
Code are adequate to prevent breach of the peace. For
recovery of possession by a person having only a posses-
sory title our proposal in respect of article 142 will he
more than sufficient to protect the trespasser's possession
as against another trespasser. We, therefore, recommend
the deletion of article 3. On this topic also our colleague
Dr. Sen Gupta takes a different view which he has stated
in a note appended to the Report. Notwithstanding the
considerations stated in that note we are of the view that
section 9 of the Specific Relief Act does not serve any
useful purpose and that article 3 should be deleted.
146. {Article 4 has been deleted by section 3 of the
Amending A-ct XX of 1937]. Article 5 provides a period of
one year for what are sometimes called "under chapter
suits". In Bombay, this article was repealed by the Indian
Limitation (Amendment) Act (XXX of 1925) and article
64!: was inserted, providing a period of three years so far
as that State is concerned. To make the law uniform
in all the States we suggest that the period may be left
to be governed by the appropriate article for ordinary
suits. The Civil Justice Committee recommended such a
course as far back as 1925. There is no reason for penalis-
ing a person who wants to take advantage of the summary
procedure By cutting down the ordinary period of limits.
tion to which he would otherwise be entitled. This
article may, therefore, he delete-i
147. Article 6 prescribes a period of one year for a
suit for recovery of a penalty or for forfeiture and time
runs from the date when the penalty or forfeiture is
incurred. Such a suit may well fall either under the
article for 'contract' or the residuary article.
5'?
A learned
commentator has doubted the usefulness of a similar pro-
vision in England. If any such right of suit exists in
favour of any person, it will fall under the residuary
article under which we propose to fix a period of 3 years
from the date when the right to sue accrues.
148. Article 1!), relating to pre-emption, being for a
special category of suits should be retained, but in view
of the conflicting judicial opinion on the interpretation of
the word 'whole in the 1st part of column 3, an amend-
ment of that part is necessary. The words "of the whole
or part of the property" may be added before the words
"when the instrument of sale is registered".
149. If the application or objection may be treated as a
suit and disposed of instead of first making a summary
order, and then requiring a suit to be filed to set aside the
order under 0. 21 Rule 63 or O. 21 Rule 103, multiplicity
of proceedings will be avoided and articles 11. 11-A and 13
will be unnecessary. But, if they are to be retained, they
may be recast and put into one article. Similarly, Articles
12 and 14 may be recast as indicated in the Annexure. As
Patni sales are peculiar to Bengal and the subject is within
the legislative competence of the State, the existing expla-
nation to article 12 may be deleted.
15!]. Articles 15 and 16 are for suits against Govern-
ment (i) to set aside any attachment, lease or transfer of
immovable property by the revenue authorities for
arrears of Government revenue and (ii) to recover money
paid under protest in satisfaction of a claim made by the
revenue authorities on account of arrears of revenue or on
account of demands recoverable as such arrears. A three
year period of limitation seems to us suitable for these
suits. We would, therefore, omit these articles and leave
these suits to be governed by the residua-ry article.
151. Article 1'? provides a period of one year for re
covering from Government compensation for land acquit!-
ed for public purposes and time runs from the date of
the determination of the amount of compensation. Under
Section 11 of the Land Acquisition Act, the Collector is
enjoined to determine the compensation Which, in his
opinion, should be allowed for the land acquired. Under
Section 16. after the award is made under section 11, the
Collector is entitled to take p-omession of the land which
vests absolutely from that moment in the Government free
Art. to.
arts. 11-I4.
Ans.
at 16.
Am.
a 13.
35
17
8
L):
from all encumbrances. Part III of the Act provides for
a reference to the court in a case where the person inter-
ested does not choose to accept the award. On such a re-
ference, the court determines the amount of compensation
to be awarded for the land acquired and under section
26{2} of the Act the award made by the court is deemed
to be a decree and a statement of the grounds of such
award is a judgment within the meaning of subsections 2
and 9 respectively of section 2 of the Civil Procedure
Code. This sub--clause, it is common knowledge, was in-
serted by an amending Act of 1921 as the Privy Council
held in Rangoon Botctoung Co. V. Collector of Rangoon'
and Special Oflicer Scisette Building Sites V. Dcssa Bhoi?
that there was no right of appeal against the award made
by the court as it was not a decree. Section 54 of the Act
which was inserted by the amemling Act of 1921 confers
a right of appeal to the High Court under the award and
a further appeal from the appellate decree of the High
Court to the Supreme Court subject to the provisions of
the Code of Civil Procedure. Under section 31(1) of the
Act, the Collector is enjoined to pay the compensation
awarded by him under section 11 to the person interested
and entitled thereto according to his award. If the person
refuses to receive it or if there is no person competent to
alienate the land, the course the collector has to follow.
is indicated in the Act. In a case which does not end in
a reference to a court under section 18 of the Act, the
Collectofs award under section 11 is and detcrrriines
the rights of the parties. it the (foi'i'~-::r~.~ .'.'«".»- . : 'T choose
'to tender or pay the amount as required by scc..i-ori 31 of
the Act, no machinery is provided under the Act to com-
pel the Collector to pay the amount. Bu'. -the Limitation
Act (article 17) provides that a person in such a situation
can file a suit against the Government for the recovery of
the amount within one year from the date of the determi-
nation oi the amount of compensation. The period provid-
ed is very short and it is dilficult to see why a provision
is not made in the Act itself to compel the Collector to
pay the amount by making the award executable against
him. instead of driving the aggrieved party to a suit after
giving the statutory notice required by section 80 of the
Civil Procedure Code. Such a suit itself may drag on
for a long time with the result that a person who has un-
wisely accepted the award as final would not he
. ----.. -...._.. ,... ............... -.___.... j.__,.._.._
1. 40 Cal. 21."
2. 37 130111. 501'.
59
able to recover compensation for a long time though the
property would be taken possession of by the Collector
immediately after the award is made. In fact, there have
been cases in which aggrieved persons have been compelled
to go to court. The absence of a provision such as we have
indicated appears to be a lacuna in the Land Acquisition
Act. The situation should be remedied by amending that
Act and making the award enforceable by treating it as a
decree within the meaning of section 2(2) of the Civil
Procedure Code. If this is done, the injustice to the
citizen will be remedied and there will not be any need
for the retention o:E_ article 17 of the Limitation Act.
152. A similar reasoning will apply to article 18. Under
section 48 of the Land Acquisition Act, it is open to Gov-
ernment to withdraw from the acquisition of any land
of which possession has not been taken; but sub-section 2
of that section provides that in that event the Collector
shall determine the amount of compensation due for the
damages suffered by the owner in consequence of the
notice or of any proceedings thereunder and pay such
amount to the person interested with all costs reasonably
incurred by him in the prosecution of the proceedings
under the Act. Sub-section 3 of that section makes the
provisions of Part III of the Act applicable for the deter-
mination of such compensation. Here again, if the Col-
lector does not choose to pay or does not agree to deter-
mine the compensation, the only remedy of the party is to
institute a suit for the recovery of such compensation
within one year from the date of the refusal by the Col-
lector to complete the acquisition. The proper course in
such a contingency would be to entitle the party to have
the amount of compensation determined by an application
to the court andto make such determination by the court an
executable decree. It may be observed 'that when the
matter is referred to the court under section 13 of the Act,
the awatrd of the court is deemed to be a decree by reason
of sub-section 2 of section 26. The object of the Amend-
ing Act of 1921 which provided that the award was to be
deemed to be adverse was merely to enable the aggrieved
person to appeal to the High Court and to the Privy
Council. From the form in which the court makes an
award, it is not always clear whether it is an executable
decree. If the award as drafted, is not executable, there
may be a difliculty in realising the amount from the Col-
lector if he does not choose to pay it. It is necessary,
Am.
453 'I-5 3'33
I21.
Art.
4?.
Am. gs,
734113 I245,
12!, 1283;
(£41..
Arts.
I94
I :2.
I03,
and
60
therefore, that the Land Acquisition Act should he suit-
ably amended so as to fix a time-limit, say, six months
within which the Collector must pay or deposit the com-
pensation and a provision made in Section 31 of the Act
that on the failure of the Collector to pa}: or deposit
an application may he made by any person interested, for
a direction that the compensation be deposited in court.
If these amendments are made in the Land Acquisition
Act, articles 17 and 13 of the Limitation Act will be un-
necessary. If, however, it is decided not to give the per-
son a summary and speedy remedy as suggested, there is
no reason to restrict the period of limitation to one year as
at present. The matter may be left to be governed by the
proposed residuary article with its period of three years.
In any view, therefore, it is unnecessary to retain these
articles.
153. Articles 45, 46 and"l21 may be omitted as they
relate to subjects in the State list and the States may well
provide suitable periods of limitation for these matters.
154. Article 47 cuts down to three years the period of
12 years available against a trespasser in possession where
an order under 145 Criminal Procedure Code has been pass-
ed. If a suit is not filed within three years, the title itself
would be extinguished. This Article may be omitted and
the person aggrieved may be left to file the suit within the
period allowed under the new article corresponding to
Article 144.
155. Articles 93, 124 to 128 and 145-3. relate to special
categories of suits and as it has been found not possible
to bring them under other heads these articles may be
retained in their present form. The period under Article
138 may be reduced to 3 years as suggested by the Civil
Justice Committee.
156. Article 94 has_ to be retained in its present form, as
the starting point of limitation is the date of knowledge
after insanity had ceased. which will not coincide with the
date of accrual of the cause of action.
151'. Article 112 relates to a suit for a call by a Com-
pany registered under any Statute or Act. Such a suit
will fall under the article relating to Contract or under
the residuary article. Articles 103 and 104 which relate
to suits for dower might be left to be governed by the re-
siduary article. All these articles may. therefore, be
deleted.
61
153. Articles 11'? and 122 relate to suitsupon a foreign
judgment (as defined in the C.P.C.) and upon a judgment
or recognisance. The periods provided new are respec-
tively 6 years and 12 years from the date of judgment or
recognisanoe. In England, such suits are treated as' suits
on contracts. Adopting that principle, we propose to fix
for these suits the same period as for suits provided on con-
tracts, via, three years from the date of judgment or recog-
nisance. We would frame one article dealing both with
judgments and recognisances.
159. Article 120 is the residuary article for suits. This
is intended to provide for the omission -of any other kind
of suit. Under the existing scheme we find that a num-
ber of residuary articles are provided, one at each stage.
This is'unne-cessary. A single residuary article may be
'provided fixing the period of limitation as three years
from the time when the right to sue accrues. The period
should not, as now, differ with different groups of suits
and should be the same whether it is a suit found-
ed on tort or contract or on any other right of action.
160. Article 123 relating to legacies etc. may be retain-
ed in its present form subject to an amendment which will
bring it in accord with the Privy Council ruling in Ghulam
Muhammad v. Shaikh Ghulorn. H ussoin,' to the effect that
the article only applies where the suit is brought against
an executor or administrator or some person legally charg-
ed with the duty of distributing the estate.
161. A suit under Article 130 for resumption or assump-
tion of rent-free land is of very rare occurrence. As will
appear hereafter. the Government will have thirty years
even it the residuary article applies. This article may
therefore be omitted.
162. Article 149 relates to suits by or on behalf of the
Government. The period is 60 years from the time when
the period of limitation would begin to run in a like suit
by a private person. We recommend that that period may
be reduced to 34} years as under the English law. This will
bring the period in accord with that prescribed for local
authorities under Article 146-A.
Cnsrrsn IX----Ar-rests
ltti. For an appeal against a death sentence, Article 150
prescribes a period of 7 days. This in our opinion is too
--' I . 54. All. 193 (P.C_.).
556 Law-5
A1-ts.
wand 12:.
Art.11.oo
Art. 123
Art. 139.
A.rt.z4.9_
Aral. 150
I53 I54
|nd'r55,
---no
62
short a period and it should be increased to 30 days. Arti-
cle 154 provides a period of 30 days for an appeal under
the -Code of Criminal Procedure to any court other than the
High Court and article 155 provides a period of 60 days
for an appeal to the High Court against a conviction under
the same Code. We think that this distinction should not
exist. Instead of articles 150, 154 and 155, one single arti-
cle may be substituted, for appeals to any court under the
Criminal Procedure Code, providing a period of 3|] days
from the date of the sentence or order appealed from.
Article 153 prescribes a period of limitation for an appeal to
a High Court from an order of a subordinate court reiusing
leave to appeal to the Supreme Court. This article may,
therefore, be deleted. ' -
164. Article 151 provides for appeals against decisions
of a single judge of a High Court in the exercise of its ori-
ginal jurisdiction It applies only to the High Courts of
Calcutta, Madras Bombay and Punjab in the exercise of
their original jurisdiction. Article 162 relating to applica-
M tions for review of judgments in the exercise of original
jurisdiction by the High Court applies to Nagpur also.
Some of these High Courts, namely, Madras, Calcutta and
Bombay exercise ordinary original jurisdiction within
defined territorial limits. Others do not exercise' ordinary
original jurisdiction but only -extraordinary or special sta-
tutory original jurisdiction. We consider that there is no
reason for providing for difiering periods in regard to the
various High Courts and that a uniform period should be
prescribed. We also think that the existing period of 2|]
days under Article 151 is too short and attempts are often
made to get an extended period by first applying for leave
to appeal as a pauper (for which a period of 30 days is pro-
vided) and then on failure to obtain such leave to ask for
time for payment of a court fee, the delay in such- payment
being excused by the court. We, therefore, recommend
that a uniform period of 30 days be prescribed for all
appeals to a! High Court against its own decrees or orders.
165. With regard to appeals under the Code of Civil Pro-
cedure a distinction is made between appeals to the High
Court from motussil courts and appeals to the subordinate
appellate couits. In the latter case a period of 30 days is
provided while in the former it is 90 days. We think that
a uniform period of 30 days for all appeals, should be pro-
vided. No hardship will result from a reduction of the
period because usually considerable time is taken in obtain-
ing copies of the decree and judgment, and the time taken
I oU---IE-
53
for that purpose is excluded under section 12 of the Limita-
tion Act. Normally, even for the purpose of an appeal from
the subordinate courts to the district court more than a
month or two is required to obtain such copies. That will
give suflicient time for preferring the appeal. In the case
'of appeals to the High Court the time taken for obtaining
copies is much longer as in many cases judgments have
"to be printed. Even in cases where printing is dispensed
"with the parties will be able to add the time spent in obta_in--
ing copies to the period provided. Perhaps formerly there
was justification for providing a longer period for appeals
to the High Courts as they were at a distance and means
of communication were difficult. But this consideration is
not of importance now that means of quick transport are
"available. _
166. Article 15'? provided a period of 6 months 1imita--Au,
tion for an appeal against an order of acquittal. The re-
-cent Act amending the Criminal Procedure Code has sub-
stituted a period of 3 months for 6 months. We do not pro-
pose any alteration of that period though we think that
even the present period is too long to enable the State to
make up its mind to file or not to file an appeal against an
order of acquittal. The recent amendment to the-"Code also
provides for an appeal against an acquittal in cases institut-
ed on private complaints if the High Court grants special
leave. This application for special leave should, under Sec-
tion 41'i'(4), be filed within 60 days of the date of the order
of acquittal. We recommend that the appeal itself should
be filed within one month from the date of grant of leave
to appeal under section 417(3) of the Code.
167. It may be pointed out that in England the time
provided for appeals is less than a month except in the
-case of appeals to the House of Lords, for which it is six
months.
Cnaprnn X--A1>1=LIc.rrIoNs
153- Firstly, as regards applications for special leave to
appeal to the Supreme Court, the Supreme Court itself has,
under the authority vested in it by law, provided the
following periods-of limitation for such applications:
{1} 90 days from the date of judgment or order sought
to be appealed from,
(2) 60 days from the date of the refusal ot leave to
appeal by the High Court,
1»: -I1»-ulxua
arts. 18:
I33.
54
(3) Applications for special leave to appeal in a case
involving death sentence, 3!) days item the date of
the judgment, final order or sentence.
Items (1) 5.-. (2) apply to civil as well as criminal
matters. [Vida Order XIII R.I. 8: Order XXII R1. of
Supreme Court Rules. Item (5') is covered by Order
XXI. R2]. In all these cases power is reserved to the
Supreme Court to extend the time if sufficient cause is
shown. These rules cover applications for special leabe
contemplated by Article . 136 8.: 132(2) of the Constitution.
1652!. New provisions are necessary prescribing periods
of limitation for making applications to the High Court
for a certificate oi fitness to appeal to the Supreme Court
in the following cases:
(1) for applications under Article 132(1) for a. -certifi--
cate that the case involves a substantial question
of law as to the interpretation of the Constitution.
(This applies to civil, criminal and other proceed-
inss);
(2) for applications for a certificate under Article 133'
(Civil matters];
(3) for applications tor a certificate under
134(1) (c), (Criminal matters}.
Article 179 of the Limitation Act, as it now stands, pro-
Vidi-'S 3 Period of SI] days for applications under the C.P.C.
and does not prescribe a period of limitation for other
flplflicafions. A comprehensive provision Has, therefore, to
be made {or applications to the High Court for a certifi-
cate ofi fitness for appeal to the Supreme Court. For all
5'-1'-'3h 3PDlications a period of 30 days may be prescribed_
article -
1'70. Article 132 has been a very fruitful source of liti-
gation and is a weapon in the hands of both the dishonest
decree-holder and the dishonest judgment-debtor. It
1133 Ewen rise to innumerable decisions. The commentary
in Rust0mji's Limitation Act (5th Edn) on this article
itself covers nearly 200 pages. In our opinion the
maximum period of limitation for the execution of .3
decree Or order of any civil court should he 12 years froin
the date when the decree or order became enforce-
able (which is usually the date of the decree) or"
where the decree or subsequent order. directs any
payment of money or the delivery. of any property
65
to be made at a certain date or at recurring periods, the
date of the default in making the payment or delivery in
respect of which the applicant seeks to execute the decree.
There is, therefore, no need for a provision compelling the
-decree-holder to keep the decree alive by making an appli-
cation every three years. There exists a provision already
in section 48 of the Civil Procedure Code that a decree ceases
to be enforceable after aperiod of 12 years. In England also
the time fixed for enforcing a judgment is 12 years.
Either the decree-holder succeeds in realising his decree
within this period or he fails and there should be no pro-
vision enabling the execution of a decree after that period.
To this provision an exception will have to be made to
the effect that the court may order the execution of a
decree upon an application presented after the expiration
of the period of 12 years, where the judgment-debtor has.
by fraud or force, prevented the execution of the decree
at some time within the twelve years immediately preceed-
ing the date of the application. Section 43 of the Civil
Procedure Code may be deleted and its provisions may be
incorporated in this Act. Article 133 should be deleted
and the decrees of the High Court must be placed on the
same footing as decrees of other courts. There is no justi-
fication for making a distinction between decrees or orders
passed by the High Court in the exercise of their original
-civil jurisdiction or.orders of the Supreme Court and other
decrees. As a consequence of the foregoing changes.
Sections 19 and 20 will require to be altered in the manner
indicated in paragraph 52 above. We do not, however.
consider it necessary to make any change in the appli-
cation of Sections 14 and 15 to execution applications. The
period of 12 years will. of course, not apply to decrees
granting a perpetual injunction. This has been provided
for in Section 48 C.P.C'.. This exemption should apply
only in the case of perpetual injunctions. In the case of
mandatory injunctions, we recommend that a period of
limitation of 3 years should be provided.
171. We are of opinion that some effective, nay even
drastic. P1'D"-Vision is necessary to discourage, if not alto.
gether stop the large-scale evasion of the execution af
decrees by iudgnaent-debtors. The decree of a court 1.
meant to be obeyed and should be obeyed if courts are
15° Cflmmalld the necessary respect and confidence of
the public. From the point of viewofthe {iecree-hgldgr
there is nothing so distressing as an int'-ructuous execution
Arts. 153
a 173.
Arts. 151,
:6: an 173.
66
application and it has been truly said that his -troubles
begin only after the decree. The Rankin Committee has
also adverted So this, but no steps have so far been taken
to make decrees effective and easily executable. We
consider that the most effective way of instilling a healthy
fear in the minds of dishonest judgrnent--debtors would be-
to enable the Court to adjudicate him an insolvent if he
does not pay the decretal amount after notice by the
decree-holder, by specifying a period within which it should.
be paid, on the lines ot the Bombay amendment to the
Presidency Towns Insolvency Act.
172. Section 14 of the Arbitration Act, 1940 provides
for the filing of an award in a court and under section 1?
of the Act, the court must proceed to pronounce judgment
according to the award-. Section 32 bars suits to question
the award. In the result, an award can be enforced only
by filing it in court and obtaining a judgment thereon,
and a suit cannot be filed on it. An award has to be filed
even for the purpose of setting it aside. A provision is.
therefore, required fixing a time within which an arbitrator"
should file his award. Section 14(2) of the Arbitration
Act provides that he shall file it into court (a) at the
request of any party or person claiming under him and
{la} on an order from the court. It has been held by the
various High Courts' that article 1'38 applies only to an.
application by the party to the court to direct the arbi-
trator to file his award into court. The present position is-
that the arbitrator can file the award even after a party's
application has been barred and he can do so even after a-
suit on the original cause of action has been instituted,
as there is no limitation for his doing so (Gondola?
Motilal o. Mathwra Dos Ram P1-cscd and otherszj. We-
consider that there should be a time limit, for the arbi-
trator to file the award and that the period should be {ill
days from the last date of service of notice of the making
of the award on any of the parties. The Arbitration Act
may be suitably amended to give effect to this recom-
rnendation.
}.'?3. Articles 161, 162 and 1'?3 may be grouped together
and a general article for review of judgment may be pro-
vided, fixing a period of 30 days computed from the date of
decree or order sought to be reviewed.
(1) W4: I.L.R. (r9423 2 -Cal. 69 (Keshri Ilrfufl 1'. Meg Raj) and I.L.R. 27
Put. 35 (jag-ad:':h v. Sunder].
(*) A.I.R. :95: Has. 32.
67
174. Articles 160, 163, 168 and 175.' provide for setting Agra-EIQSO.
aside orders of dismissal for default. For all these a ;',,§,*§.,,_
period of 30 days from the date of dismissal may be pro~
vided.
175. Article 164 for setting aside an ex pcrte decree mm 154
may be retained and combined with Article 169 relating at 169.
to the rehearing of an appeal heard exports. The term
"duly served" in column 3 has been interpreted to include
substitute service. We consider that it could be unjust
to irnpute knowledge of the"-zlecree to a party when the
party was not served with summons. The article should
be amended suitably.
176. Articles 165 to 16'? deal with applications relating to 1:35
execution matters. The existing period of 30 days may :57,
be retained.
1'37. The existing provision in Article 170 for leave to
appeal as pauper may be retained.
A1-t.Jr1o.
1'38. Article 171 prescribes a period of 60 days from. the fig" 'En;
date of the abatement for setting aside the abatement I17-
and articles 176 and 1'77 prescribe a period of 90 days
from the date of death for having legal representatives of
a deceased plaintiff or defendant or a deceased appellant
or respondent added. For these cases the period may be
reduced to 40 days. The court will have the power to excuse the delay in View of the alterations we have pro- posed in section 5 of the Limitation Act and hence there will be no hardship.
1?9. Articles 159, 174 and 175 do not, in our opinion, At-ta.:59. require any change and they may be retained, in their "'''"'"75' present form.
130. As we are omitting article 132, article 130 will M we apply to all purchasers in execution whether decree--ho1ders or not. The period should, we think, he reduced to one yea r.
181. There should be a residuary article for applica- firh 131- tions (including petitions} as in the case of suits and we consider that the period should be the same as at present, namely, 3'years from the date when the right to apply accrues.
CIMFTER XI--CoNcLusroN 182, With a View to give a clear picture of: the proposals formulated by us, we have attached an annexure to the 68 Report, embodying' our proposals in the form of an Act. It is, therefore, unnecessary to summarise the proposals as is usually done at the end of a Report of this nature. M. C. SETALVAD. ' (Chairman), . C. CI-IAGLA, N. WANCHOO, N. DAS, SATYANARAYANA RAD, . C. SEN GUPTA,* . K. T. CHARI.
. NARSA RAJU.
. S. PATHAK, . N. JOSHI, ooodzfipwa (Members).
K. SRINIVASAN, DURGA DAS BASU, Joint Secretaries.
BOMBAY;
The 21st July, 1953.
*Dr. Sen Gupta has signed the report, subject to the Note apponded below.
NOTE BY DR. N. C. SEN GUPTA.
I regret that I cannot agree with the proposal to alter the provisions of the Articles 2, 3, 'T to 9. My colleagues have virtually extended the period in the case of these suits to 3 years on the basis that they are founded on con- tract and should come under the general rule regarding suits on contracts or torts. That may be so, But at the same time there are, in my opinion, reasons of policy why, in respect of some of these Articles, the shorter period of limitation should be fixed.
The reasons for the proposed amendments in respect of Article 2 are firstly that there should be no dilference between the State and private parties in respect of suit on tort and that a suit for compensation in respect of a thing purported to be done by an officer under some enact- ment in force is nothing but a tort for which the Govern- ment is liable. To the general principle of parity between the Government and private persons in respect of limita- tion, I have no serious objection. But there are important differences between ordinary torts by private persons and 'suits under this Article. There may he suits of this charac-
ter which are purely suits for damages for a particular wrong against a particular person. But most of these cases would be cases in which an officer of the Government has been acting or purporting to act under authority of an enactment and in most of these cases, questions about the validity of the enactment or of the interpretation of it upon which the oflicer is acting would be in question. In such cases it is by all-means necessary that such suits should be disposed of as quickly as possible;---so that if the decision goes against the action of a particular ofiicer, the Government may take early steps that further action may not be taken on the erroneman view of law. Further, it must be remembered that the Government is made vicari- ously responsible for the acts of its ofiicers and having're- gard to the extremely large area of Government activities and its responsibility for acts of a multitude of officers, it is necessary that the Courts' decision about the correctness or otherwise of the act of such ofiicers should be made known to the Government as soon as possible.
Public policy requires'that acts of Government oificials purported to have been done under the provisions of some enactments in force should be tested, if necessary, as soon as possible---in order that public adnunistration not , .i_.n--1 1 70 be affected by an erroneous course of action based on wrong application of the law for a long time; and if there has been an error, it should be rectified as soon as possible.
I am afraid that the principle that this makes a discri- mination between the Government and a private person does not provide a correct approach to the problem. The difference in the provisions lies not in the character of the person against whom the suit is brought but in the nature of the claim which justifies a short period.
The injury that can be done by delay is illustrated by the Inter-State Sales Taxation cases. Before the Special Bench of the Supreme Court finally decided on the invalidity of certain State laws, a large amount of money had been re- covered by Government from traders and the situation, if all that money had to be returned in suits brought for compensation was apparently so serious as to call for a special legislation by ordinance validating the realisation already made.
With regard to Article 5, I should have thought that this matter should await our decision in connection with the Specific Relief Act whether suits under section 9 of that Act should be retained. [The basis of the provision of sec- tion 9 of the Specific Relief Act is that possession shoulf be protected. If anybody has a better right to possessic-I', he must establish his title before recovering possession. in- the meantime, the possession should be protected 011. similar grounds section 1-15 of the Criminal Pr .dure Code gives a protection to possession where there is likeli- hood of a breach of peace. In cases where a strong or wily man quietly dispossesses a person, section 9 provides 9.- short remedy for protecting possession, pending any suit for title that might be brought by the disseisor. It is a summary decision for the protection of present possession and there are, in my opinion, strong reasons why this sum- mary procedure should continue.
It is stated in the report that it means a duplication of litigation. I should think that this duplication is already there in many cases which have not'heen touched. For instance where possession is claimed in execution of a decree and the other side objects to the delivery of posses- sion by claiming a right independent of the judgment» debtor and an order has been made under Order 21 Rule 97, that is to be summarily decided on the finding whether '71 the objector is in possession on behalf of the judgment- debtor or not, leaving open a suit to be instituted there- after for declaration of title. For that suit a short period of one year is provided. I do not see why for similar reasons the same provisions should not be made in respect of any summary decision on the basis of possession.
Similarly', under the present Articles which have not been proposed to be repealed, Articles 11, 11(A} and 13 of the present Act provide for short limitation in cases where there has been a summary decision by a court, the princi» ple seems to be that where a matter has been once before the court and the court has given a summary decision, it is in accordance with public policy that the matter should he finalised without delay.
The idea of the majority is that Article 142 of the pre. sent Act should be limited to suits on the ground of possession alone and the limitation for that would be 12 years. If that is so, then a special limitation for a suit on the ground of prior possession is unnecessary. But where- a person who has lanrfuily acquired possession of property is disturbed by another on the ground of his previous pos- session, the latter would have 12 years within which he should bring his suit and in the meantime the right of the person who has possession will be kept in suspense for the long period of 12 years. I do not think that there is any principle of justice or fairness in doing so. If the Articles are to he as proposed in the draft, it would rather seem not that suit under section 9 of the Specific Relief Act should go but that Article I-I2 itself should he simply omitted.
N. C. SENGUPTA.
ANNEXURE The proposals as inserted in the existing Act:
(This is not a draft Bill} [Additions to the existing Act are shown in italics Wher- ever Pflilsible. Corresponding provisions of the exist- ing Act are given in the margin] PART I--Psr:1.1MINe.nr
1. Short .title, extent and commencement.----(1] Act may be called the Limitation Act, 1956.
(2) It extends to the Whole of India except the State of Jammu and Kashmir.
(3) This section and section 26 shall come into force at once. The rest of the Act shall come into force on sea L This
2. l}efl'nitious.---In this Act, unless there is anything repugnant in the subject or context,----- (1} "applicant" inclucles---
(a) a petitioner,
(b) any person from or through whom an appli- cant or petitioner derives his right to apply and .
(c) any person. whose estate is represented by the applicant or petitioner as executor, adminis- trator or other repregentative. . (2) "application" includes a petition; (31! "contract" shall have the same meaning as in 'the Indian Contract Act (IX of 1872) and includes an obligation imposed by law to restore or to «make restitution of any benefit derived by a person, on me oasis of uniust enrichment;
(4) "defendant" includes-
{a) 'any person from or through whom a defendant derives his liability to be sued and
(b) any person whose estate is represented by the defendant as executor, administrator or other representative. , 72 73 (5) "foreign country" means any country other than India, but includes also the State of Jammu and Kashmir;
(6) "good faith"; nothing shall be deemed to he done in good faith which is not done with due care and attention;
(7) "India" means the territory. of India the State of Jammu 8: Kashmir;
(8) "Prescribed period" means the period; of limitation prescribed for any suit, appeal or application, as the case may be, and computed in accordance with the provisions of this Act;
(9) "plaintiii" includes--- I
(c) any person from or through whom a plaintiff, derives his right to sue, and,
(ii) any person whose estate is represented by the excluding plaintifi' as executor, odminmsrator or other representative.
(10) "suit" does not include an appeal or an appli- cation;
(11} "tort" includes all civil wrongs independent of contract; and (12) "trustee" does not include a henamidar, a mort- gagee remaining in possession after the mortgage has been satisfied, or a. person in wrongful posses- sion without title.
Paar II----I..1:mns'Ioi~i or sinrs, APPEALS 8.: APPLICATIONS
3. Bar of Limitation.--Subject to the provisions con- tained in sections -1 to 23 (inclusive), every suit instituted, ap 1 preferred, and application made, after the pres- crigfil period shall be dismissed, although limitation has not been set up as a defence.
Explanations.---(1) A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator.
(2) An application by notice of motion is -made when it is presented to the proper oflice-r.
-» .=.~ ._='.---:3 Sec. 6.
?4 (3) For the purposes of this Act, any claim by way of set-of shall be deemed to be a separate suit and to have been commenced on the same date as the suit in which the set-off is pleaded.
(4) For the purposes of this Act, a coun.ter--claim shall be deemed to he :1 separate suit and to have been commenc- ed'. on the date on which it is made.
4. Where Court is closed when period expires.»-'Where the prescribed period expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
5. Extension of period in certain cases.--Any appeal or ' application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure (V of 1903} may he admitted after the prescribed period, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring' the appeal or mak- ing the application within such period.
Explana.tion.--The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining the prescribed period may be sufflcient cause within the meaning of this section.
6. Legal Disahility.-----(1) When a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor, or is insane, or is an idiot, he may institute the suit or make the application within the same period afterthe disability has ceased, as would otherwise have been allowed from the time speci- fied therefor in the third column of the schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is afiectecl by another disability, he may institute the suit or make the application within the same period, after both disabilities have ceased, as would otherwise have been allowed from the time so mecified.
{3} Where the disability continues up to the death of such person, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the"
time so specified.
?5 (4) Where the representative referred to in subsection (3) is at the date of the death of the person whom he represents afiected by any such disability, the rules con-
tained in subsections (1) and _(2) shall apply.
(5) Where a person under disability dies after the dis- ability ceases but within the period of limitation allowed to him under this section, his legal representative may institute a suit or make the application within the same period after the death as would otherwise have been allowed had the person under disability not died.
7. Disability of one of several plaintifls or applicants.- 'Where one of several persons jointly entitled to institute a suit or to make an application for the execution of a
-decree is under any such disability, and a discharge can be given, without the concurrence of such person, time will run against them all; but,' where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disabi- lity has ceased.
Explanata'on.~----[1) This section applies not only to
-claims for recovery of money but also to claims for the enforcement of other rights including rights in immov- able P*'0P9"til.' Explanation.--[2) The manager of a Hindu Joint Family governed by the Mitakshara 'law shall be deemed to be capable of giving a discharge only if he is in manage- ment of the Joint Family property.
8. Special Exceptions.---Nothing in section 6 or in sec-
tion 7 applies to suits to enforce rights of preemption, or' shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.
9. Continuous Running of TI1ne.----Where once time has begun to run, no subsequent disability or inability to sue
-stops it:
Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.
10. Suite against Trustees and their Representatives.- Notwithstanding anything hereinbefore contained, no suit Sec. 1.
Sea. to.
76against a person in whom property has become vested in trust for any specific purpose, or against his legal represen- tatives or assigns {not being assigns for valuable considera- tion), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.
E'xplanati0n.--For the purpose of this section any. pro- perty comprised in a Hindu, Muhammadan or Buddhist re- ligious or charitable endowment shall be deemed to be pro- perty vested in trust for a specific purpose, and the manager of any such property shall be deemed to he the trustee thereof.
11. Suits on foreign contracts.---('_1) Suits instituted in India on contracts entered into a foreign country shall be subject to the rules of limitation contained in this Act.
[{2} No foreign rules of limitation shall be a defence to a suit instituted in India on a contract entered into in a foreign country unless the rule has extinguished the con- tract and the parties were domiciled in such country dur- ing the period prescribed by such rule.
PART III---Coma-rm-rron or Penroos or LIMITATION
12. Exclusion of time in legal prooeedi.ngs.--(l) In com- puting the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree, sentence or order appealed from and also of the judgment on which such decree sentence or order is found- ed shall be excluded.
(3) The provisions of sub-section (2) shall also apply to an application for leave to appeal or for a. review of judg- ment or for revision.
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy ofthe award shall be excluded.
Expla.na.tion.---- Any time taken by the Court to prepare the decree or order before an application for copy thereof is filed shall not be regarded as time requisite for obtaining the copy within the meaning of this section.
I!-I n.a----
7713. Exclusion of time of proceeiling bona title in Court Sec» 13- without Jnrisdicl:ion.-----(1) In computing the period of limi- tation prescrihed for any suit, the time during which the plaintifl" has been prosecuting with due diligence another civil proceedings, whether in a- Court of first instance or of appeal or of revision, against the defendant, shall be ex- cluded, where the proceeding relates to the same matter in issue and _is prosecuted in good faith in a Court uhich, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceed- ing, whether in a Court of first instance, or of appeal, or of revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other
-cause of a like nature, is unable to entertain it.
(3) The Provisions of sub-section (1) shall apply in like manner and subject to the some restrictions to a. fresh suit filed in pursuance of an order under the provisions of Rule (1)(2) of Order XXIII of the Code of Civil Procedure {V of 1908) notwithstanding anything contained in Rule 2 thereof.
Explanation I.----lu excluding the time during' which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation I[.--For the purposes of this section, a plaintifi or'an applicant resisting an appeal or revision shall be deemed to be prosecuting a proceeding.
Explanation lII.--For the purposes of this section mis- joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
14. Exclusion of time in certain other cases.----(1) In com- puting the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the "day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation prescribed for any suit, or which notice has been given, or jor which the Sec.
-H.-1 nanuclsl Soc. 13.
Sec. :7.
73previous consent or sanction of the Central or the State:
Government is required, in accordance with the require- ments of any enactment for the time being in force, the period of such notice or, as the case may be, the time 1-equiv site for obtaining such consent or sanction shall be excluded.
Exp1anation.----The interval of time between the date of applying for the consent or sanction of _the Government concerned and the date of receipt of the order of each Gov-- ernment (both days inclusive) shall be deemed to be the time requisite for obtaining the said consent or sanction.
(3) In computing the period of limitation prescribed for any suit or application for the ezrlzcution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liqui-
dator or provisional liquidator appointed in proceedings for the winding up of a company the period between the date of institution of such proceedings and the date of appointment of such receiver or liquidator, as the case may be, and, in addition, a period of three months, shall be ex- cluded.
(4) In computing the period of limitation prescribed for a suit for possession by _a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from India and from the territories beyond India under the administration of the Central Government, shall be excluded.
15.El!ectotdeI.thonorbe£oretheacc.ru.a1ofrightto- sue.-(1) Where a person, who would, if he were living, have a right to institute a suit or make an application, dies. before the right accrues, or where such right accrues on his- death, the period of limitation shall be computed from the- time when there is a legal representative of the deceased capable of instituting or making such suit or application.
(2) Where all person against whom, it he were living, 3". right to institute a suit or make an application would have accrued dies before the right accrues or where such right accrues on his death the period of limitation shall be com- puted from the time when there is 'a legal representative of the deceased against whom the plaintifl may institute or- make such suit or application.
79(3) Nothing in subsections (1) and (2) applies to suits to enforce rights -of pre-emption or to suits for the poms- tion at immovable property or of a hereditary ofiice.
18. We-ct at hand or miatuke.--{1) Where in the case of any suit. or applicatiorl for which a period of limitation is p-rear.-ribed by this Act, either---
-la) the suit or application is based upon. the fraud of the defendant or his agent or of any person through whmn he claims or his agent; or (b} the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid,' or
(c) the suit or application is for relief from the causes quences of a mistake; or
(d) where any do-cumerit necessary to establish plain- tifs or epp1ice.nt's right has been fraudulently con- cealled from him;
the pe1-iod of limitation shall not begin to run until the pluintifi' or ctpplicant has discovered the fraud or the mis- telce,e:thecaserrmybe,orcould "
have clircouerecl it, or in the case merit, tnhen he first had the Inem pelling its production.
Provided that nothing in this section shall enable any suittolae bronyhtormpplicationtobemadetorecooer, or enforce any charge against, or set aside any transaction efecting, any property which-
the frouui (in in the case of mistake, has been purchased _for valu- able oomicler-ation, subsequent to the trtmmction in -which thernista.lcewasma::le,byape:-sontohocliclnotlcnowor have reason to believe the mirtnlce had been made. or
(iii) in the case of the concealed. document, has been purchased for valuable consideration by npefaon who was not a party to the concealrne-nit, and .cli:d not at the time of the purchase know or have reason to believe such can-
cealinent;
'Sunni.
.., .-. .n.-w_.u_n.-
Sec.» 30
iii) The Coon may extend the period prescribed for an application for execution of a decree or order, upon such application presented after the expiry of the said period, if the judgment-debtor has by fraud or force, prevented the execution of the decree or order at some time within the said period.
Provided that such application is made tuithin a period of one year from the date of discovery of fraud or of the cessation of force, as the case may be.
17. Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit or an application in respect of any property or right other than on application for the execution of a decree or order, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
{2} Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but, subject to the provisions of the Indian Evidence Act, I of 1872, oral evidence of its contents shall not be received.
Explanation I.--For the purposes of this section an acknowledgment may be sufficient though it omits to spe- cify the exact nature of the property or right, or avers that the time for payment. delivery, performance or enjoyment has not yet come. or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than the person entitled to the property or right.
Explanation II.----For the purposes of this section, "sign- ed" means signed either personally or by an agent duly authorised in this behalf.
13. Effect of payment on amount of debt or of interest on legaey.--{1) Where payma-it on account of a debt or of interest on a legacy is made before the expiration of the prescribed period, by the person liable to pay the debt or legacy. or by his agent duly authorised in this behalf a fresh period of limitation shall be computed from the time when the payment was made.
Provided that, save in the case of a payment of interest made before the 1st day of January, 1928, an acknowledg-
BI ment of the payment appears in the handwriting of, or in 1 writing signed by, the pezson making the payment.
(2) Where mortgaged land is in the possession of the 'mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of sub- section (1).
E'.-rplanotion.---Debt does not -include money payable under a decree or order of Court.
19. Efleot of acknowledgment or payment by anathem- per-son.---{1) The expression "agent duly authorised in this behalf," in sections 17 and 13 shall, in the case of a person tinder disability, include his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment.
(2) Nothing in the said sections renders one of several joint contractors, partners, executors or m'ortg'ageeseharge- able by reason only of a written acknowledgment signed or of a payment made by, or by the' agent of, any other or others of them.
{'3} For the purposes of the said sections----
{a} An acknowledgment signed, or a payment made, in respect of any liability, by, or by the duly autho- rised agent of, any widow or other limited owner of property who is governed by the Hindu law, shall bee valid acknowledgment of payment, as the case may be, as against a reversioner succeeding to such liability; and {b} Where a liability has been incurred by, or on be-
_ half of, a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.
20. Most of substituting or selling new plaintiff or IIefendant.--{1) Where, "after the institution of a suit, a new plaintiif or defendant is substituted or added, the suit shall, as .regards him, be deemed -to have been instituted when he was so made a party, unless the Court, if satisfied that the omission to include the said ploint-if or defendant was due to a mistake made in good faith, orders that the suit shall, as regards him, be deemed to have been institut-
ed. earlier.
Sec. 2:.
Sec. 2.2.
E32 (2) Nothing in sub-section {1} shali apply to a case where n party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintifl is made a defendant or a defendant is made a A21. Continuing breaches and wrongs.--In the case of a continuing breach of contract and in the case of a continu- ing wrong independent of contract, a fresh period of limi- tation begins to run at every moment of the time during which the breach or the wrong, as the case may be, con- tinues.
22. Suit for compensation for not not actionable 'with.
-out special damage.---In the case of a suit for compensa- tion for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period oi limitation shall be computed from the time when the injury results.
23. Gmnputatlon of time mentioned in instruments.- All instruments, shall for the purposes of this Act, be deem- ed to be made with reference to the Gregorian calendar.
Paar IV--AcoU1srrIoN or OWNERSHIP or POSSESSION
24. Exting-uishnient or right to property.--At the deter- mination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Pan-r V--S.wntos
25. Savin£'S.--(l} Nothing in this A.ct------
(a) shall affect section 25 of the Indian Contract Act, 1372 (IX 01 l8'i'2); and (hi shall apply to proceedings under any law for the timebeinginiorce relating to marriage and divorce. (Acts to be specified in the Bill).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the prescribed period in this Act, the provisions of section 3 shall apply, as if such period were prescribed therefor in this Act, and tor the P1-"Pose of J . ..s an-..a.sn._ai_n;a.;n L 93 any period of limitation prescribed for any suit, appeal or application by any special or local law,-the provisions con- tained in sections 4 to 23 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law;
28. [Section 30 of the present Act would have worked
-itself out. A new saving provision for the transition may '-be incorporated as suggested in paragraph 62 of this :Bepor|:.] Dcu:rip1:ionot'auit,:ppealor Pcrioqof 'I1m¢fromwh.ichp:riod Articlesinthc Ipplimtion limitamm heginstorun , present Act] covered 1 ' 2 3 4 FIRST DIVISION : SUITS Pnfrl Oam:roctand'I'ort ~1.&u'z:famdedauuuu-aaor'I'inac Thdauouwah'c!at.ie:,1oo9.rgto onto:-¢. _-pun auaudacuhmauuu. 3.5oto84.86. TI 97: 99 W raa,1oP,'to1:r, n :15. :16 :31.
Purrll Mmr|blePropeng
2. To recover specific mouhle Thne Tiednteonwhichthe 48,49 propertyormvalne. yen: umleofnctionaocz-mes.
3.Toreoove1-mnnblepmpu-ty "I'In'ce fitdcu rdimal d¢POIitedDl'Pl'Wned.fmm I you: dawning 1"' "5 depoutoryor puwnoe. T
4.Toreoovermonbleprop=rty'I'hree 'Whmthenlebeoomu Se :1 dcpmiouimpnnedundaften 3-'ears knannmdiephinfifi 5i§$)( can wudsmldfiythe or pgwnnefiorvaluable ' -
tum.
Parr III 'I'1'ustI&T1'uatPrapel'l:y
5.Taroeo7crponessionofim-Twelve Whcnthggsnsf bc- First? mwablcpzoperry oonvcyrcdar ycu-s- eumuekrlowneéthc Is" In) bequeathed |nu1.utandsfi:er- plnintiff. wa.rdstransfen'edbythsetru.s- toe for valuable considerltinn.
figfihndtharupmqfmwwb Three Whcnthemnnfm-becomes 4 nropn-tysaid. ens Iznmrntotheplnintifl. (F:-s put)
7. To set aside a transfer of im-
movable property comprised in a Hindu, Mohammedan or Buddhist religious or charitable endowment, made by a mans-
gcr thereof for valuable consi-
deration. '
8. Like suit in respect of mouazbfe property sold.
9. By the manager of a Hindu, Muhamntadan or Buddhist rc-
Iigious or charitable endow-
men: to recover possession of movable or immovable pro-
perty comprised in the endow-
ment which has been sold or transferred by a previous mana-
ger for valuable consideration.
Paar IV Immovahle Property to. By a mortgagor (:1) to redeem or reoover posses-
sion of immovable property mortgaged.
{(2) to recover sur lus collections ' received by t c mortgagee, after the mortgage has been satisfied.
II. By a mortgagee
(a) to enforce payment of money scarred by :3 mortgage or other-
rvise charged upon immovable Pl'°P¢FTY-
(:5) for forerlonire
(c) for possession of immovable property mortgaged.
12. For possession of immovable property based on possessor title, when the laintifi' whit:
in possession o the property has been dispossessed.
I3. (:2) For possession of immo- vable property or any interest thcrcln based on mic.
Twelve Years.
Three Twelve Twelve Three years.
Twelve years.
Twelvc Years.
Twelve years.
Twelve years.
Twelve years.
.E'xp!anaI:'ens --For the purposes of this Article (£3 The title of a remainder-man or rcversioner (other than a landlord) or devisee shall be deemed to have accrued only when the estate fell into his possession.3
When the trains' in known to thftm-plnmc'°%:iE]l'.u 15*-A . I,"
When the sale becomes 48-B known to the plaintilf.
The date of death, rcsig- 134-15! and nation or removal, as I34-C the can may be, of the transfer, or the -
pomnuen: of faint: as manager, 21' as later.
When the right to re-dccrn 143 a: x34 or to recover possession (Second Pitt} accrues.
When the mortgagor re. [gs enters on the mortgaged property.
When th :1 E _ ......,..::':::.":* W is When the money secured 147- by the rnortyge be-
comes due.
Wimu tkemoftgagcc bc- I35 8: 145. Games entitled ro pos- scrub».
The date of disposscssion :4;
When the possession of 47, I38 and' the defendant becomes :44.- advcrse to the plain-
tiff.
I-I-0 I.|.I (if) The title of 3 person entitled to possession on the death of a Hindu or Muhammadan fennlenith a Eavtnlted irate:-'55:, or life, mare shall be deemed to have eocrucd only when the fernale I. --irli.ISl'l 35 .mnnns4.:
I 2 3 4
(iii) In the cases specified in Expiaraations (i) 5.: {if} above the possession of the defmdtmt shall be deemed to have become adverse only on the rcspe|':tI'tr¢ dates of accrual of title.
(iv)Apurchnseratasaleinexoeutionofadccreeshallbedeemed I36 8: 1.37 to be a representative of the judgment-debtor who was out of possession at the date of sale.
14. Like suit where the plainlilf Twelve has becomeentitled by reason years. of any forfeiture or breach of condition.
15. By a landlord to recover Twelve possession from a tenant. years.
Page V Other Claims
16. For the balance due on a mu- Three tual, open and current ac- years.
count, where there have been reciprocal demands between the parties.
17. By a principal against his agent Three or factor for an account . years.
18. By a principal against his agent Three for neglect or misconduct. years.
- I9. Foran BJ:DDl.ll'lt and at share of Three the profits of a dissolved part- years. nership.
20. To declare the forgery of Three instrument issued or registered. years.
21. To obtain a declaration that Three an alleged adoption is invalid years. or never, in fact, tool: place.
22. Other srrits for declaration. Three years.
23. To cancel or set aside an ins- Three trument or decree or for the re- ymrs. scession ofa contract.
24. To set aside a transfer of pro-
perty made by the guardian of a ward,
(a) by the ward who has attained Three ma1ority'. years.
When the forfeiture is incurred or the con-
dition is broken.
145' When the tenancy is determined.
[39 The close of the year in as which the last. tern ad-
mitted or proved is entered in the accounts ;
sud: year to be com-
puted as in the account.
When the account is during the continuance of the agency demanded and refused or where no such is made, when the agency ter-
minutes.
83,39 'When the neglect or this-
conduct becomes known to the plaintiff.
The date of the dissolution. 106 When the issue or registrz- 92 tion becomes known to the plaintifl.
When the alleged adop-
tion beeomes lznown to the piantiff.
Whm the 1-iglhr to first accrues.
When the facts entitling the plaintiff to have the instrument or decree cancelled or set-aside or the contract rescin-
ded iirst become known to him.
11893, 119 and :29 91: 314 Hit when the ward attains majority.
I 3 3 4
(b) the ward': legal refinin-
Carter:
{5} When the ward die: with': 'new [Fire the mtnfaudzu three years fnmgu the data yen. . auammgmajamy.
(ii) Wifaega r}u_zu::_trd die: before Th-or llfinthuwddin.
attammg mqronly. Jlllfl.
25. To enforce a right of Qre- One Whenthe take! In em tion whether the right year. under Iele is auncled on law or general to be impeached usage, at on special connect. Iital pnueuion whole sold or, where eubtoct part of the when the inatrulntttlt of rule is registamd.
16- (a)ByIperIonaa:-instwhom Thedateofthefimlarder. 1 1-3:. [an order under Rule: 63 or H 103 Order XXI qf the Code of Civil Procedure or under Sec. 23 of the 'Presidmcy Small Causes Courts' Act has been nude no emblieh the right which he claims no the property comprised in the order. ~
b) To alter or to set eéid: G33 Do. 135: I4 .38 decision or order Cnurtixtany thnnnsujgnvranynct or order of an oflioer of Govt. in his afliciafcapecity.
(c)T0set*asidcasalc byacivil One Wbentheuleiaoonflrmed :2 or Revenue Quarter 3 sale for grant. or would otherwise n.rreareofGovt.revenue-arfor . htrtrebemmeflnalnnd my demend-recow.-table as ' sucharrears.
conclusive had no such nut been brought.
:7. Upon} a iudgment, including Three 'I'hedueof iudpnent-M :11 ans. efqretgn iudernennur I 1100- Vein. xeeogmunee. gmsanoe.
:.3.P propert51which_tl;eplain- Three Whlllheplfiuifl B tit¥rhasoonve1.redwh11eInsan=- years. restored to unity and "
has knowledge oil' the ' duaregnnoe.
.Tmakegoodoutefthegene- Tin-ee 'I'heduaeofthe'I'rustee's :9:-aloesuteofudeceuedlruteeyeau. deat.h,or,'ifthelues 9' thelossoccasionedhyabreech Manama-runxggd, of tru.st.. the date of the loss. ::;:1::=...e,%=*..:*...';°.:_i°..*,£":*,.=°i' "'f,.'?.:'.,'° Wm"; ';=;:*.;.:' '"1: "3 tor, or fore: distrtbutive li1I.'lB deliverable.
of the property of an intestate, against an xecutor or adminis- tratnr or some other person Ie any charged with the duty of dtstribn t1'ng?;t:'te estate 37 I 3 3 4
31.Fo1-poaseanionofahcreditmr Tun-.1-re W'hend:e.defend:ntuk:s 124 oilicc. yum. pouesdon oftheoffine -
adverselywthepiainfiff.
hcrediury ofliocis I-henthe udy.-roof nreusunllyrccei ,ar iflilalcuenopro mwhen the duties thereof arc umllly pafmmod.
3:.Suitdu:ringtheli.feofnI-I:'ndu Twelve The dam of the :25"
m by: gun. alienation.
hwof Twelve 136 uidzhisfltlm.-.r's|l5cn:non' of Fm' pe:typm"." pm"
nnoestralproperty. '
3.;.B;-apenon:xnludedf:om'I'w:lv: Whu1fl1ee.-n:lusinnbe- :31 ' famil - years. cunneihmwn $3: ariglgtol amgrhtegaig? plaintiff. ''3 an _ 35.3131-Iindufcrn1reI11'of1".ir_u Whanthenn-nun-e 1:8 muntcname. you-3. payable. -
36.Byor_onb:hnlfctfanyloc|l Thirty 'I'hedn:eoct':hediIpm- A mdzgnzyforpoueuionofany years. Icliuaordilnmunnu "6. pubhcstcetnrmadmmy mag.
thcmeof from which If becndiaposaeaned or ofwhichithudisoonnmmd poueumn.
. behnlfof Whcnthe ' of 3?$en!C:nu-amt" mg-llgeng SraflaT'i1"}rla':. hlmmm - I49 arethe norununderthii Supreme inthegname sgalmtllkesultbya ofiuotiginaliudndicnon. printeperontu. 1=m'v1 Iluidury 3E.Sui1IiorwHd|nn' GITBIH Whentherisllttllue no is nan. ancmu. (merging whueinthh :5,l6.1o3, I04 I12) SEGOI'¢'DDIVlSION:APPEALS. from ozderof '
39. the an afncgnlpll Pmu:d11ne(Vc:E1B93) flvain-SuOSIu:'om(1 Illd(1)'T'h'l Thethmofthc order :5 ofsxfion fly ofrlu Gvdl. Illanfll.
' Th t-==.e'.-d:.;=:...3~.;-.*:;~s:.2,:r 3* .m .,.....;'""{.£""°f 1 2 3 4 40- Under chesamecade to any Thlrty Thedateofsuchdec:-eeor 150515; 53¢; as nature; or dun. order or nentemne ormr!¢rlt1IeCoJeof ow" Pra- ' cedars (T/'a_|'19o-8)la any war:
frouamydea-uarorder. 41 Framadecruarorderof mgr Thirty Thedntcofthedecraeo: 151 Higkcnurx to Ihesamaecourr. day: order. . 7 THIRD DIVISION-aAP?I.ICATIOHS
42.Un:1e:theA:bitntinnAct. ' ion 194°:
)fcI!thefilin|incuI1nofI.n Thirty Thezjnteofeenficeofdne 118 wtwltd. dm. - math: mabng (5) for setting aside an_awa1'dor 'I'h|tI:y The fiat: of service of ['13, ' enmnrdremmed for dun. nuuoeofthefflingof don. theuvud.
43.UnderthcCodeofCi7ilPro- Tlurty Thedatecfdeathofthe :_-75, ced1uetohn~rct1'I¢1=Sl1l'¢9,1'=-'dl!'|- ¥|III1-t|fl'sIPP¢119-|1I:d=- "13 aentntwesofa plIm- uzdannorrespondent, fifi',appcllInt, defendants: uthecuennybe respondent, nu-:1: I pm)'-
44.UndertheeameOu-de form Thhty 'I'hedateo£ahaI::m:m:. :71 order no set aside an aba'ae- den.
ment.
+5: T° -'°'.;':::.°1a:,**;i:.;:'..'&=?...°.:'s.:.' T..':*'*.' """""°°""""'"" ' ";"a~'.'~"' for def:-nItot'IPP¢I!lI1°_=°1' far failure to pay costs 'of acwiceofpmoesaortofurmsh securityfoccostsorothem-Iae notproeeclned.
T aide decrcepasaed Thirty 'I'hedue ofthe deems 46°gx°;a::ormr.chearmappeaI days. orwbererheeummom exec;-cedorheardexparte . ms nutfliutyluerved hndhwwledge of the decree.
' F 1.7!: lb": icltgrufi ' ed ' E"""""°"'""omz«°' 5"3?°°':Se°{':oae3}"::ivaP-we-A-n""'" Tc'r'r"7&':9oa)-sn.::.i';'.3'.€ deemadta dueunice.
47.Fot|en1ctso1ppeI:andde-Tcnd|yIWhuItlIcIum1Imn:ia fendlsuitII:KlerIunnnarypro- served.-
'g_Fgr:-guieeuaf-"'7meIIlbyany Thndltleoftllcdeaeeeot _1=°"_1,,;'pa-gmgntofflzeamuuut Thirty Ihednneofdeu-ee 49 of I. decree by insulmcnts. days _ In mfm-uncut f 'I7:-an .d'ca-u ° 5° 1% For-rm' mg' a mandfito N'; years. where: it fixedfgrr f 'I 1); 133 Jr 134 I)(e) of tin aunasne-5' or other lmfwkhlinebdqizycru.
39I 1 3 '4
42) For the exearttbn of any Twelve When the decree or order ctlurdecreear order of art}! years. became: enforceable (or. civil Court. where the decree or any subsequent order di-
recna any payment of money'-or the delivery of any property to be "
nude' at a eertain date or at recurring periods, when defnlt in making .'Pram'deaT that an application for the paymemor delivery flu execution or enforceurem' inrespectot"whichexe- :82, :83, Sec. afa deereegranring :3 pa-pelual -cation is sought takes 48 RC. irsjuuetrlon shall not be subject place. to any period' of Jinritalim. '51. To record an adjiurmmt or Thirty When the payment urad- I'.-' _ ralirfaetianafa decree. days. justment is made
52. To set asides salein execution Thirty The din: of sale 16 of a_de1;reeincluding_a.ny such days. m by 1, Judgment
53. For porussien by _one d.is- Thirty "I'hedIte-ofdispossession 155 possessed of ilnmovnhle pro- days. perry and disputing -the right of the decree holder or' pur- chaserntasalein execuuonof a decree.
5;. For possession after remomhg Thirty The due of resistance or 16-,- mesistance or obslruction to days. obstruction. of possession of im-
rnou e property decreeed a sold in erecution of decree. I i 55. For delivery of ion by Om: 'Whenthesalebecomes rs , n prurchner orl] _ immovalgle year. absolute. 0 property at 1 sale In execution of I decree.
56.ForIeIretaeppealaaapauper Thirty 'I'hedI.teofdecre=e ap- no
51. Toauycourtfarlhuxcreiuaf Thirty Tfiedauefehrduruor iupohnrs nuruhnunder the 'clays. erderorrenmlee with Code ofCpviIorOI'%aII're- ' to be revised. eeduu.
' To the High Caurlfor at eem'- Tin':-t_y Ti: Jon the deer N smfienu offirner: to an the dew. order or finance a, E. In Court er artidu ., .14 --.uu_,u_..,._.;.---» an! _ . \...___...... ,=- ,. -:.:
5?' siodglu zflfauapifit for <-=.:;:.,.:. W W M '"L.f1:.}:',:2"»*;".a."°;3:.%'?.:,';?' 8% 4°» Tr;;.=w=~ M" v (C) in ofllercasas . . . Tm: of judflum: or
60. Other Itpplicttiénu fm-_which Three When the right to apply up pr:-ind of limintiuu is pro- years. accrues.
udcd _by av}-Iawfor the rim hair as force. - ' I No11.--.Articles d:1ete:l(ifn'dc notes) 1, 5. 17, 13, 45, 46,95, 96, 1:: 31:1 130.
Nur_'_,.* I33
175. III APPENDIX I Erncror was rot-onus owrnnumwrnuomoruunanmt Period incrused Period reuinad Period redtlced KM Sun 1 Cgodtya to 3 years) 10 I16 _ 11 117 :1-A 118 :2 119 (5 years to 3 gain)-
13 no :4 In 37 to 115 1:3 to 121' 118 |.(Oncynu-tothrecyears) 132 129 1341:0144 I30 (lay:-nrstofiyun} £46 131 146 -5» us I47 1 so years to 12 year;
I 60- ]'$I'I$3O J bfimyunmmmyeus) saaruu ;33a:g:2auasaaa¢.q, " ('I'hrae.-ycantuxzyun).
Appulr, Apfliamfml, ac, Isa (1 day: no so days} 2:5:-_f_--_:s4 :55 6° 5 I59 171 *3} I 51 {:0 day: to go days) 163--1-yo 1;: an' n 3° 160 (15 day: tn 30 days) :74 :55 :5: (rsdmwacdnys) :15 11773 (godnygmgaaygy 162 {an days to so dnrsl 113? :33 I30 (3 Rare to I 33) Total 3: articles 123 mic.-la: 2: acid;
(Articles I. 3, -I» 5. 17. II, 45, 4,6, 1:1, no have been animal.) 91 u .- 1- o .u 51::-Q-4 u:
APPBEIJIXH Ctulfidlillh mHt.tbo|Iug' !hA!'u'dalirthExIJ¢I!w" A andtilCol'rflfhJ!¢t' ArfickinfiIS&lhBwfieAmumHeof3erepa¢.
Existing - Cor-mpaufiig E.t:'.m'ng Armin _pr-ooinau, 9' any, Amara: ' prqornonr, ifau, In the man proposal: an tkeneul pr {U {2} (I) (2) I - . .- . (To be omitted) 49- 2 2 . . . - . I 50 1
-3 . . - . (To be omitted) 51 . 1
-4' o - - ~ _ 52 . I 5 . (To be onntted) 53 . 1
-6 . 38 54 . I '3' - - I 55 . . I 3 I 56 . . I 9 - I 57 . I I0 . - 25 58 . 1 :1 . 26 59 , I I3 1 u 25 & . I 13 a u 25 61 _ I I4 . 2: 62 . , I 15 - 3 6 - . I I5 . . . . 38 ' -fig _ . I :7 . . . . o be omgtted) 65 . . . 1 18 - - - - a be ommcd) -S6 . . . 1 19 - - - - I 67 . . I 31: - - . . I 68 . . 1 31 - - - 1 69 . . I 13 - - - I 70 . . . I :3 ' ' ' I 71 o 0 I I 2;. . o . . i g _ . , I . . r . . _ _ . I :3; g 5 . . : _ _ I I as - - . - r 75 . . . i 39 - - - - I 1?? . . . I 3° ' ' ' ' I 78 n - n I 31 - . . I 79 . , 1 31 I - . I 30 n . . I 33 v - r I 81 - . . 1 34 - - - I 3: - . . 1 § ' I o I n .. . I ' 31 - ' i :4 ' ' ' §
- - 5 . . . 1 33 - - I 86 .- . 1 39 . I 8-; . . 1 40 - - . I 83 . 1';
«I1 ' - - I 89 . 17 4: - - - I 90 II :2 . . . , I 9; _ 23 . . . . ' p _ 2° 45 - - . . 3'9 be owned) 93 + . 3;
" ' ' I I DO. H. ¢ . . 1.
:z''--*: a---8'-=.s:.
43.5 . . . . 3; 5 . 3 1 , 43-3 . . . . 'z 33 , _ _ ,5, 0 _ arm»; I-1.-AC0: en-I {I} (I) (8) m unuusnnu m nmunpnnanunuusuunnuawwuuanfiaasuumm ..o.u........_....-_.._no_.p..-..... -nrlllltll-.
.u._unna_.a._-.--.n...nuo...couo...u..n.-
beandnad) ..:;»amm.;.:=n:a..nnnumn»nnauu I I A. I 0 O I I U A I I Q h um.
Icon.-coves-on---ounoc-9-.nooo-sa.u¢...u-t u-oooooucrc-n ¢-..-aun-_..onu-oI-
nllcniulutli uuncnuluouoan 3Mmmm.mm£m.$mm...m.mmmmmfiaussnnun "£3"...
0u msssuuuuuu 0 v-pans.-nlonunoocov...
n . I in.-.1 .-m..m..manm4a I APPENDIX III Sudolsrxons nr nssescr or omen Acts I. Contract Act.--(1) The definition of the word 'Gon- tract' should he amplified to include 'quasi contracts', con- sistently with the trend of modern opinion in other countries in favour of accepting the principle of restitution of unjust benefit or unjust enrichment as the basis of claim. {Paragraphs 11 to 12).
(2) The decision of the Madras High Court in Anne- pumamma v. Akayya, 36 Madras 554 is that one joint cre- ditor could give a valid discharge so as to bind the other. The other High Courts have taken a different view. The latter view should be confirmed as the correct 'view' by suitable amendments to section 38 of the Contract Act. (Paragraph 27}.
II. Specific Relief Act.----Section 9 of the Act has encour- aged unnecessary litigation as any decision in a suit under that provision is not final, whatever he the decision, an- other regular suit to establish title is always open and is generally filed. The section should be deleted.' (Para- graph I45). ' III. Civil Procedure C'ode.--(1') The provisions relatingto claim petitions and claim suits help only to encourage mul- tiplicity of proceedings. The same questions as regards claims and objections are first decided in summary proceed- ing and the parties are then driven to suits under order 21 rules 63 and 103. It would be better if the claims or objec- tions at the petition stage are themselves' treated as suits and disposed of. (Paragraph 149] (2) Section 48 of the C.P.C. providing an absolute period of limitation for execution applicationsmay be -deletedeas -a consequence of the provisions therein being taken over to the Limitation Act. (Paragraph 1'10).
1'3} The definition of decree in Section 2(2) should in-
-clude awards under Section 11 of Land Acquisition Act.
(Paragraph 151).
IV. Insolvency Acts.-----The most efiective way of instil- ling a healthy fear in the minds of dishonest judgment- debtors would be to provide that if a decree for n1o'ney remains unsatified for a period of six years it would 94
-. .a»n-.....-on-an 95 constitute an act of insolvency and the court may, on the application of the decree holder declare the judgment- debtor as an insolvent. Such a provision has been made by the Bombay Amendment to the Presidency Towns Insolvency Act and a similar provision may be adopted for the rest of India. {Paragraph 171).
V. Land Acquisition Act.--(1} The award by the Collec- tor under section 11 should be made enforceable by treat- ing it as a decree within the meaning of section 2(2) of the C.P.C. (Paragraph 151).
(2) A time limit, say 6 months, should be fixed within which_the Collector must pay or deposit the compensation and on application by any person interested, the court may direct the deposit of the arfiount in court. (Paragraphs 151, 152).
VI.' Succession Act.----(l} The provisions in the Legal Representatives' Suits Act and the Fatal Acc'dents Acts re- lating to the question of survival of the cause of action should be brought under the Succession Act by amending section 306 appropriately. (Paragraph 115).
{2} Actions for malicious prosecution should be brought within the exception to section 306. (Paragraph 115}.
VII. Legal li';Bpreseiitai:lVes' Suits Act.----The provision which prescribes that the actions should be in respect of a wrong committed within one year before the death should be deleted having regard to the period of limitation now proposed, for such actions, vi.z., three years from the date of cause of action. {Paragraph 114).
VIII. Arbitration Act.--A.n award can be enforced only by filing it in court and obtaining a judgment thereon and a suit cannot be filed on the award. Even to set aside an award, it is necessary to have it filed first. Provisions such as -those in section 37(2) recognising partial or preliminary arbitrations would seem to need' revision. (Paragraph 172}. A time limit of 30 days should also be prescribed for 'the arbitrator to tile the award.
IX. Transfer 01' property Act.----It is doubtful whether in view of the definition of 'English mortgage' in the Act, the mortgagee under this mortgage would be entitled to recover possession. The position should be clarified (Paragraph 125).
X. Easements Act.--The Act should be extended so as apply to the whole of India. (Paragraph GIFIPID-PLH-59.I'2J'1.auH6-? 7 -500.