The Limitation Act, 1963

[Cites 447, Cited by 0]

Law Commission Report

The Limitation Act, 1963

LAW COMMISSION 'OF INDIA I

EIGHTY-NINTH REPORT
ON V
TI-IE LIMITATION ACT, 1963

GOVERNMENT OF INDIA
Ministry of Law, Justice and Company Affairs

CHAPTER 1

CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 3

CHAPTER 6

CHAPTER 7

I CHAPTER 8

CHAPTER 9

CHAPTER 10

CHAPTER 1 1

CHAPTER 12

CHAPTER 13

CHAPTER 14

CHAPTER 15

LAW COMMISSION OF INDIA
EIGHTY-NINTH REPORT
ON
THE LIMITATION ACT, 1963

CONTENTS

INTROD UCTO RY.

SECTIONS I AND 2:
PRELIMINARY.

SECTION 3:
THE BAR OF LIMITATION.

SECTION 4:

EXPIRY OF
CLOSED.

SECTION 5:
EXTENSION OF THE PRESCRIBED PERIOD FOR SUFFI-
CIENT CAUSE.

SECTION 6:
LEGAL DISABILITY.

SECTION 7:
DISABILITY OF ONE OF SEVERAL PERSONS.

PRESCRIBED PERIOD WHEN COURT IS

SECTION 8:
SPECIAL EXCEPTIONS TO THE PROVISIONS CONCERNING

DISABILITY.

SECTION 9:
CONTINUOUS RUNNING OF TIME.

SECTION 10: _
SUITS AGAINST TRUSTEES.

SECTION 11:
SUITS ON FOREIGN CAUSES OF ACTION.

SECTION 12:
EXCLUSION OF TIME IN LEGAL PROCEEDINGS.

SECTION 13:
EXCLUSION OF TIME WHERE LEAVE TO SUE OR APPEAL

' AS PAUPER IS APPLIED FOR.

SECTION 14:
TIME TAKEN IN INFRUCTUOUS LEGAL PROCEEDINGS

SECTION 15 :
EXCLUSION OF TIME IN CERTAIN OTHER CASES.

CHAPTER 16

CHAPTER 17

CHAPTER 18

CHAPTER 19

CHAPTER 20

CHAPTER 21

CHAP [IR 22

CHAPTER 23

CHAPTER 24

CHAPTER 25

CHAPTER 26

' CHAPTER 27

CHAPTER 28

CHAPTER 29

CHAPTER 30

CHAPTER 31

CHAPTER 32

CHAPTER 33

CHAPTER 34

CHAPTER 35

SECTION 16 2
EFFECT OF DEATH ON LII'xIITATTON.

SECTION I7 :
FRAUD AND MISTAKE.

SECTION 1:: : '
ACKNOWLEDG};'M[ZN'l'.
SECTION 19 :

PART PAYMENT.

SECTION 2-') :

ACKNOWLEDGEMENT OR PAYMENT BY ANOTHER
PERSON.

SECTION 21:
ADDITION OR SUBSTITUTION OF PARTIES.

SECTION 22 Z
CONTINUING WRONGS.

SECTION 23:
ACTS NOT ACTIONABLE WIT I*I(_)U.T SPECIAL DAMAGE.

SECTION 24 :
COMPUTATION OF TIME.

SECTION 25 ; A
ACQUISITION OF EASEMENTS BY PRESCRIPTION.

SECTION 2.6 2
EXCLUSION IN FAVOUR OF REVERSIONER OF SERVIENT
TENEMENT.

SECTION 27 :
EXTINGUISHMENT OF RIGHT TO PROPERTY.

SECTION 28 :
A-MENDMENT OF CERTAIN ACIS.

SECTIONS 29 TO 32 :
SAVING. TRANSITIONAL PROVISIONS AND REPEAL.

LIMITATION AND THE AMENDMENT OF PLEADINGS.

ARTICLES I TO 5 :
SUITS RELATING TO ACCOUNTS.

ARTICLES 6 TO 55 :
SUITS RELATING TO CONTRACTS.

ARTICLES 56 TO 58 :
SUITS RELATING TO DECLARATIONS.

ARTICLES 59 TO 60 :
SUITS RELATING TO DECREES AND INSTRUMENTS.

ARTICLES 61 TO 67 :

SUITS RELATING TO IMMOVABLE PROPERTY.

CHAPTER 36

CHAPTER 37

CH.-XPTER 38

CHAPTER 39

CHAPTER 40

CHAPTER 41

CHAPTLR 42

CHAPTER 43

CHAPTER 44

ARTICLES 68 To 71 :

SUITS RELATING TO MOVABLE PROPERTY.

ARTICLES 72 TO 91 :
SUITS RELATING TO TORT.

ARTICLES 92 TO 96 :

SUITS RELATING TO TRUSTS AND TRUST PROPERTY.

ARTICLES 97 TO 112 :
SUITS RELATING TO CMISCELLANEOUS MATTERS.

ARTICLE I I3:
SUITS FOR WHICH THERE IS NO SPECIFIED PERIOD.

ARTICLES II4 TO II7 :
APPEALS .

ARTICLES 118 TO 136 :
APPLICATIONS IN SPECIFIED CASES.

OTHER APPLICATIONS.

SUMMARY OF RECOMMENDATIONS.

D.O. No. F.2(6)/82-LC?'

K_ K_ MATHEW Shastri Bhavan,
\_' New Delhi-110001.

February 28, 1983.

My dear Minister,

I send herewith the Eighty-ninth Report of the _Law Com-
mission recommending certain amendments to the Limitation Act,
1963.

2. Revision of the Limitation Act has been taken up by the Law
Commission suo mom in view of the importance of the subject as
branch of adjective law. The present Act was enacted about 20
years ago. The Act is an enactment of general application and
importance. It is, therefore, proper that such an important enact-
ment is reviewed from time to time.

3. During the last 20 years extensive developments have taken
place both in law and in society. It is proper that those develop-
ments should be taken note of ma comprehensive manner.

' 4. The Commission wishes to express its appreciation to

Shri P. M. Bakshi, Part-time Member of the Commission, for the
ﬁnalisation of the Report. We also acknowledge the assistance
rendered by Shri V. V. Vaze, ex-Member-Secretary in preparing the
initial draft of the Report.

With regards.

Yours sincerely,
Sd/-
(K. K. MATHEW)

Shri Jagannatli Kaushal,
Minister of Law. Justice & Company Alfairs.
Shastri Bhavan,

New Delhi.
A (V)

LAW COMMISSION OF INDIA EIGHTY-NINTH
REPORT ON THE LIMITATION ACT, 1963

CHAPTER 1
INTRODUCTORY

1.1. Revision of the Limitation Act, 1963 has been taken up by the Law l:eViIsi0n_t0_f
Commission of India suo mom, in view of the importance of the subject as ahgn
branch of adjective law. The Act is an enactment of general application and
importance; its provisions come up before the course daily for interpretation.

An unjust or unsatisfactory rule of limitation that bars the institution of legal
proceedings means that the remedy contemplated by the law for the enforce-
ment of a legal right becomes futile, or--if the injustice or unsatisfactory charac-
ter of the rule consists in its allowing an unduly long time for the pursuit of a
legal remedy~then the interests of justice are defeated, because stale demands
would thereby be encouraged. It is therefore proper that such an important
enactment is reviewed from time to time. The present Act was enacted about
twenty years ago. During this period, extensive developments have taken place,
both in law and in society. It is proper that those developments should be

taken note of in a comprehensive manner.

The present Act was passed after the Law Commission reported on the
earlier Act of 1908 and largely implements the recommendations made by the
Commission} It is therefore particularly appropriate that a review of the law
may be undertaken by the Commission again.

1.2. The statutory law of limitation has a long and interesting history in History.
India, which takes us at least to 1859. Before that year, there was no uniform
law of limitation. Various Regulations, applicable to the Company's Courts
dealing with certain topics falling within the law of limitation, were in force
in the Mofussil of the three Presidencies. For the Courts established by the
Royal Charter in the Presidency towns, the English law was taken as applicable.
To introduce uniformity in law. the limitation Act (14 of 1859) was passed.
The Act came into force in 1862, but covered only suits, and, moreover, did not
contain any provision relating to prescription. The Limitation Act. 1871 (9 of
1871), which replaced the Act of 1859, added certain provisions in the nature
of law of prescription also, and introduced. for the ﬁrst time. the arrangement
which one ﬁnds in the present Act--namely, the general principles relating to
computation and exclusion of time ﬁnd a place in the body of the Act, while
the actual time--limits for various kinds of proceedings are placed in a tabular
statement. forming a Schedule to the Act. It may also be mentioned that the
Act of 1871 introduced a period of sixty years applicable to a suit of any kind
brought by the Government. This Act was replaced by the Limitation Act.
1877 (15 of 1877). Besides making certain minor changes in regard to the
classes of suits expressly covered and the time limit or the starting point of
limitation for various suits, the Act of 1877 extended the operation of the law
of prescription. by making two additions to it. In the first place, while the
Act of 187] had provided that the right to land or to a hereditary office could
be extinguished by lapse of time, the Act of 1877 extended this'principle to

'Law Commission of India. 3rd Report (Limitation Act. 1908) (July, 1956).
2-14 M of LI & CA[ND[83

Prir_1c'_iples for
revision.

Need for
having ano-
ther look.

'be given its

89TH REPORT or 1. AW comm. or INDIA ON THF. Ll?\llTATlO.'~l ACT, 1963

(C/mp/er] «Inlr0a'u<'l0r_1')

any property, whether movable or immovable. Secondly. while the Act of 1871
provided for the acquisition of easements absolutely by open and uninterrupted
enjoyment for twenty years. the Act of l877 extended this provision to what
are known as proﬁts a prcndrc.

The Limitation Act i908 (9 of 1908) made certain changes in matters of
detail, without radically altering the substance or the arrangement of the pro-
visions. In the meantime, the lndian Easements Act dealing with easements,
had been passed. which too provided for the acquisition and extinction of ease-
ments by prescription. The Limitation Act of 1908 therefore expressly pro-
vided that its provisions concerning easements shall not apply to cases arising
in the territories to which the Indian Easements Act. 1882 may. for the time
being. extend. The Limitation Act of l963 (the present Act) has made a few
changes of substance in the Act---particularly. in certain time limits and also in
regard to the scheme relating to applications for execution. At the same time,
it has not disturbed the basic structure of the Act of l908. As already men-
tioned,' the present Act largely implemented the recommendations made by the
Law Commission in its Report on that Act.

1.3. It would be convenient to mention at this stage some of the general
principles adopted by us in revising the Act. in the ll!'St place. we have
examined the case law on the Act in some detail. addressing ourselves especially
to conflict of decisions on important points. In a law of day-to-day use. this
aspect is of practical importance. Secondly, some of the provisions of the Act
appeared to require review in the light of a few juristic trends that have emerged
in recent times. By way of example. we may mention the more liberal attitude
of the law in regard to mistake of law as a basis for granting relief against strict
application of rules of limitation. Thirdly, certain commercial and other trans-
actions have gained popularity in recent times and it is proper that the law
should take note of them. We may cite. by way of example. the practice of
placing money in ﬁxed deposits. For the recovery of money so placed. the Act
has no speciﬁc article at present----- a matter certainlv requiring attention.
Fourthly. apart from conflict of views. judicial decisions have brought out a few
lacunae in the Act--~-for example. the diﬂicultv caused by the draftsmanship of
section 29 in regard to stilts for dower. Fifthly. some of the provisions of the
Act are unduly I'L'Sil'lCl.C\'l in their scope. and it has been considered worth
examination whether the nrint-iplc on which they are based should not
full scope by making the provision more ample than
at present. Section 1] furnishes one example. That section (dealing with cer-
tain aspects of conﬁict of laws) is unnecessarily restricted to certain kinds
of causes of action. These have been some of the important aspects that have
been kept in view in reviewing the Act.

1.4. A query may perhaps he raised as to the need for liaving another look
at the Act within twenty years or so_ It is enough to answer it by quoting
what the Chairman of the law Commission for Fnglmnl and Wales said about
the process of law reform:"

"In every societv, law reform in changing times is a process which is
as endlessly necessary as cleaning the streets. maintaining buildings.
pruning trees and disposing of refuse. It has to he done: either systemati-
cally and continuously. or drastically from time to time."

'Para l.l, supra.
2M1'. Iutice Kerr, "Law Reform in Canging Times", 06 Law Quarterly Review 515.

89m Rt.-'PORT or 1..--m cumin. or INDIA on 'lllL LlMl'l';\T'0N ACT, 1963

;\' C/zap tgr 17------I11troduczoryj

1.5. The policies underlying the law old limitation are ultimately based on Poljcics

. . ' . r V» , = « . .. , -3 dcrlying
justice and convenience. mi mdmdual snoutd not hwc under the threat of. aﬁilc law of
possible action for an indeterminate period, since it would be unjust. Again, nm1¢au.,m_
the defendant should be suwerl the task of defending stale causes ot EICIIOI1,' as

it is often inconvenient. l'-urtlter, vigilance in the pursuit of rightful claims

should be encouraged so that these are the ethical or rational justifications for

the law of limitation. All that has been said on the subject can be sum-

marised by stating that the law of Limitation rests upon three main f0LlI1ClEltl0l]S--

justice, convenience and the need to encourage diligence.

1.6. However, it is obvious that while these considerations are laudable in Hardship
themselves, their translation into practical legislation is not a matter of ease. An Occasiionatty
over-einphasis on these propositions at the risk of disregarding some other muse'
weighty counter-balancing consideration might cause serious injustice. The law
of limitation attracts adverse comments when a person is thrown out of court
on the plea of limit;=.tioit lot' no possible fault of his. /\ recent English case'
on the point is of one Mr. trite He had sullcred SCl'itILl\ personal injuries in a
car accident. but, on account ol' wmiig ll!/I'/('(' gi'r_.:Ii by Iris .t'olz'c'il0rs, the two
insurance companies with xthoni the concerned car owners had insured them-
selves got away on the ice/uiiml [}[('tt of /imitutiwz. An academic writeri com-
pares that luckless passenger to the plight of Winnie the Pooh? "Pathetic", he
said, "that's what it is, Pathetic". Reference is rnadc by the same writer in
this context.

Thus, the law oi' limitation has to strike a balance between the policy
considerations incntioncd abote ten the one hand) and tile risk of injustice (on
the other hand).

1.7. So much as tegttntls llh' iiiipoitaiire of having a law of limitation that Scheme of

is reasonably fair in its substance and reasonably certain in its form. The the Actzi
scheme of the present Act JHEI} be brieﬂy described at this stage. The Act (like The "along"
its predecessors} is dixided into sections and articles. the operative provisions
and the principles as to computation of the period of limitation, as also provi-
sions in the nature of prescription, are to be found in the sections of the Act.
The periods of llmlt2tf_h_tt1 applicable to various classes of suits. appeals and
applications. and the time lroin which the period begins to run in each case,
are matters dealt with in a tabular form in the articles placed in the Schedule to
the Act.

1.8. One of the principal objects of the law of limitation is the discourage-
ment of stale demands'. particularly tor the reason that where the raising of
controversy is unduly delayed. evidence tends to disappear and opportunity may
arise for the filling of claims which are either dishonest or mistaken in point.
of facts. Since this dil'ncult_\' would not survive where the party against whom
the claim is made has hintselt furnished reliable evidence of the debt or'-liability,
the Act in sections I8 to 20. provides for counting a fresh starting point of
limitation where the person sought to be charged in respect of any property or
right has made a written acknowlcclgcment of liability. as also where payment
on account of a debt or an interest on a legacy has been made by such person
(coupled with a written record), Of course, such acknowledgement or payment
must have been niatle before the claim has already become tinte--barrcd.

'LI/J V. Pea.s-Icy, twso) I All 13.12. 623.

7BereIt Morgan. "Fault in the Syxzem" (30 Oct. 1980) 131) New L.J. |t)t)2.

'-'A Milner, Winnie The Pooh. (ihztpter 6.
'cf. para 1.5 supra.

89TH REPORT OF LAW COMMN. or INDIA ON THE i.1M1rArioi~i ACT, 1963

(Chapter 1~Inlroduct0ry)
1.9. The case of substitution or addition of parties during the course of
litigation is dealt with in section 21.

Continuing breaches of contracts and torts are taken care of by section 22,
while. in respect of suits for compensation for acts which are not actionable
without special damage, section 23 makes a suitable provision. Section 24
provides that for the purposes of the Act all instruments shall be deemed to be
made with reference to the Gregorian calendar.

1.10. Next follow provisions in the nature of prescription concerned with
the acquisition of easements by prescription (sections 25 and 26) and the
extinguishment of right to property at the determination of the period ol' limi-
tation for instituting a suit for possession of any property (section 27). The
body of the Act ends with miscellaneous provisions concerned with the amend-
ment of certain other Acts, savings, transitional provisions and repeal (sections

28 to 32).

Coming to the body ol' the Act, sections I and 2 deal with preliminary
matters, including deﬁnitions. The most important provisions of the Act
relating to the bar of limitation occurs immediately thereafter, in section 3.
Dismissal of a suit, appeal or application tiled after the prescribed period is
mandatory. Section 4 deals with the situation of expiry of the prescribed
period at a time when the court is closed. Under section 5, in the ease of
appeals and certain applications, the court has power, for sutlicicnt cause, to
extend the prescribed period. Here one has an example ol'-legislative anxiety
to maintain a balance between ensuring vigilance and avoiding hardship. As
regards persons under legal disability, appropriate provisions are tnade in sec-
tions () to 8. Subject to these special provisions, the general principle laid
down in section 9 is that once time has begun to run, no subsequent disability
or inability to institute a suit or make an application stops it. By way of an
exceptional provision, section 10 provides that certain suits against trustees and
their representatives are not barred by "any length of time". The section takes
within its fold Hindu, Muslim and Buddhist religions and charitable endow-
ments as well~a provision which constitutes a tirst rate example of the legis-
lature stepping in to correct an anomaly brought to light by judicial decisions.
Section 11 deals with a topic belonging to contlict of laws, namely, suits on
Contracts entered into outside the territories to which the Act extends. Such
suits are governed by the Indian law of limitation, whatever be the locus of

the cause of action.

Elaborate provisions as to the computationof the period of limitation next
follow. Thus, time taken in certain preliminaries that are requisite for pur-
suing legal proceedings of special categories (appeals and certain applications)
is the subject matter of section l2,--~provision based on necessity. That sec-
tion also enacts the general rule that the day from which the period of limita-
tion for any suit, appeal or application is to be reckoned must be excluded in
Computing the period of limitation. Sections I3 and 14 provide for the ex-
clusion of time actually taken in certain infruetuous legal proceedings -----in regard
to the special case of an application for permission to sue as a pauper (if
ultimately the application is not granted), and in regard to the more general
case of legal proceedings which become infruetuous because the court, from
defect of jurisdiction or other cause of like nature, is unable to entertain them.
Certain cases where the institution of legal proceedings has to be postponed by
reasons of necessity, judicial orders (such as, injunctions or stay orders) or
statutory provisions as to the giving of a notice as a condition precedent to

89rH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT» 1903

(Chapter /---[mii'0dirctory)

the institution of a legal proceeding, and the like, are dealt with in section 15.
The absence of the defendant from India is, in computing the period of limi-
tation for a suit, excluded under section l5(5).

A cause of action arising on death or a cause of action whose accrual does
not take place until after the death of the person concerned needs special treat-
ment, and section 16 attends to such causes of action in the context of limita-

tion.

While these provisions of the Act are mostly concerned with diﬁicultics
arising from certain circumstances which are not dependent on the conduct of
an individual, justice requires that provision should also be made to relax the
law of limitation in case of fraud or mistakc~thesc two being situations in
which a person is prevented from instituting legal proceedingswithin time,
either because of the misconduct of the opposite party or because of his own
having laboured under a misconception. These two situations are taken care
of by section 17.

1.11. The Schedule to the Act contains I37 articles, laying down periods Scheme Of
of limitation for various kinds of Proceedings. 01' these, articles 1 to 113 relate the Act;
to suits; articles M4 to 117 relate to appeals and articles 118 to 137 relate to §:,'°t,'?e"'C1°s
applications. The general scheme adopted in the Schedule is that, in eachSCh€dl1lc«
category, spccilic types of proceedings are covered by specilic articles dealing
with a particular cause of action or head of relief. This is followed in each
category by a rcsiduary article, which is intended to take care of a suit, an
appeal or an application {as the case may be), not covered by a spccilic article.

The perioxls of limitation prescribed for various categories of suits, appeals and
applications vary.

1.12. Coming more particularly to suits, it may be stated that the periods
prescribed by the relevant articles vary from one year to thirty years; for all
suits instituted by the Government, the uniform period (under article 112) is
thirty years, except a suit before the Supreme Court in the exercise of its origi-
nal jurisdiction. In general, it can be stated that most suits for money or
monetary claims (excepting claims in tort) enjoy a period of three years, and
most suits relating to tort are governed by periods of one year, two years or
three years. Suits for the recovery of immovable property (and on allied
causes of action) enjoy a period of twelve years, with certain exceptions; the
most important exception in this context is the period of thirty years, allowed
for a suit for redemption or foreclosure of a mortgage under articles 6l(a) and
63(a), respectively. The residuary article for suits (article ll3) allows a period
of three years for suits not otherwise speciﬁcally provided for.

1.13. The starting point of limitation (subject to certain exceptions) as
regards suits, is in general, the date of accrual of the cause of action. How-
ever, this concept has not been expressed in any general terms«--such as "accrual
of the cause of action": rather. it has been translated into a date linked up
with some specific and concrete act or event which is appropriate for the
particular type of cause of action to which the suit relates. In some exceptio-
nal cases, the date selected as the starting point is not one corresponding to the
accrual of the cause of action. but some other date which is more appropriate
for the particular type of claim. For example, in a suit relating to accounts.
being a claim for the balance due on what is described as a "mutual, open and
current account". where there have been reciprocal demands between the parties.
the starting point under article l is the close of the year when the last item ad-

Section 1-
Short title,
extent and

commencement.

Section 2 ~--
Deﬁnitions.

89TH Rl-'l'(>l{T t)l' LAW LUMMN. ()l5 INDIA ON THE LlMII'AT'lQlj ACT,

(Chapter /~--I/1/i'u(2'i(t'/013', C/rapier 2---Seclfolzs /and 2; Pre//'n11'n(1ry)

mitted or proved is entered in the account. Similarly, for a suit for the wages
of a seaman. the starting point under article () is the end of the voyage during
which the wages are earned. Again, under articles 73 and 74, which are con-
cerned with compensation [or false imprisonment and compensation for mali-
cious prosccution respectively. the starting point is termination of the false im-

9 prisonment or of the malicious prosecution, as the case may be. Then. under

article 81, a suit by executors etc. under the Legal Representatives Suits Act,
1855 can be tiled within one year of the date of the death of the person wronged.
Finally, in several cases. the knowledge of the plznntill' as to the accrual of the
cause of action is material for determining the starting point. Examples of
such an approach are furnished by articles 4, 56, 57, 59, bltb), 68, 71. 84, 92 to
95 and 102.

1.l4. In regard to appeals. the period of limitation xarious from 30 days
to 90 days, depending principally on the nature of the order appealed from and
the forum to which the appeal is to be taken. There is no residuary article
for appeals.

1.15. As regards applicatioiis. the piescribcd periods vary from ll) days
(article II8) to l2 years (article I36. which is the general article for an applica-
tion for the execution of any decree or order of any civil court). The residuary
article for applications (article 137) allows a period of 3 years.

CH7\l"lER 2
5l".Cl'l()NS I \l'\i) 2: l'Rl;'l,l.\llNARY

2.1. Beginning a consitlciation ol the .\ct suztioiiwisc. .\u,l.ioii I deal; with
the short title, extent and commenceincnt of the /\ct. By a notitication of the
Central Government issued under .'€ectioi1 1(3). the Act came into force' on the
1st January, l9(i4. Under Section N2), the Act extends to the whole of lndia
except the State of Jammu and Kashmir. Some uncertainty seems to exist as
to how far the Act has repealed corresponding laws of the previous French and
Portuguese possessions which now form part of the territories of India. The
point will be advcrted to' \\'hile discussing section 20. which seeks to preserve
"special and local" laws.

2.2. Section 2 contains a number of deﬁnitions, being definitions of the
following words and e\pressions:--

(a) "applicant":

(b) "application":

(C), 'bill of exchange":

((1) "bond";

(e) "dcl'cndant":

(F) "eascmcnt":

(g) "foreign country":

(h) "good faith":

(i) "plaintill"':

'Notiﬁcation. No SO. 31lR.dn1ed 29th October, 1963.
'-'Sec discussion on relating to section 29, infra.

SQTEI l{Ll'tiRT fl'.-' t\\v (u\t\lN. or INDH on Title ii\iii1\Tio.N ACT. I963

.Sctti'oii 5,' 'NIL' 31"' Uf

(C}icipIt'r 2-7 Stwiini I and 3; l'i'i'i.imi'iiitr_\'. ('lit1I"t"' -'i _ V _
I ])t')'.'Uu' wlmi (our! I3

Iimilr-I5:-it ( /iu!>J~r J 91% II'«'m' 41 E.\'JN'/L" "i i""""""""""
r'Im'r'tI')

(j) "period of liinitatioit"

and "prcsci'ibcd"':
(k) "promissory note":
(l) "suit";
(in) "tort" and
(ii) "trustee".

We have no changes to rccomnieiid in the deﬁnitions. since they have not
created any serious contioversies that ma-y necessitate a change in the law.
Provisions by way of interpretation or explanation also occur in a few substan-
tive provisions of the Act. Their relevance is primarily confined to those parti-
cular provisions. and can be best dealt with while considering those provisions.

CHAPTER 3
SECTION 3: THE BAR OF l.I.\HTATI()N

3.1. The operative provisions of the Limitation Act may be said to begin ,SI°h"c"'{)';r3;f
with Section 3. Sub-Section (l) of this section which constitutes the most Hmitatton.
important operative provision.~~enacts that. subjcct to the provisions contained
in sections 4 to 24. every suit instituted. appeal preferred. and application made
after the prescribed period shall be dismissed. atthoiigh limitation has not been
set tip as a defence. Thus. in the tirst place. the dismissal of a time-barred
proceeding is made mandatory by this provisions: .\'c'C0l']tli/\'_ this is so even if
the defendant does not up liiiiiiation as a defence.

Sub-section (2) of section 3 explains. in some dctail. in three clausesltal.
(b) and (cl.a~how the proposition laid down in sub--scction (ll is to be applied.
clause (a) of the sub-section explains when a suit' is "instittitcd" generally. as
well as in the case of a claim by a pauper or a claim against a company which
is being wound up by the Court. Clause (bl deals with set oil" and counter-
claims. while clause (cl deals with an zipplicatioii by notice of motion in 21 High
Court.

3.2. While no cliaii<__res ol' siihstiincc :trc rccoiniiiendctl in sectioii 3. we have Recmnmendution
one recommendation to make for a verbal change in section 3(2) (a) (it). in S:c?i';:§"§1(/2)
which the expression "a pauper" /occurring at two placcsl needs to he replaced ta! tn}.
by the expression "an iiidigeiit person". in view of the changed phraseology
adopted in the Code of ('iiil i)!'tlCU(ill['L'. l')(l.'< Zl\ .'miende<l in 1076. We re-

commend accordingly.
CHAPTER 4

SECTION 4 : FXPIRY OF PRESCRIBED PERIOD
VVHEN COURT IS ('.LOSF.D

Bar of

4.1. Section 4 provides that where the prescribed period for any suit, . .
- limitation.

appeal or application expires on a day when the Court is closed, the suit etc.
may be instituted on the day when the Court re-opens. The Explanation to
the section provides that a Court is deemed to be closed on any day if. during
any part of its normal working hours. it remains closed on that day.

Principle.

Changes
needed in
section 4
in View of
section 14.

Section 5

Extension of
section 5 to
suits not
recommended.

39TH RFPORT OF LAW CIWIMN. or INDIA oN TIIE LIMITATION ACT. 1963

(Ci/Ia_,uI¢'r 4 .Sr'i'Ii'mii -.1: E.\'/iii)' of [)l'L'.S('I'i[)('(i [u'i'i'ml W/It'll ('curl is closcrl.
('/rapier 5/5('('Ii'<)ii 5: EA'!/('II.S'I'(JII of 1/10 prescribcrl p('I'iUd for Sllfﬂ('i('IIf cause)

4.2. Obviously. section 4 is based on the principle that the law does not
compel a man to do the impossible----Ie.r mm mgr'! ml iiiipossiliiliawand that
the act of court should harm no one}

4.3. While the section. standing by itself. has created no problems. some
difficulties have arisen in connection with the combined operation of sections 4
and 14. We shall advert to this point at the appropriate place?'

CHAPTER 5

SECTION 5: EXTENSION OF THE PRESCRIBED PERIOD FOR
SUFFICIENT CAUSE

5.]. Section 5 empowers the court, for "sufﬁcient cause", to entertain an
appeal or application (except an application for execution) ﬁled after expiry of
the prescribed period. A number of points require to be considered with
reference to this section. The section does not apply to suits.

I. Suits

5.2. Section 5. as stated above. does not apply to suits. We have consi-
dered the question whether the section should be amended so as to include
within its ambit suits ﬁled after the prescribed period. Delving into the old
records relating to the drafting of the Indian Limitation Bill. 1908. we dis-
covered that this question was considered at that distance of time also. When
the draft of the Indian Limitation Bill 1908 was circulated for comments. Dr.
Hari Singh Gaur commented' as under:

"I am not sure if a suit may not be also included in the clause: if
the intending plaintifl is wrongfully conﬁned b_v the defendant. why he
should lose his suit'? Section 18 'fraud' does not cover such a case."

However. the Divisional Judge, Nagpur.' was apprehensive that if the ambit
of the clause was enlarged. it would lead to unsavoury practices: false grounds
were often invented when the litigant found that he was out of time. In most
cases they were. accordingly to him. based on purely personal incidents or
conditions which his adversary was not e\pected to refute. '

5.3. Though there is some merit in Dr. Hari Singh Gour's suggestion. we

-think that enlarging the scope of section 5 to cover suits would do more harm

than good to the administration of justice. The rapport between the lawyer
and his rural client is generally so well established that a visit to the family
lawyer on the weekly market day is always on the agenda of a villager. Such
being the style of functioning of village folks. it is improbable that the munshi
to the lawyer would allow his client's case to go by default by asking him
to wait till the last day of limitation. If. as contemplated by Dr. Hari Singh
Gour. a plaintiff may be prevented from reaching his lawyers on the last day
of limitation by scheming defenda'nts. he could as well as prevented by other

'CF. Aiiyadi V. HI'I'(I}II1ﬂ.\'_\'(l. A.I.R. l972 SC'. 239.

'-'See discussion relating to section 14. iiifm.

3Dr. Hari Singh Gour: Annexure to the letter from F.S.A. Sloica, Esq. I.C.S.'. Chief
Secretary to the Chief Commissioner. Central Provinces. to the Secretary to the Govt. of
India. Legislative Department. dated 19th December. 1907. National Archives File, page 3.

'Rai Bahadur Sharat Chandra Sanyal, National Archieves File

89TH REPORT or 1 \v.' co\t.\t.\'. o.\' Lt.\nT.\'I.'o7\' ACT. i963
(Chapter 5----Sc't'1ion J7 Exit'/zlio/I of [/16 I'r('.s('I'ibed Pt'l'i<)(/ for S11//icieizt (rmse)

causes like breakdown of the bus service. lloods. illness. etc the authorship of
which cannot be imputed to the defendants.

In view of the above. we do not recommend e\temion of the principle of
section 5 to suits.

ll. Applications

5.4. Regarding the applicability of section 5 to applications. the law as -'\PDliC3li0"5--
revised in 1963 is wide enough. The Law Commission had. in its report' on
the Act of 1908. recommended that a uniform rule should be adopted. applying
section 5 to all applications. except those under Order 2] of the Code of Civil
Procedure. 1908. This change has been carried out. and no further change
appeared to be needed in this regard. There appea's to be jusitication for
excluding applications under Order 21 (applications for execution) from the
scope of the Section. since the period available is long enough (l2 years)?

Ill. Erroneous legal advice

5.5. In Section 5. the e\'pre.~:s'ion "sullicient cause" for not preferring an Erroneous
appeal or making an application within the prescribed period has been ititer-lfdgﬁlw
preted by the Supreme Court.' to include lawyers' ignorance about the law
regarding calculation of the period of limitation. In that case. the High Court
had refused to condone the delay and to admit the Company's appeal. but the

Supreme Court". reversing the judgment of the High Court. observed as under:

"A Company relies on its Legal Adviser and the Manager's expertise
is in company management. and not in law. There is no particular reason
why. when a company or other person retains a lawyer to advise it or
him on legal affairs. reliance should not be placed on such counsel."

5.6. The principle. is in fact. well established. At the same time. courts :{a€r€:50"ﬂbl¢
have been circumspect in scrutinising the claim of a party that he was misled cxpiacjed
by a wrong legal advice. For example. a plea was made before the Madhya*"" C*"""°l-
Pradesli High Court' by a counsel that he had relied on a Full Bench ruling oi'
that High Court under the old Act. The Court refused to countenance such an
argument. when. in point of time. the new Act had come into force a year
before the event. Similarly. the Delhi High Court" rejected the plea for con-
donation of delay. when it was argued that the appellant acted upon the advice
of an eminent counsel who lnul. in computing limitation. relied on an overruled
judgment of that Court.

5.7. The fact that the appellant was misguided by the wrong advice given
by his legal adviser. has not. alone and by itself. been held to be tantamount to
"sutlicient" cause within the meaning of section 5. The Courts have inquired that
the lawyer who gave the opinion exercised reasonable care. In other words.
the advice should have been the result of a bona ﬁde mistake not attributable to
negligence or want of skill and the view taken by the lawyer was such as would
have been entertained by a competent person exercising reasonable skill". As

lLaw Commission of India. 3rd Report (Limitation Act. 1908"), page 13. para 26.
'-'Article 136.

-'Concord of India ]II.\'Il)'(lI1C(' Co. v. Nfrmala Devi. A.l.R. l'979 S.C. 1666.

4C/It/ni/al V. State of MP, A.I.R. i957 Al'. I27. 128.

7'Banwm'ilal v. Union of India, A.l.R. i973 Delhi 24.

"B/Ialli B/1. Montiul V . K/t(1_c('/1:1I't/, A.l.R.. I968 Cal. 69: R. TradiI1.L' CO. V. M. TI'0d/11.9

Agmzc)', A.l.R. 1971 Cal. 313.

3~14 M of LJ&CA/ND/83

Questions
connected
with the
requirement
of care.

Ignorance of
C ounscl.

89TH mzvom' or L \w c<m\m. rm L1':\I1T'\'1 rm; ACT. 1963
(CfI€7pI('r 5'--~$m-rim: 5 ---- Extwrzion of the Pr(as'm'iIw(l Period for .S'1tIltriP1tt calls?)

the Privy Council observed'. "there is certainly no general doctrine whi.-h saves
parties from the results of wrong advice". The Supreme Court'. while inter-
preting the words "sufficient cause" in section 5. has observed that the words
"should receive a liberal construction so as to advance substantial justice when
no negligence or inaction or want of bond fidr' is imputable to a party." Tn an
English case". Brett. L.J. observed:

"In cases where a suitor has suffered from the negligence or ignorance
or gross want of legal skill of his Legal Adviser. he has his remedy against
that Legal Adviser. and meantime the suitor must suﬁer. But where there
has been a bona ﬁde mistake, not through misconduct not through negli-
gence nor through want of a reasonable skill but such as a skilled person
might make. 1 very much dislike the idea that the rights of the client should
be thereby forfeited".

5.8. If that requirement has to be read into section 5 some questions arise.
Though the expression "good faith" has been defined in section 2(h). that ex-
pression does not ﬁnd a place in Section 5. Taking note of this. Abdur Rahman
I. in a Lahore case' observed:

"It must be. however. conceded that in ﬁnding a 'sufficient cause' under
section 5 of the Act. a 'good faith' is more in general sense of that word
as grammatically understood rather than in the sense in which it has been
deﬁned in section. 3(7). limitation Act".

"It may not be irrelevant to recall the deﬁnition of 'good faith' in section
3(2). General Clauses Act in that connection. An act according to that
deﬁnition. may be done honestly and in perfect good faith although it may
have been done negligently. Let me. however. not he understood to say
that an act. however negligent whether grossly or otherwise -should
always be regarded as falling within the term 'sufficient cause' employed in
section 5. Limitation Act if it is found to have been done honestly. lt would
depend upon the circumstances of each case although 1 am free to confess
that it would go a long way to help a person who asks for indulgence under
section 5 if he can satisfy the Court that he had been acting honestly."

5.9. Though the Sllprcme Court case' concerned itself with the counsels
ignorance about the law regarding computation of period of limitation. some
observations in an earlier case of the Supreme Court" seem to suggest that the
Court might be prepared to condone negligence on the part of the ('ounsel in
special circumstances.

"37. Even otherwise. in the entire circumstances of the case disclosing
sheer indifference. perhaps ignorance. on the part of the advocate. Shri
Bharaitinder Singh and no laches. whatever on the part of the appellant.
we would have been inclined to condone the [delay of 12 days under section

5 of the Limitation Act".

1Kunwar Ru_iena'ru Brﬂiadur Singlt V, Ra_ic.r}zwm' Bali. A.l.R.
3Starc of West Bemzal V. H(m'r-(Ila Mm1ic'ipnliI'\'. .'\.l.R. 197'.'
-'*'Higlzr(=/r v. Trclzcrnc. (1878) 3') Law Times 411.

'Arum V. Knram Din, A.l.R. 1947 Lab. 77.

5Concord of India Insurance Co. v. Nirmala Dari. AIR. 1979 SC. 1666-

"Chirmbahaiv. R.C. Bah', AIR. 1977 SC 2319.

1937 P.C. 276.
SC. 74'). 755.

89TH REPORT or LAW comm. ON L11\11'1'AT1()1\' ACT. 1963
(Chapter 5--Sec1ion 5~----E.\'tcnIio/1 of the I't'cst't'ilm1 1'crimi for Sit]/icient cause)

5.10. The scope of the expression "suﬂicient cause" in relation to lapse
on the part of a counsel came up for consideration before the Supreme Court1
again recently, A Senior Sub-Judge of Narnaul had been authorised by the
High Court to hear appeals, but as the counsel was' ignorant of this fact,
he had ﬁled the appeal in the court of the Additional District Judge in 1960.
ln 1961, when the appeal came up for hearing, the objection regarding want of
jurisdiction was sustained and the memorandum of appeal was returned to the
appellants. The appellants liled the memorandum before the Senior Sub-Judge,
the proper appellate Court and prayed for condonation of the delay of 185
days, being the period of pendency of the appeal in the court of the Additional
District Judge. Though the Senior Sub-Judge condoned the delay, the High
Court disagreed. The Supreme Court found that the High Court was in error
in refusing to condone the delay, and remanded the appeal to the High Court.

5.11. Apart from the aspect of etfect of negligence. there is another aspect Limits of
to be considered. The 'suﬂicicnt cause' must have arisen before expiry of the?,lT°f,f°if'!'°*=Pt 01
period of limitation. E23563-l_°nt

A peculiar situation arose in a case tfroni Gujarat'. In which an appeal was
preferred under the Supreme Court (linlargement of Criminal Jurisdiction) Act,
1970 against the judgment and order of the High Court of Gujarat, setting aside
the acquittal of the appellant and convicting and sentencing him for serious
offences under section 302, read with section 34. Indian Penal Code and under
section 326, read with section 34 of that Code. The only fact of relevance
to the present inquiry is that the appeal to the High Court was ﬁled three months
after the period of limitation had expired and this delay was condoned by the
High Court. The Supreme Court, however, did not countenance this action
of the High Court ol condoning the delay of three months under section 5 of the

Limitation Act and observed:

"It appears that initially the State Government took a decision not to ﬁle
appeal and it allowed the period of limitation to liilpsc'. Subsequently, on
certain observations made by the High Court while considering a revision
petition by Bhulabhai that it was a lit case where the State Government
should ﬁle an appeal and on notice being issued by the High Court to the
State Government in the matter. the appeal was tiled. It was /ilcd three
months after liIIIlI(lli()Il hail t',\'[)iI'('(l. A faint attempt was maa'e 10 show
that when the initial dcoisimz was taken not to file an appeal all the papers
had not been considcrul by the department ('()IIC('I'IlL'(/, but we are not im-
pressed by that allegatimz. The truth appears to 13 that the appeal was not
ﬁled at ﬁrst because the State Government saw no case on the merits for
an appeal, and it was ﬁled only because the High Court had observed----
and that was long after limitation had expired that the case was ﬁt for
appeal by the State Government. Now. it is true that a party is entitled to
wait until the last day of limitation for ﬁling an appeal. But when it allows
limitation to expire and pleads sutﬁcient cause for not ﬁling the appeal ear-
lier, the sufficient cause must establish that because of some event or cir-
cumstances arising before limitation expired it was not possible to ﬁle the
appeal within time. No event or circumstance arising after the expiry of
limitation can constitute such sullicient cause. There may be events or cir-
cumstances subsequent to the expiry of limitation which may further delay
the ﬁling of the appeal. But. that the limitation has been allowed to expire

'Badlu V. Shiv Clmrutt. (1930) 4 S.('.(i. 401-
3/ljit sing]: Thu/cur .S'in_e/I v. State of (lujurnt. /\.1.R'

495, 497,

1081 S.C. 733, (1981) 1. S.C.C,

Need for
codiﬁcation
of the law
on the
subject of
legal
advice.

M nrricd
WOIHEH.

No change
needed as
to married
women.

89TH 'REPORT or Law CONIMN. ON LlI\llTATl()N ACT. 1963
(Chapter 5~.S'ct'Iimz 5 E.\'lL'/IIIUII of the l'rc.s'tri/m/ l't'rim1 for Sllf/I.('l'L'Ill cause)

without the appeal being ﬁled must be traced to a cause arising within
the period of limitation. In the present case. there was no such cause, and
the High Court erred in condoning the delay."

The Supreme Court. has in the observations quoted above. underscored an
important aspect of section 5. by stating that the "suﬂieient cause" must be
traced to a cause arising within the period of limitation.

5.12. We have, on an examination oi' all aspects ol the matter, come to the
conclusion that the position on the subject of legal advice given erroneously
needs to be codiﬁed. However. it would make for a better appreciation ol evidence
and merits of a claim under this section it' the court has before it, in black
and white, the advice given by counsel.

While stressing the importance of a written legal advice, we are not oblivious
of the fact that the regulation of the legal profession has been entrusted by the
Advocates Act, 1961, to the Bar Council of India. Hence. we recommend' that
the Central Government should request the Bar ('ouncil of India to frame rules
making it obligatory upon an advocate to tender a written legal advice in
matters concerning limitation. We hope that the Bar Council of India would
appreciate the necessity of such a rule when the fate of an otherwise good
claim hangs on the technical plea of limitation.

We are recommending a suitable Iixplanation to be inserted below section 5
on the subject of erroneous legal advice'. The draft that we propose will show,
in a concrete form. the salient features.

IV. Peculiar disabilities of married women

5.l3. We now turn to a slightly dillcrcnt topic namely. the position of
married women. Section XII of Limitation Act No. I4 of 185') (legal tlisability)
provided as under : --

"XII. The following persons shall be deemed to be under legal dis-
ability within the meaning of the last preceding section married women in
cases to be decided by English law. minors. idiots and lunatics."

L' However. in the subsequent statutes of 1871 and I877. the class ol "married
women" was removed from the list of persons under legal disability. In England.
the Married Women's Property Act abolished the common law rule and made
married women's wages and earnings her separate property and gave her a
power to recover them in her own name.

As far as Hindu or Muslim women in India were concerned. they never
suﬁered from the disability ol' prohibition lrom acquiring _propcrt_v*, For others
appropriate provision has been enacted.

5.14. No doubt. there are certain procedural diﬂiculties of a married woman
in seeking legal redress today. The prevalence of the dowrv svstem and certain
other anomalies have brought to surface some ol the lrantlicaps of the married
women. While we fully appreciate the difﬁeulties faced by married women
(especially from the rural parts of India). in obtaining legal advice. we have

'For implementation by the ('entral Government.
2See para 5.l4. infra.

3See Law Commission of India, 66th Report (Married Womcn's Property Act I874)

89lI*I Rl;l'()R'l 01' Li\\\' C().\l.\l.'-V. (Jl\ Lli\lll'All(;;\ i\D'l.

(C/zaptcr 5~Scclion 5 --L'.\'m1Iio/1 of my 1"I't'.s't'I'i/)('(/ Period for Sa//Icicnz cause)
(C/l(l[)l¢')' 6, .S'cc11'o/z 6: Legal l)isa/)1"/ily)

come to the conclusions that amending either section 5 or section (> and creating
a separate category of persons under disability would be carrying the statute
too far, for the simple reason that (unlike minority or lunacy). the disability of
a married woman would not come to an end until the demise of her husband
or a divorce. The result would be an excessive prolongation of the period of
limitation otherwise, applicable. This might result in defeating some of the
basic features underlying the law of limitation. Rather than classifying them as
persons under disability, education about rights would be a better solution.
Consequently, no amendment of section 5 or section 6 is suggested to cover
tl1is particular problem.

V. Reconinicndatioii

5.15. In the light of the above discussion, we recommend that section 5
should be revised as under:--

Revised section 5

"5. Any appeal or any application. other than an application under any
of the provisions of Order XXI of the first Schedule to the Code of Civil Pro-
cedure, 1908, may be admitted after the prescribed period. if the appellant
or the applicant satisfies the court that he had sufficient cause for not preferring
the appeal or making the application within such period.

Explanation 1.~Thc fact that the appellant or the applicant was misled by
any order, practice or judgment of the High Court in ascertaining or computing
the prescribed period may be sullicient cause within the meaning of this section.

Explanation II.---William prcjm/ire lo I/It' gt'Ii('I'l(fil)' of I/IL' proiisions of
this s('cIion, the fact that the appellant or 1/10 app/ica//1 was I)Ii.s'/t'r/ by any erro-

Izcons legal advice given by a legal prattilio/1t'r is su_/]itit'nr cause wit/Ii/1 .'/I(.' IH('tlIl-
ing of this section, provider]:
(a) the advice was song/It and girc/1 /.u'forc I/It' c.\p1'ry of the prc'scri[)e¢l

period, whether for 1/10 purpose o} [/10 parzirular appeal 4/)' application
or otherwise, and

(b) the advice was given in good fair}: and in writing."
CHAPTER 6
SECTION 6 : LEGAL DISABILITY

6.1. Where a person entitled to institute proceedings is under a legal

R eeommendatiou
J.

as to .~L'(ll(iI1

(llS- Section 0--

ability, some concession is obviously required in respect of the law of limitation Legal

since it is probable that the person looking after the aliairs of one under dis-
ability may not take that much interest in his affairs as is required for the insti-
tution of legal proceedings for the enforcement of a right vested in the person
under disability. To provide for such a situation. section 6. in ﬁve sub-sections,
enacts elaborate provisions concerning minors. insane persons and idiots. The
proceedings to which the section applies are suits and applications for the exe-
cution of a decree. Broadly speaking. under sub-section (1) (which is the ope-
rative provision), if the person entitled to institute a suit or make an application
for adjudication of a decree is. at the time from which tl1e prescribed period is
to be reckoned. under disability. he can institute the suit or make an application
within the same period after the disability ceases. "as would otherwise have

_ ' disability.

No change
needed.

Section 7-----
Disability of
one oi' several
persons jointly
entitled.

'Meaning of
the c.\p1e~.\iou
"time will
not run".

89'rn l{El'()l{l oi LAW (,'-o.\i.\i.\; UN Lli\ll[A'l'l()N ACT, 1963

(Chapter 6--.S'ct-(ion o------Lugul Disu[)i/iI_t',' C/iupzcr 7~~.Secti0n 7--Disability of
one of several pemrolzs')

been allowed from the time specified therefor in the third column of the Sche-
dule". The other sub-sections of the section deal with certain matters of detail,
such as disabilities of more than one kind or successive disabilities, disability
followed by death, the position regarding legal representatives, and so on. The
Explanation to the section rnal~;es it clear that "minor" includes a child in the
womb.

6.2. The extensive casczlaw on the section, on a perusal, does not bring to
light any problems that need solution by an amendment of the section. We do
not, therefore, recomincnd any change in the section.

CHAPTER 7
SECTION 7 : DIS/\BII.I'I'Y Oi" ONE ()1? SLVERAL PERSONS

7.1. Continuing the subject ol disability, and dealing with a special situa-
tion in that regard, section 7 provides that where one of several persons jointly
entitled to institute a suit or make an application for the execution of a decree
is under a disability and a discharge can be gixen without the concurrence of
such person, tl1ci1 time wiil run against 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 others or until the
disability has ceased. The first Explanation to the section makes it clear that
the section applies to a discharge from every kind of liability, including a lia-
bility in respect of any iinmovablc property. The second Explanation provides
that the manager of a Hindu undivided family governed by the Mitakshara law
shall be deemed to be capable of giving such a discharge without the con-
currence of the other incinbcrs oi' the family, only if he is in management of
the joint family property.

7.2. The use oi the c'.'~.[_)l».bi,It)ll 'time will not Jun 11] scttion 7 regarding the
disability of one of several persons has gixcn rise to dilhcultics of interpretation
which have come to surlace in a lull Bench decision oi" the Kerala High Court-'.
The appeal in that case pertained to movable properties belonging to one Pon-
nainma, who died some time in 1941, leaving two sons as the sole surviving
members of the joint family. In 1943, when these two sons were minors, their
father and the maternal grand-parents sold the properties, for the recovery of
which the two sons ﬁled a suit in 1954. In the meantime, the original purchaser
had gifted away the properties to his minor children, who were intpleaded
as defendants to the suit in 1955. The lirst plaintill had attained majority in
1951, though the second plaintilf continued to be a minor even in 1955 and
attained majority only in 1958.

The majority of the Bench held that the suit was barred by limitation. As
one of the plaintiffs acquired the capacity to give a discharge without the con-
currence of the others when he became the manager in 1951, the plaintiff could
not get more than three years from 1951 for ﬁling the suit, under section 8
of the Act.

7.3. The dissenting Judge. however. held that time began to run as against
both the plaintiffs (under section 7) in E951. when the first plaintiff became the
manager of the joint family, but this acquisition of majority or managership was

1/\s to married women. we tll\c'l|\\lUIl in Lliapter 5, .wt,nra.
"Pumiammu v. Ptltflrltllltll)/l'(lI1, AIR. 196') Ker. 163 tI'.B.),

ROTH RITPORT or r\\v ('()\l\I.\'. n\ iim'r\'no'--. \('[. I963
(C/I(t_I)I('I' 7- S('<'Iio/1 7 [)isu/)1"/i/.\' of rim' of .\'('l'('I'(I/ /)z'I'.wI1.s')

not the "cessation of disability" within the meaning ol' section 8. The entire
period of 12 years provided by article l42 (of the Act of 1908) was available to
the plaintiffs from the date 'time began to run'. unallected by the three year
limit of section 8. The dissenting Judge conceded that the three-year limit of
section 8 would. at best. be reckoned from 1958 onwartls when the second
plaintiﬁ' became a major. because. by then. both the plaintiI'l's ceased to be under
disability.

7.4. The majority was unhappy about the drafting of section 7 and made the
following observations : --~

"The wording of section 7 creates some diliiculty. because the latter
part of that section says that 'time will not run as against any of them
until one of them becomes capable of giving such a discharge. without the
concurrence of others or until the disability ceased'. which would seem
to imply that the starting point of limitation itself is postponed until after
the capacity so discharge hats been acquired by one of them. or until the
disability has ceased."

However. they got over the difT1culty by putting a harmonious construction
on sections 6 and 7. observing that the latter was really an appendix to the
former and that the avowed purpose of both the sections was to extentl the
p.-riod of limitation.

7.5. The expression "time will not run" also oeeurred earlier in section 8History
of the Act of l87l, which ran as under:

"Disabilitv of one joint creditor . . R. When one of several joint ctedi--
' ' ters or claimants is under any such
disability and when a discharge can
be given without the concurrence
ol' such person. time will not run
against them all: but where no such
discharge cen be given. time will not
run as against any of them until
they all are Free from disability."

Section 8 ofthe Act i877 reads its under:

"Disability of one joint creditor . 9, When one of several joint CTo(ll-
tors or claimants is under any such
(ll\:tl7lllI_\' and when a discharge can
be given without the concurrence
of such person time will run against
them all but where no such dis-
charge can be given. time will not
run againstany of them until one
ol" them becomes capable of giving
such discharge Without the concur-
rence ofthe others."

lllu.yIr(1/ions'

(a) A incurs a debt to a firm of which R. (' and D are partners. B is
insane and C is a minor. D can give a discharge of the debt without the
concurrence of B and C. Time runs against B. C and D.

(b) A incurs a debt to a lirm of which E. F and (i are partners. E and F
are insane. and G is a minor. Time will not run against any of them until
either E or F becomes sane. or G attains majority.

The expression "time has begun to run" occurs also in section 9 of the
present Act which provides that where once time has begun to run. no subsequent
disabilit or inabilit to institute a suit or make an a lication sto s it.

English Act.

Law in

U.S.A.

Need fol'
amendment

Recommendation.

39m RFl'()I{'l' or I \\v ('HT\l\tl\.'. ow ll\lll.r\'II()N .\('l'. 1963

(C/zu/)m' 7 Swift»/1 7 [)isu/viii/y of our of .\c\'eru/ /m'.s(2m')

7.6. lt may be of interest to mention that the difliculties arising out of the
expression 'time will not run'. as respects persons under disability. are not
present in section 22 of the UK. Limitation Act. 1939 (so far as is material)
reads as under:--

"If on the date when any right of action accrued for which a period
of limitation is prescribed. b_v this Act. the person to whom it accrued was
under a disability. the action ma_v be brought at any time before the ex-
piration of six years. or in the case of actions to which the last foregoing
section applies, one year from the date when the person ceased to be under
a disability or died. whichever event ﬁrst occurred. notwithstanding that the
period of limitation has expired."

While commenting on the special provision regarding limitation for infants.
Halsbury has observed' that the provision is a saving clause which does not. of
itself impose a disability and the plaintiﬂ". while under disability. may bring
his action in the same way as if the Act had not been passed. and may also do
so within the statutory period after determination of the disability.

7.7 ln regard to the American Law ('or/)1t.v ./nris Sam/Id:/nz states the
position thus: '

"The saving of the position of limitation by reason of disabilities depends
on the statute as it existed at the time the cause of action accrued. In the
absence of such a saving clause the statute runs against all persons whether
or not they are under disability".

and this statement of the law has been quoted in various cases.
However. it is observed :

"The statute begins to run against persons under disability as soon as the
disability is removed. but. unless a statute prescribed the maximum period
that limitations may be tolled by disabilities. limitations do not begin to
run until the disability is removed".

A reading of the above shows that even in American jurisdictions the ex'-
pression "limitations do not begin to run" has been understood to mean suspen-
sion of the running of the time. even though that running of time started earlier.
even against the person under disability and the expression has not been under-
stood to mean that the starting point of limitation it.sell' is postponed.

7.8. As the expression "time will not run" (in section 7) is giving rise to
dilliculties of interpretation". we are of the view that the language of existing sec-
tion 6(l) can be usefully incorporated in section 7. and section 7 should be
suitably amended on those lines."

7.9. Tn the light of the above \\.'c reeonnncnd that section 7 should be revis-
ed as under:

Revised section 7

"7. Where one of several persons jointly entitled to institute a suit or
make an application for the execution of a decree is under any such disabilitv
as is referred to in .V('t'fi()lI 6. then --

'Halsbury (4th Ed). Vol. 28. page 3.\'R_ para 868. See also Vol. 24. para R951 or .v('(].
3Paragraph 7.2 to 7.4 supra.
3For the draft see paragrapli 7.') infra.

S9'rH REPORT or LAW i'.(iM1\.lN. or INDIA on THE LIMITATION Act, 1963

(Chapter 7----.$'<'crtiotz 7»----Disabilz'/y of one of several persons. Chapter 8--Section
8----~Special Exceptions to the Provisions Concerning Disability. Chapter 9-
S€CTl0I'l= 9--('ontinI.Ious' Running of.Time.)

(a) if a discharge can be given without the concurrence of such person,

the provisions of section 6 shall not apply in favour of any of those
persons:

(b) if no such discharge can be given, the provisions of section 6 shall
apply in favour of all of them, until one of them becomes capable of
giving such discharge without the concurrence of the others or until
the disability has ceased. (Rest of the section as at present). 9

CHAPTER 8

SECTION 3 : srncnu. EXCEPTIONS TO THE PROVISIONS CONCERN-
' ING DISABILITY

8.1. Section 8 provides that the provisions concerning disability (sections Gspecm

and 7) do not apply to suits to enforce rights of pre-emption. nor shall be %'1':°¥':i(;"f;5.3:
deemed to extend, for more than three years from the cessation of the dis-concgrninél S
ability of the death of the person affected thereby, the period of limitation of disability-
any suit or application. The section thus (i) totally excludes from the beneﬁcial

provisions suits to enforce right of pre--emption. and (ii) puts an arithmetical

limit on the extent to which the beneﬁcial provisions relating to disability can

operate. The ﬁrst exclusion is limited to one category of suits, while the

second applies to all suits and applications.

The exclusion of suits for pre-emption appears to be based on a legislative
policy of not giving any relaxation to such suits. presumably in order that tran-
sactions concerning immovable property may not be kept in suspense for a
long time'. This is fact is the rationale underlying the requirement generally
met with in rules of the substantive law concerning pre-emption. to the effect
that the "demand" for pre-emption should be made immediately after the sale.

The second restriction imposed by section 8 obviously shows legislative
anxiety to maintain a balance between the consideration that stale demands should
be discouraged and the counter-balancing consideration that the law of limitation
ought not to operate in such a way as to cause serious hardship in individual
cases.

8.2. The section has not caused any serious" difficulties or controversies. and Nodcclginge
. I'!
does not seem to require change. 56

CHAPTER 9 I
SECTION 9 : CONTINUOUS RUNNING OF TIME

9.]. The general principle that where time has begun once to run, no sub- Section 9----
sequent disability or inability to institute a suit or make an application stops it.rCu':$§:;'°:;
is incorporated in section 9. There is a proviso to the section. very limited in its time.
operation. to. the effect that where letters of administration to the estate of a
creditor have been granted to his debtor. the running of the period of limitation
for a suit to recover the debt is suspended while the administration continues.

The proviso becomes necessary since the same person cannot be both the plain-

tiff and the defendant in the same suit.

' 9.2. The section does not seem to need any change. :6: d'£1a"3°

'cf. section 16( 3).
4----l4 Mof LJ&CA]ND!83

Section l0---
Suits against
trustees and

their representi-

tives.

History of
the main
paragraph.

History

-- of the

Explanation.

89TH REPORT or I.\w co\mN. or INDIA ON THE LIMITATION ACT, 1963

(('/mpI('r In S'w'liu1I I()----~SuiI.v Agrzimt Trllsmar)

CHAPTER 10
SECTION 10 : SUITS AGAINST TRUSTEES

10.1. Section 10 is one of those very rare statutory provisions which grant
a total exemption from limitation for particular suits. In brief, it provides that
Certain 'suits against a person in whom property has become vested in trust
for any speciﬁc purpose are not barred by "any length of time". The same prin-
ciple applies to suits against the legal representatives of the trustee or against
assigns from the trustee. not being: assigns for valuable consideration. The
suits to which the section applies are suits for the purpose of following. in\ the
hands of the trustee. or his legal representatives or assigns. such property or' the
proceeds thereof. or for an account of such property or proceeds. There is_a
Very important Explanation to the section. which has a long historical back-
ground.' it reads as under:

"Explanatirm.~--For the purposes of this section. any property compri-
sed in a Hindu. l\/liuslim or Buddhist religious or charitable endowment shall
be deemed to be property vested in trust for a speciﬁc purpose and the
manager of the property shall be deemed to be the trustee thereof."

10.2. The main paragraph of the section is based on early decision and
certain stattitory provisions." But it is more elaborately worded than the earlier
English provision on the subiect. The current English statutory provision on the
subject is. of course, fairly elaborate?-'

10.3. The Explanation. of course. does not occur in the English statutory
provisions. It was, in fact. not contained even in Indian Law before 1929. It
was inserted as the second paragraph of section 10 of the Act of 1908 by the
Indian Limitation (Amendment) Act. 1929 (1 of l929i to override certain judi-

cial pronouncements. These were decisions of the Privy Council relating tot
Hindu religious endowments as well as Muslim religious endowments. "7 The'

Privy Council held that property dedicated to God (in the Case of Hindu en-
dowments) did not vest in the shebait. who was merely a Manager though. by
custom. he might have certain beneﬁcial interest.

In law. the property vested in the idol or institution. as the case may be.
Similarly. under Muslim law. the moment of waqf was created. the property
vested in God Almighty and the mutawalli or Sajjadenashin had no right in the
property. He was not a 'trustee' in the technical sense.' Accordingly. the beneﬁt
of the provision in section 10 of the Act of 1908 was not available against such
persons. It was to override these pronouncements that the relevant paragraph
was added in section 10 of the Act of l908~---a provision which has been carried
over in the present Act.

'cf. B. K. Mukherjce. "Hindu Law of Religion and Charitable Trusts" (4th Edition 1979)
page 298~--3l3. para 660 to 6.92.

2Cf Girindcr Chundcr v. Mtlclciiitosh, (1879) I.L.R. 4 Cal. 397.

3Section 19. Limitation Act. 1939 (Eng) (See paragraph 10.6 infra).

'CT. ClI1'ntaman v. Khanduran. A.l.R. 1928 Bom. 58.

5Via'_\'a VarL1rlII' v, Balusami Aiyzzr A.I.R. 1922 P.C_ 123. 41 M.I..J. 346.

5/tlidur Rchim V. Nt17'({lIl Dasu A.l.R. I923 P.G. 44: (I..R.\ 50 Cal. 329

7Civil Justice Committee Report. (LR) 50,.Cal_ 329, followed by Council of State Bill
No 8 of 1927.

'See. for other rulings before 1929. B. K. Mukherjea. Hindu Law of Religious and
Charitable Trust & (4th Ed. 1079), pages 301-304, para 6.74 to 6.78.

\»
,-.
Lu

't$9Iit 1u:Po1'<r or L:.\'\' ccr\i.r.:~~.. oi lNl_')lA bl\ 'lHL L'.:\ntx.:.-t 3. JLJ,
(Chapter IU*~'5eL'llt}fl .'U--~5uits Agrtinsz I':'m.'ct"s.)

10.4. We have consi-tiered the qllcsllotl 'nllﬁtllclr the tixplanation to section Need 30

ll) should be extended to Sikh and Jain endowments, and have come to the'-'°"°',5lkh
conclusion that the scope of the lixplanation should be so witletted. The 1I1U(lt'.:§-(dioisrlrtxltttits,
of creation of these endowments in not, substantially diltereiit trom that in» vogue

amongst Hindus and Buddhists. The practice of having at "n1anager" without
formally constituting him 21 'trustee is prevalent in regard to Sikh and Jain en-
dowments also. The section of the public interested i11 these endowments would,
therefore, need the protection t-.)t1lL'rretr by Explanation, to the satire extent as

those already entitled to its benctit. lt may be repeated that the Explanation

became necessary in view of the fact that certain judicial decisions took the

view that in the case of Hindu til1Ll0\\l11tiI'lIS, 'there is no express trust as such,

and the concept of trust which implies the vesting of property in the trustee,

could not be appropriately applied to these endowments, because there is no

vesting of property in these nianagersf Similar was the view regarding wakfs.

To override this judicial pronouncements, it became necessary to provide, tirst

that in such cases the endowment shall be tleeined to be a trust; secondly, that

it shall be deemed to be for a speciﬁc purpose and thirdly that the manager shall

be deemed to be the trustee. The background against which the Explanation

came to be inserted is to be borne in mind in suggesting its extension'.

.105. The express mention of Hindus, Muslim and Buddhist' endowments N"='.lf{°'
and the omission of mention of endowments of Sikhs and Jains may create anS;5:CJj:i:on_
impression that Sikh and Jain endowments are excluded from the beneﬁt of the
section. The practice of creating trusts for 'charitable purposes' is as much pre-
valent amongst persons following these two religions as it is amongst Hindus,
Muslims and Buddhists.' There is, in our view, hardly any reason why these "two
communities should be excluded from the beneﬁcial provisions of the Explana-
tion. '

Accordingly, we recommend that the existing Explanation to section 10
should be amended' suitably, on the lines mentioned above.

10.6. To proceed" now to at dillt-rcnt aspect of section it) it may be stated 1«w5,€e who
that the British Parliament felt that the corresponding section l9 of their Lirni- =1» also}:
tation Act, 1939 was working unjustly on an 'honest trustee' who was also a?§:e§_§'§Ii2't,
beneﬁciary under the trust. Thus if "X" is U. trustee of, and h;:neﬁ<:iary under amt. I980.
trust along with three more beneﬁciaries A, E and C, a ﬁlth person D can sue
without any barrier of limitation to recover the full amount of the share of the
trustiproperty to which he would have been entitled and obtain satisfaction out
of the share of X, the trustee ----benellciary even though limitation has expired

' against the other three beneﬁciaries A. B and C. That is to say. if the ﬁfth bene-

ﬁciary D has a 2 'L3 share. his entire share will be carved out of the allotment
-;f X which is only 25% of the entire assets leaving him with only 5'3}. The
amendment effected by U.K. Limitation (Amendment) Act. 1980 has come into
force on 1st May, 1980. Now. a ter the amendment, X will not be divested of

the 20% share, but only of the excess

Section 19 of the U.K. Act of 939 as amended in 1980 now reads as
under:-- '

'Paragraphs 10.1 and 10.2. sﬁpru,

2?. ' 10.3.

aAF:v1r,"11;§r?g3,[}1(],;v_ ;f£f°;,ram,m1d Arm: Ra/him.' $1933) l.L.R. 56 All. Hi. ll61P.C.), and cases
' ' i h $0.3. . -

m Pa'i:g}l('.p l'v1llkllCt.j_luCt';1-al'ltlltlLl Law of lit-ligiolls and (fharitablc Trusts (4th Ed. 1979), PBEC
328. para V7.l2. - V _' _

5See. for the suggested amendments, para 10.5 infra.

KS)

Desirability
o adopting
the English
provision.

Recommendation

89TH RJEPORT or LA\V CUMMN.()1<' INDIA ON 'run LIMITATION Aer. 1963
(Chapter /0-----Section l()--Suits Against Trustees.)

"10. (1) No period of limitation prescribed by this Act shall apply to
an action by a beneﬁciary under a trust, being an action---

(a) in respect of any fraud or fraudulent breach of trust to which the trustee
was a party or privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the
possession of the trustee, or previously received by the trustee and
converted to his use.

(IA) Where a trustee who is also a beneficiary under the trust receives or
retains trust property or its proceeds as his share on a distribution of trust pro-
perty under the trust. his liability in any action brought by virtue of paragraph
(b) of the foregoing sub-section to recover that property or its proceeds after the
expiration of the period of limitation. prescribed by this Act for bringing an
action to recover trust property shall be limited to the excess over his proper
share.

This sub-section only applies if the trustee acted honestly and reasonably
in making the distribution."

10.7. Though the problem sought to be remedied by the recent amendment
to the English Actl has not arisen in any, case decided. the amendment incor-

porated a salutary rule of equity and hence we recommend its adoption in our
Act.'

10.8. Accordingly. we recommend that section 10, should be re-numbered
as sub-section (1) and after the words "notwithstanding anything contained in
the foregoing provisions of this Act", the words and ﬁgures "but subject to the
provisions of sub-section (2)" should be added in it. New sub-sections (2) and
(3) should be added in section 10 as under 2-

"(2) Where a trustee who is also a beneﬁciary under the trust receives
or retains trust property or its proceeds as his share on a distribution of
trust property under the trust, his liability in any suit by virtue of sub-section
(1) to recover that property or its proceeds or for an account of such pro-
perty or proceeds after the expiry of the period of limitation shall be limit-
ed to the excess received or retained by him over his share.

(3) T he provisions of sub-section (2) apply only if the trustee, in mak-
ing the distribution, acted in good faith."

The Explanation to the Section should be revised as under : ----

"ExpIanation.--For the purposes of this section any property compri-
sed in a Hindu. Muslim. Buddhist, Sikh or Jain religions or charitable en-
dowment shall be deemed to be property vested in trust for a speciﬁc pur-
pose and the manager of the property shall be deemed to be the trustee
thereof."

'Paragraph l0.6 supra.
"For the draft, see para 10.8 infra.

89111 REPORT or mw comm. Oi INDIA oN THE Llhill/\'Tl()N ACT, 1963 21
(C/rapier 1/---- Section 11- Suits on Foreign ('(Il£.5'('S of Action.)
CHAPTER 11
SUITS ON FORl£l(;N CAUSES OF AC HON

11.1 While section 10 was a negative provision excluding from the scopcs¢¢uun11~--
of the Act certain kinds of suits, section ll(l) is a posiriw provision to the E'r:'t2'r'e"('l"'l.'nw
cﬁect that suits instituted in the territories to which this Actextends on contracts elsewhere.
entered into in the State of Jammu & Kashmir or in a foreign country shall be sub-- ;
ject to the rules of limitation contained in the Act. Not Content with this positive '
provision, the section, in sub--section (2), rules out the application of foreign rules
of limitation by providing that no rule of limitation in force in the State of Jammu &
Kashmir or in a foreign country shall be a defence to a suit instituted in the
territories to which the Act extends on a contract entered into in that foreign
country or in Jammu & Kashmir unless two conditions are satisfied, namely:

(a) the rule has extinguished the contract. and

(b) the parties were domiciled in that State or in the foreign countr_v dur-
ing the period prescribed by such rule.

11.2. The section is based on the principle well recognised in private inter-
national law in the Anglo-American Legal Systemsmthat rules of limitation are Principle-
part of the [ex fort'. Whether an obligation is to be enforced or not depends ex-
clusively upon the law of limitation of the forum in which the suit is brought.

As observed by Story very long ago.'

"it has accordingly become a formularly in international jurisprudence
that all suits must be brought within the period prescribed by the local
law of the country where the suit is brought (Icx fori). otherwise the suit
will be dismissed." A

In contrast. the foreign law of /1n'.\'r'rip(1'()rl would be applied in a country.
because when a law extinguishes the right by reason of lapse of time. the right
itself does not survive, and there is nothing to enforce.

11.3. It may be mentioned that in proceedings brought in national courts P()51'ﬁ0]!
to enforce rights created by the Treaty of Rome (which established the Euro-:'l:u;;'r
pean Economic Community), the relevant limitation period is that fixed by them' Rome,

State in which the action is brought?

11.4. The traditional English rule is well settled. In Prestenand Ncwson on The English
Limitation of Actions. the authors wrote as follows under the heading "Private Law.
International Law":----3

"The English courts have adopted a very simple method of dealing with
the rules of limitation in private international law. It is common ground bet-
ween all systems of private international law that matters of procedure are
to be determined by the lex fori. In so far as the Statutes of Limitation pres-
cribe periods within which actions may be brought, they are, in English courts, I
classiﬁed as methods of proceeding."

1Story, Conﬂict of Laws. (8th Ed.) Article 577. page 794; Cf, Rm-Jmzulmye v. Lujlaoblmy,

(1852) 5 M00. LA. 233, 265. 7.67. lP.C.3-

"Halsbury 4th Ed. Vol 28 page 266 para (:06.

3Prcsten and Ncwson, Limitzition ol' Actions (1940). page I6. quoted in ,l\'mIriguq: v.
R. 1. Parker, (1966) 3 ~W.L.R. 546, Cf_ ibid. (1953 ed), page 15 (no materiztl change).

. Restatement

Criticism by
Cheshire and
North.

Status quo
recommen

by U.K. Law
Reform
Committee.'

'8')1'H iu;i'oi<'r or LAW coiiiin. 01- INDIA ON THE Lll\tllA'l|()I\ Act. 1963
(Chapter 11----~Scction 1'1----Suits on Foreign causes of Action.)
Referring to Don v. Lipmamz,' the authors observed.'

"But a foreign rule of limitation is not classified as a matter of procedure in
an English court if it cxtinguishcs the right as well as the renzcdy. The fact
that on expiration of the foreign period the plaiiitiffs right is to be extingui-
shed does not help a plaintiff who fails to sue in England within the English
period, but a defendant may rely on the extinguishmcnt by the foreign period
' irrespective of whether the English period had elapsed .......... .."

11.5. The rule has also been incorporated as Rule 004 of the Restatement of

Law of the American Law lnstitute thus."

Rule 604--F0reign Statute of Limitations

"ll action is not barred by the statute ol limitatioiis of the forum. an
action can be iilaiiitaiiiedtliough action is barred in the State where the
cause of action arose." '

11.6. Cheshire and North have observed', criticising the English approach

as under ;--

"English law in unfortunately committed to the view that statutes of limita-
tion, if they merely specify a certain time after which rights cannot be en-
forced by action. affect procedure, not substance' ......... .... ..In the result,
therefore, any relevant statute of limitation that obtains in the lexfori may be
pleaded while a statute of same foreign. law, even though it belongs to the
proper law of the transaction, must be disregarded.' The prevailing view on
the continent is to be opposite cjjcct.

"This is another cxanipte where English law. through its failure to in-
terpret a foreign rule in its context has gone astray".

11.7. The U.K. Law Reform Committee in its 2|st Report' teok notice of

this criticism, but did not make any recommendation in this regard:

"As we have explained. English law treats limitation as part of the law
of procedure. An English court will, therefore, always apply English law
Iex fort') 'to an issue of limitation, notwithstanding that the substantive rights
in question are governed by foreign law.' In determining the existence of
those substantive rights a distinction has to be drawn between a foreign rule
of limitation and a foreign rule of prescription: if the 'proper law' of the
transaction (Iex causae) extinguishes the right through lapse of time, the
English court will give effect to that extinction if. on the other hand, under
the relevant lex causae lapse of time merely bars the remedy (as it does in
most cases in English law). the English courts will ignore the foreign limita-
tion period and apply English law alone.

lDon v. Lipmami (1837) 5 C_l.&Fin._l. - ' V '
9See Preston & Newson. Limitation of Actions H940), page to. quoted in Rodriguez v.

R. J. Parker, (1966) 3 W.L.R. 546, 560.

3A.L.I. Restatement of Conﬂict of Laws: Rule 604.
'Cheshire and North. Private International Law. tltlth Edition. 1979), page 695.
5Rodriguez v. R. J. Parker (Male), (1967) 1 QB. llo. l3l-136 and see Pedreren v.

Y<NH1_-E'. (1964) 110 C.L.R. 162.

"'This_ has been followed even in Australian jurisdiction. Pmiuzza & Co. P/pt-. Ltd, v,

Allied lnlcrstulc (()ld.) PI)'. Ltd., (1970) 2 N.S.W.D.R. 192.

7Law Reform Committee. Zlst Report (Cmnd. 6923) (September. I977), page 30.
"Harris v. Quine, (1869) L.R. 4 Q.B_ 653.

89TH REPORT or mxv ('0MMN. or lNDlA rm THE LIMITATION .-xcr, l'l6.l

(('/rapier ll---- Sm-Ifon / I .§uiI.v on I7or'r'1'gII (-(m.ses of A ( lion.)

Classiﬁcation of limitation is not itself part of the law of limitation but
of private international law and therefore not "within our terms of reference.
For that reason. we make no positive recommendation about it. Nevertheless
we received from Dr. F. A. Manna memorandum arguing persuasively in
favour of making a change in the English rule (which has been heavily criti-
cised by academic writers)' and we think it right to mention the matter so
that it may be considered as a possiblesubject for reform."

11.8. Besides Cheshire another team of distinguished authors?

have also (.1-nit i~m--

Sykes and

attacked this principle of English law thus:

"Statutes of limitation in the familiar sense usually prescribe that no court
proceeding shall be brought to enforce a right after the lapse of a certain
period of time. Sometimes however they provide that the right or title is ex-
tinguished." It is only statutes of the latter type that the English classiﬁca-
tory technique regards as pertaining to substance. The other type of statute
of limitations which merely extinguishes the remedy, is regarded as proce-
dural.'

"This means that a plaintiff can sue in an Australian court on a cause
of action which, though barred by the proper law of the transaction. is not
barred by Australian lawzi it also means that an action cannot be brought
in Australia if barred by an Australian statute of limitations. though action
would still be competent by the proper law".

"It is suggested that such applications rest on no intelligible principle.
nor is the distinction between extinction of right and extinction of remedy
meaningful in this context. A statute can hardly be regarded as prescribing
a mode of regulating the course of litigation if it simply says that no litiga~
tion can take place."

However, they add-

"Nevertheless. the tide of English decisions has probably set so ﬁrmly
in the direction of the dichotomy between extinction of right and extinction
of remedy hat no movement is now possible."

11.9. We have devoted considerable thought to this aspect. With great res:
neet. the criticism made by Cheshire of the traditional English Rule (which has
been 'substantially followed in section ll), appears to be based on one faulty con-
cept of reasoning. The law of limitation may not be a part of the law of "proce-
dure" in the narrower sense. but it is certainly a part of adjective law in the widest
sense. The criticism does not do justice to the juristic aspect mentioned above.
Procedure may be a narrow ﬁeld. but adjective law is a wider one. covering the
entire process of litigation. including the time and manner of pursuing a remedy
in the Courts of a country. It is but fair that the courts operating within a coun-
try should have regard only to the law of that country. so far as the pursuit of

'E2. .l.D. Falconbridge. Fssavs. on the Conflict of Laws. 2nd ed. Ch. 12. Cheshire.

»PriVate lnternational Law. 9111 Ed. red. North). pages 687690.

'~'S_vkes and Pryles_ "Australian Private Tnternational law" (1979). page l30.
3As (in the English context) in the case of so~called adverse possession of land' and
in some cases of failure to take action in respect of chattels. .
'Huben V. Stafner, (1835) 2 Bing (N.C.) 202: 132 ER. 80. See Subbnrnv.rl<_r v.'Wamzg,
(I968) 3. N.S.W.R. 261 (Nagle J.).
5Harris v. Quine, (1869) LR. 4 0.13. 653 (Court of Queen's Bench).
'British Linen Ca. V. Drummond, (1830) 10 E & C 903; 109 E.R._683.

Pryles.

Correct.
3 pproach.'

Some theore-
tical aspects
answering the
criticism.

Some
practical
aspects of
importance.

89TH REPORT or LAW COMMN. or INDIA ow THE LIMITATION A01. 1963
(('/Ia/IIH7 ll -- Smliu/1 /I -Sm'/.s* on For('igI1 (.'(III.&'('A' of Artion.)

remedies in those courts is concerned. Limitation is certainly concerned with the
actual process of litigation; the need'for invoking a rule of limitation arises only
if and when the plaintiff invokes the aid of the judicial process. In this sense.

limitation is very much concerned with the enforcement of the remedy within'

the portale of the court and is therefore rightly regarded as belonging to adjec-
tive law.

We may quote the views of an American author' who has beautifully des-
cribed the distinction between remedy and right:----

"A broken promise is not repaired by the passage of a period. False
Words that stain a name are not made true because twelve months go by.
Pain may recede in memory, but that does not mean it was not sufferred
when the victim was assaulted. If these things are recognised as deserving
reparation, they deserve it no less the day after the term is reached than
they'did the day before. Time does not heal all wounds; homily is fatuous

. . . . . . . . . . . . . . . . . - . ..

"Thus, limitation appears to be not a matter of substantive right, but a
practical device. It is difficult to deal with an event long after it has hap-
pened. Memories fade. witnesses die. documents vanish. proof one way or
the other is hard to find. Moreover. even with all the evidence at hand. the
outcome of a law suit will not necessarily coincide with truth. Much de-
pends on the hazards of litigation. on the wisdom and honesty of judges
and jurors, the luck of testimony. Hence it is only reasonable that the alle-
ged wrong doer (in most instances. we will not be certain he did wrong)
should one day be entitled to repose. Finally---most important and scarcely
ever mentioned~if all disputes were kept alive forever. then there would
be an inﬁnity of litigation. In the management of a polity there needs to be
an end of things." '

11.10. It has been stated by the critics of the traditional rule that "a statute
can hardly be regarded as describing a mode of regulating the course of litiga-
tion. if it simply says that no litigation can take place." However. this criticism
is itself open to criticism. The procedural law contains so many rules which bar
the very entertaining of a suit on procedural grounds and nobody has ever said
that such rules are not regarded as falling appropriately within the domain of
procedure. Our own Code of Civil Procedure contains examples of such rules in
section 11, section 47. section 66. section 80, section 86. Order 2. Rule 2. Order
7. Rule ll, Order 9. Rule 8. Order 23. Rule l and so on.

11.11. Apart from these theoretical aspects. it should also be mentioned that
there is an important practical aspect which cannot be overlooked. When a court
embarks upon an inquiry into the period of limitation. such an inquiry covers
not merely the time limits proper (the arithmetical periods). but also various
detailed rules for the computation of those periods. lf we were to expect courts
to have regard to foreign law of limitation. that would mean calling upon the

court to 'study. understand and apply the foreign law in all its complexity and

profusion. This would be an extremely diﬁcult task.

11.12. For all these reasons. we have been unable to persuade ourselves to
accept the criticism made by Cheshire and others? of the traditional English
Rule~a rule which has been adopted in the American Restatement also."

'Charles Rembar. The Law of the Land (1980) page 81.
5'Para 11.6 and 11.8. .mpra_
"Para 1l_5, supra.

89TH REPORT or LAW COMVN. or INDIA ON THE LIMITATIONIACT, 1963 25
((Vmp!er Il~~S'c(-rim: I/I --Sm'1.s on Foreign causes of Action.)

11.13} We may add that on grounds of policy also, a court ought not to be p_o1i¢y_¢on-
bound by the rules of limitation applicable under a foreign [ex causae. The time "d°"at1'!"3-
limit may be either unreasonably short or unreasonably long:

11.14. It is not always an easy task to ascertain foreign law. This could D_ifﬁculty>
prove an onerous burden on the courts. The burden would be all the more one- §fga§§:g;'n"'
rous for the Indian courts to ascertain the foreign law of limitation of I50 coun- rule.
tries by paying for the fees and costs of foreign experts which would unneces-
sarily delay the disposal of cases. It should be remembered that, as mentioned
above, if the foreign law is to be applied, the Indian court will have to study
not only the time limits, but also the principles for the computation of periods
of limitation. This would be a stupendous undertaking.

11.15. Therefpre, we see no reason to disturb the principle underlying sec- Suits on
tion 11. Some matters of detail concerning the section may now be dealt wiﬂ1.§§'if)°If gtfhcr
Though sub-section (2) of section fl is conﬁned to contracts. the position would than contracts.
not, in substance, be different for other causes of action that arise outside the

_ territories to which the Act extends.

The section has been held not to be exhaustive.' Thus, for example, the
same principle applies to execution? Again, if a suit is for conversion, the same
principle would apply.'

11.16. In this context, the history of the section is interesting. Section 12 of History of

the Act of 1871 provided as under:------ gem
the point of
"12. No foreign rule of limitation shall be a defence to a suit in British View Of

India on a contract entered into a foreign country, unless the rule has ex-s°°p°'
tinguished the contract. and the parties were domiciled in such country
during the period prescribed by such rule."

In 1877. a positive assertion about the applicability of the Indian Act to
suits instituted in British India was made. Section II of that Act read as under-:--«

_ "ll. Suits instituted in British India on contracts entered into a foreign
country are subject to the rules prescribed by this Act.

No foreign rule of limitation shall be_a defence to a suit instituted in '
British India on a contract entered into a foreign country, unless the rule has
extinguisl1ed~the contract, and the parties were domiciled in such country
during the period prescribed by such rule."

11.17. In the draft Bill of the Indian Limitation Act, 1908, no change from comment.
the Actof 1877 was proposed as regards this section. However, one comment' ﬁgggfsh
. was received which was as under:---- '

-"The words 'or obligation incurred in' should be added after 'contracts
entered into', in order to show that suits, of whatever class the cause of
C:

'Dickie & Co. v. Mun. Board. A.l.R. 1956 Cal. 216, 219 (Bachawat J.).

2Nabibhm' Vnsirbhai V. Dayabhai Amylak, A.I.R. 1916 Bom. 200, 201, 202: I.L.R. 40
Born. 504. V

3Ruckmaboyee V. Luloobhoy Mothchand, (1851-1855) 5 M.I.A. 234 (P.C.).
'I-LS. Phadnis, Acting District Judge. Khandesh No. 2, 751 dated 30th November, 1907,
National. Archives Papers. -.\

5---14 Mof LJ&CA]NDI83

Need for
widening
the section.

Section to
be extended
to proceed-
ings other
than suits.

Recommendation.

89TH REPORT or LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963
(Chapter, /1 --Se<'/irm /1» ~----Suits on Foreign causes 0]' Action.)

action in respect of which arises in foreign country, are subject to these
provisions." A

This is an interesting comment raising as it does a point which we our-
selves have apart from the comment pursued.

11.18. To revert to the present section and current needs, we wish to point
out that the principle of private international law upon which the section is
based, makes no distinction between suits based on contracts and other suits.
Practical considerations also justify a widening of the section so as to make it
applicable to all causes of action. There is no reason for adopting a diﬁerent
approach as to non-contractual causes of action. We think that the section should
be widened.' '

11.19. There is another point in regard to which also the ambit of the sec-
tion can be conveniently widened. The section, as it stands at present, is con-
ﬁned to suits; we are of the view that it should be extended to all proceedings.
Although proceedings other than suits wheteinthe question of competition bet-
ween' Indian and foreign laws of limitation may be in issue are not many, there

is no reason why the legislature should not recognise the principle underlying

section 11 and give it the widest amplitude. Irrespective of the character of the
proceeding, if the remedy sought is not barred by the law of limitation of the
forum, then in that forum the law should allow the proceeding to be maintained,
even though it may be barred by the law of limitation of .the country where the
cause of action for the particular proceeding arose, The principle on which
section 11 is based----- a matter which has been already elaborated in the preceding
pa1'agrap'nsi--5should be regarded as equally applicable, whether the litigation is
in the shape of a suit or in the shape of any other proceeding. Accordingly, we
propose a widening of the section on this point also?

11.20. In the light of the above discussion, we recommend that section 11
should be revised as underzw

Revised section 11

''ll. (1) Suits and other pr0Ceedings instituted in the territories to
which this Act extends on causes of action arising in the State of Jammu
and Kashmir or in a foreign country shall be subject to the rules of limi-
tation contained in this Act.

(2) No rule of -limitation in force in the State of Jammu and Kashmir
or in a foreign country shall be a defence to a suit or proceeding instituted
in the said territories on a cause of action arising in that State or in a foreign
country unless--

(a) the rule has extinguished the right which the cause of action is
founded.' and

(h) the parties were domiciled in that State or in the foreign country
during the period prescribed by such rule."

'For a draft of revised section 11, see lpara 11.20, infra.
3Paragraphs 11.2 to 11.4, supra.
'For the draft see para 11.20, infra.

89TH' REPORT OF t..\\v co.\.t\.1.\'. or INDJA ON THE Ll:~ltr',\'t'tqN Act'. 1963
(Chapter 12-Scctioin I2' : lixrluowz of Time in Legal Proceedings)
CHAPTER 12
SECTION I2: l'..\(T.USl0N til' TIME IN LEGAL
PR()Cl<;IiDlNGS

12.1. With section 12 begins a set or provisions dealing with the computa-Section 12..
tion of periods ol' limitation. x\ssuniing that the lndian law of limitation applies
to the case, attention has also to be paid to the arithmetic oi the matter. In
section l2. one ﬁnds two sets of pF(t\'lSl0i'.S'.~--OllC general, the other of a more
limited application. The first set oi' proxisions provides for excluding the first
day~~the day from which the period is to be reckoned. The second set of
provisions protides for excluding. in conipisiing the' period oi' limitation. the
time requisite for obtaining certain copies. The second set of provisions is
conﬁned to appeals and certain appiicatioiis, while the first set applies to all
suits, appeals and applications. The two sets have' nothing common to them
and it is only the accidents of legislation that have brought them together.

12.2. The first set ol' provisions is to he found in section 12(1) and in the The pm-nu-pl:
earlier part of section 12(2). Section E24 1) provides that in computing the period underlying
of limitation for any suit. appeal or application, the day from which such period ff:§]%':l§nd:}€_
is to be reckoned shall be excluded. On :he same analogy, the earlier part of
section 12(2) provides that in computing the period of limitation for an appeal
or an application for leave to appeal or for revision or for review of a judgment,
the day on which the judgment complained of was pronounced, shall be ex-
cluded. Broadly stated. the principle fiere is that the date of accrual of the
cause of action is to be excluded.'

Provisions for excluding the first day are contained in the General Clauses
Act" and the Transfer of Property Act" also. This is more a rule of convenience

'than a rule based on any fundamezniel prin<;i_nlc of justice.

12.3, The second set of provisions deals with the time requisite for obtain-Pmciple
jug copies of judgments, decrees, sentences. orders and awards, where an appeal undgrlvins
or an application of the speciﬁed category is to be ﬁled. Secums 12(2)'

in section 12(2). latter half and sections l2i2)(3_) and 12(4). exclusion of

time requisite
_ for obtaining
The Explanation to the section t'\\rl'Ilt.'ll has provoked some controversy, to 001716!-

' be mentioned later') reads as under: - '

"E.t'plzmati0n./--In coinputing under this section the time requisite for
obtaining a copy of a decree or order, any time taken by the court to pre-
pare Lhc decree or order beiorc an application for a copy thereof is made
shall not be excluded."

'The principle underlying the set oi' provisions for the exclusion of "time
requisite" in obtaining copies of _iur.|iciu| determinations is two-fold. In the first
place, before a litigant aggrieved by the decision of a court or arbitrator pursues
a remedy by way of appeal or application in order to contest the legality, pro-
priety or correctness of such decision. it is proper that he should have

'C/. Gurzapatl V. 5r'Ilturt'.mu ( I586) l.l..l\'. Ill Mod. 292.
'--'Scction 9. General Clauses Aer, 1.\")7.

"Section lil}~I'ranslcr ol' l'io;icrti '\t . 18-32.

'See discussion relating to section 12 Explanation infra.

,.
u

TllCSC EITC C0nlalned and

Law Com-
mission
Report.

newly added

. exp18n39°n~ .

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION Acr, 1963

(Chapter I2--Section 12: Exclusion of Time in Legal Proceedings)

knowledge of its full contents.' Secondly, in some casesgthe law requires: that the.
appeal or application must be accompanied by a copy of such decision'.

12.4. The Law Commission, in its Report on the Act of 1908, while com-

menting' on section 12 of the Act, observed as under:--

"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 re-
quisite'. But we 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 provi-
sion should be added to make this clear."

The Commission alsolrecommended a draft of an Explanation to be added

at the end of section 12 for achieving the above object:

"Expltmation.--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."

12.5. Even though the recommendation of the Commission was accepted in

principle, the Explanation that was enacted has used the expression "shall not
be excluded" instead of the wording suggested by the Commission "shall not be

regarded as time requisite". The Explanation emerged _as follows the Act
as passed in 1963:

"Explanation.---In computing under this section the time requisite for
obtaining a copy of a decree or an order, any time taken by the court to
prepare the decree or order before an application for a copy thereof is
made shall not be excluded."

12.6. Difficulties of interpretation arose under the newly added Explanation

to Section 12. In a full Bench decision of the Bombay High Court', it was
observed:--

"On the plain and grammatical construction of the Explanation to section
12(2) of the Act the intention of the Legislature is clear namely, that while
computing the time requisite for obtaining a copy of decree any time taken
by the court for preparation of the decree before an application for a copy
thereof is made is not to be excluded, that is to say, such period will have
to be included in computing the time requisite for obtaining copy."

Earlier, a full Bench of Patna High Court' had taken notice of the ration-

ale underlying the recommendations of the Law .Commission, but concluded
that the text of the_Explanation said just the opposite:--

"I am aware that the Law Commission, while recommending the recast of
the old Limitation Act, stated that in their view, the period taken by the
court for preparing the decree before an application for a copy is made,

"should not be counted in favour of the. applicant. One of the objects and'

reasons given in the bill was that any delay in the oﬂice of the court in

'Cf. Surty V. Chettyar, (1928) 55 LA. 161, 170 (PC).
30.41, r.l, C.P.C. is one example.

3Law Commission of India, 3rd Report (Limitation Act. 1908), page 17-18, para 37,

page 76 (section 12).

'Subbash V. Maroti, A.l.R. 1975 Bombay 244 (F.B.).
'Stile of Bihar V, Md. Ismail. A.I.R. 1966 Patna 1 07-3.).

89m REPORT or Law' COMM.\'. or INDIA ()N THE LIMITATION ACT, 1963 _29
(Chapter 12-----'Section l2~-- Exclusion of time in legal proceedings)

drawing up a decree or order before the a_pplication for a copy thereof is
made, shall not be excluded. The recommendation of the Law Commis-
sion or the objects and reasons stated in the bill cannot alter the clear and
unambiguous meaning of the actual enactment that the parliament passed."

12.7. Fortunately. the Supreme Court,' has now settled the position and Quielus by
interpreted the Explanation to section 12 to mean that a person cannot get ex-%:,':,§fne
clusion of the period that elapsed between pronouncement of the judgment and
the signing of the decree. if he made the application for a copy only after pre-
paration of the decree. In view of the latest judgment of the Supreme Court. the
controversy has subsided. However. in order to express the intention and true
meaning more clearly, we recommend a suitable change in the Explanation under
discussion." /'

I
I

12.8. A situation may arise when there is a legal impediment to prcpa1'ing_Legal_

a decree. When there is a legal impediment to prepare a decree on account for igllifgnlent
non-compliance with such direction /01' for other legally permissible reasons the preparation
law should allow relaxation. The point was adverted to in one case before the Of a d°°"°°'
Supreme Court." We are recommending a suitable amendment' inserting a

speciﬁc provision on the subject.

12.9. At this stage. we may also take notice of the newly added rule 6A Order 20-
to Order 20, Code of Civil Procedure. 1908. In implementation of the recom- rcililve,-16A'

mendations of the Law Commission made in its Report, (on that Code)' it has PF0C€duF°
now been made obligatory upon the courts to prepare the decree as expediti- E'§e:t--(,f_
ously as possible and, if it cannot be so done within 15 days from the date of
the pronouncement 'of the judgment, the aggrieved party is enabled to obtain
a certiﬁcate that the decree has not been drawn up. The aggrieved party can
in such case prefer an appeal treating the last paragraph of the judgment as a
decree. Similarly, the decree holder can initiate the process of execution on
the basis of the last paragraph of the judgment, which itself shall be deemed
to be the "decree" for the purpose of execution. The amendment made in 1976
thus confers the status of a decree upon the copy of the last paragraph of the
judgment, but that status comes to an end the moment a regular decree is
drawn_up.

12.10. So far as the inter-coimection of Rule .6A of Order 20. Code of Civil Amendmem of
Procedure, 1908 with Section I2. Limitation Act is concerned, itlwould be 55°50'? 12
uncontraverted that the aggrieved party would as much be entitled to obtain an :f,%:,rd$j=1gth¢
exclusion of time on account of delay in obtaining a copy of the last paragraph Efslthlzaragraph
of the judgment (on the basis of which he can now take steps for ﬁling an judgment
appeal), as he would be in obtaining a copy of the actual decree, It is true
that the party would be. able to obtain a copy of the last paragraph of the judg-
ment somewhat earlier than eopy of the decree. Nonetheless, the copying sec-
tion of the court is bound to take some time in supplying a copy of even the
last paragraph of the judgment. To put the matter beyond the pale of doubt,
we recomend that a suitable Explanation should be added to section l2 on the
above point."

'Udayan C/zinubhai V. R.C. Bali. A,l.R. l977 SC. 2319.

"See para 12.13 infra for the draft discussion.

3Udayan Chinubhai V. R. C. Bali, A.l.R. I977 S.C. 23l9, 2337. Para 35.

'Sec para 12.13 infra. 5

'Law Commission of India, 5-llh Report (Code of Civil Procedure, 1908) Chapter 20.
"See paragraph 12.13 infra. _

' .
Quasi-
judicial
tribunals.

Marginal
note to .
section 12
to be

amended.

Recommendation.

(S. 12.
Expl. I)

(New)

1 12 will need amendment.

in
89TH Rl;'POR'l' or LAW C()Ml\1N. or INDIA ON rim LlMlTA'l'l()'N ACT, 1963

(Chapter l2~«Section l2ﬂExclusion of time in legal proceedings)

-12.11. One more change needed in Section 12 concerns tribunals. We are

of the opinion' that the section should, by an express provision, be extended

to quasi-judicial bodies, since there is no reason why the time taken in the
various steps contemplated by .the section should not be available in regard tp
appeals before such tribunals. It is desirable that the matter should be governed
by a speciﬁc provision applicable to all such tribunals rather than be left to be
dealt with on a case--to-case basis.

12.12. There is yet another point (though a minor one) on which Section
The marginal note to section 12 speaks of "Exclu-
sion of time in legal proceedings", and the expression "legal proceedings"
should be given awide meaning so as to include proceedings before tribunals.
This would mean amending the section. If section 12 is to be amended so as

to put it beyond doubt that the section is applicable to proceedings before tri-_

bunals,' it would be better to amend the marginal note also. This is so because
where the marginal note has not been amended despite the addition of matter
in the section, sometimes controversies arisef Such controversies are worth
avoiding wherever possible.

12.13. In the light of the above discussion, we recommend the following
amendments to section 121--

(i) The marginal note to the section should be revised as under:---- *

"Exclusion of time in legal proceedings, including proceedings before
quasi-judicial tribunal.' V

(ii) The present Explanation should be revised, and certain further Expla-
nations should be added. The Explanations to appear before section 12 will
now read as under : --

"Expla'uatioh I. --~----Any time taken by the court to prepare the decree
or order before an application for a copy thereof is made shall not be re-
garded as time requisite for obtaining the copy within the meaning of this
section?' '

Explanati0n ll.~-~--Whcre there is a legal impcditltc/It to the prepara-
tion of a decree or order on account of a direction in the judgment or non-
compliance with the direction or for any other legally permissible reason,
any time during which the decree or order cannot be prepared on account
of such legal impediment shall be regarded as time requisite f0r obtaining
the copy within the meaning of this section.'

"Explanation III .--F or the purposes of this section, 'decree' includes the
last paragraphrof the judgment, where it is proposed to use a copy thereof for
the purpose permitted by rule 6A of Order XX in the First Schedule to
Code of Civil Procedure, 1908."

"Explanation I V.~«For the removal of. doubts, it is hereby declared
that the provisions of this section apply to proceedings before quasi-judicial
tribunals, as they apply to proceedings before courts."'

'Paragraph 12.11. supra.

2Tara Prasad Singh etc. v. Union of India & others (1981) l S.C.J. 53, 67.

-'Paragraph 12.12 supra.

"Paragraph 12.9 supra.

~"Paragraph 12.8 supra.

"Paragraph 12.10 supra.

"Paragraph 12.11 supra.
I

:
89TH REPORT or IAW comm. or INDIA on rnr LIMITATION ACT. 1963
(Chapter l3----»--Sn-lion l3---- Ext Imiun of IfII'It" whvre Imw In .\'lI¢' or nppzwl
us pzmpcr is applied for

CHAPTER 13

SECTION 13: EXCLUSION OF TIME WHERE
LEAVE T0 SUE OR APPEAL AS PAUPER IS
APPLIED FOR

13.] Section l3 deals with at tel} special case; provision is made for ex-
cluding time taken in prosecuting an application for leave to sue or appeal as
a "pauper". where ultimately such leave is refused, and the "pauper", has then
to file a suit or appeal as an ordinary person. The section was introduced _in

1963. It was not contained in the original Bill and was inserted' by the Joint

1 Committee on the Bill for the following reasons:--

"The Committee feel that in a case where an application for leave to
sue or appeal as a pauper has been made and rejected, the time taken in
prosecuting in good faith such application should be excluded in comput-
ing the period of limitation prescribed."

13.2. The Section really consists of two parts. and its content may be re-

stated in a simplified form thus: ~ I

(l)" Where an application for leave to sue or appeal as a pauper has been
made and rejected, then. in computing the period of limitation pres-
ribed for any suit or appeal in such case, the time during which the
applicant has been prosecuting in good faith his application for such
leave shall be excluded. ' i

t (2) The Court may, on payment of the court fee prescribed for such suit
or appeal, treat the suit or appeal as having the same force and effect
as if the court fee had been paid in the ﬁrst instance.

_ 13.3. The purport and signiﬁcance of section l3 will be better understood
if one bears in mind tie s;chcinc of the provisions" in the Code of Civil Pro-
cedure', 1908 as to suits and appeals by "indigent persons" (who were. before
the amendment of the Code in 1976, described as "paupers"). A person who
does not have suﬁicient means to pay the court fee prescribed for the plaint can
seek leave of the court to sue as an indigent person. To determine whether
-such leave should be granted, the court is required to hold a preliminary in-
quiry, at the end of which either the leave prayed for is granted or refused.

If the leave is granted, then the application is converted into a plaintathe
Code of Civil Procedure, 1908 so provides in express terms. In harmony with

this procedural provision, the Lirmtatioiv Act" enacts that for the purposes of

the Limitation Act,'
"(a) a suit is instituted .... ..

(ii) in the case of a pauper when his application for leave to sue as
a pauper is made." '

What happens, however, where the application is refused and the applicant
has to ﬁle a suit in the ordinary manner after payment of court fees? The Indian
Limitation Act. 1908 contained no provision on the subject. As regards the

'Joint Committee Report on the Liinitation Bill. 20 November, 1962.
2Orders 33 and 44, Code Civil Procedure, 1908.
3Section_ 3(2)(d)(ii), Limitation Act, 196_3.

Section 13.

Analysis.

Procedural
provisions

as to indigent
-persons.

"\
, Verﬁl change
recommended.

Section 14--
Exclusion of
time taken by
'infructuous
legal procee-
dings.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l3--SecIimz l3"~E/\'('llISI'()ll of lime where leave to sue or appeal
as pauper is applied for
(Chapter 14--Section l4---TI'me talcen in infructuous legal proceedings.)

Code of Civil Procedure, section 149 of the Code empowers the Court to give
time to a person for the payment of court fees generally. However, this section
does not provide for the starting point of Limitation. Moreover, there is a
conﬂict of decisions on the precise elfect of an order under the section.' So
there was no "relation" back of the suit ﬁled within the extended time."

The provision in section 13 of the present Limitation Act now gives a deﬁ-
nite answer; the time taken in the (infructuous) application is excluded when
computing the period of limitation prescribed for the suit ﬁled (on payment of
court fees). As regards appeals, the Courts, under the earlier Limitation Act,
generally used to allow the beneﬁt of the relaxing power under section 5 of the
Limitation Act, treating the fact that the infructuous proceedings had been
prosecuted in good' faith as a "suflicient cause",within the meaning of section
5 for condoning the delay. Under the present section 13, resort to section 5 is
no longer' required, since section 13 makes an appropriate for appeals also.

13.4. While no changes of substance are needed in the section, it is neces-
sary to pdlnt out that the words "as a pauper" occurring in the section are out
of tune with the phraseology of the Code _of Civil Procedure, 1908 as amended
in 1976 on the recommendation3 of the Law Commission. The current phraseo-
logy is "indigent person" in the amended Code.

Accordingly, we recommend that in section 13, for the words "as a pauper",
the words "as an indigent person" should be substituted.

CHAPTER 14

SECTION 14 : TIME TAKEN IN INFRUCTUOUS
LEGAL PROCEEDINGS

14.1 It often happens that a litigant pursues civil proceedings bona fide and
with due diligence. but the proceedings fail because the Court is unable to enter-
tain them by reason of defect of jurisdiction or other cause of a like nature.
The litigant is therefore, compelled to institute fresh proceedings in a competent
court in the proper manner. It is but fair that the time taken in the earlier civil
proceedings should be given credit, when computing' the period of limitation for
the later proceedings. Though the English law recognises no such rule, the Indian
legislature has, for a long time, given recognition to this principle, in regard to
certain situations. Section 14 codiﬁes the principle. Sub-section (1) covers suits
relating to the same matter in issue. Sub-section (2) covers applications for the
same relief. Sub-section.(3), which was inserted for the ﬁrst time in 1963, is
meant for a case ,where the ﬁrst suit was withdrawn unde-r 0.23, R. 2 of the Code
of Civil Procedure, with permission to ﬁle a fresh suit. In all the three sub-
sections, it is necessary that the earlier proceeding must have failed by reason
of a "defect in jurisdiction or other cause of a like nature".' A

An Explanation to the section----

(a) provides that the day of institution and the day of termination of the
earlier civil proceeding are both to be counted;

'Mulla, Code of Civil'Procedure. Abridged edition (1982), Dage 323.

"Naraim' v. Makhan, (1885), I.L.R. 17 All 526. _ _

3Law _Commission of India, 54th Report (Code of Civil Procedure. 1908), Chapters
33 and 44.

'For various cdnditions of the section, see Peerappa V. Basamma, A.I.R. 1981 Karn.
163.

89TH REPORT OF LAW ('()MMN. OF INDIA ON THE LIMITATION ACT, 1963

(Chapter 14--SecIi0n l4---~Time taken in infructuous legal proceedings.)

(b) makes it clear that a plaintiff or an applicant" resisting an appeal shall
be deemed to be 'prosecuting' a proceeding: and.

(c) expressly' provides that misjoinder of parties or of causes of action shall
be deemed to be "a cause of a like nature with defect of jurisdiction".

In the Indian Limitation Bill, 1908, as circulated for comments, the Explana-
tion regarding inclusion of misjoinder of parties or causes of action was absent,
with the result that a number of comments we e received,' urging the Legisla- .
tive Department -to resolve the conﬂictz on the question Whether misjoinder of
parties or cause of action fell within this clause. These suggestions were accept-
ed, and that is how the Explanation made its appearance on the statute book.

14.2. An important question that has arisen in the context of section 14 section 4 and
may be considered at the outset, since it concerns section 4 as well. Put in5'3"i°" "-
simple terms, the question is this--~Can a plaintiff avail himself of the combined
beneﬁt of section 4 and /section 14. A Supreme Court case3 illustrates the pro-
blem. A suit for damages was ﬁled in a Kamal Court on 2nd March, 1959.
Limitation had expired on 1st March, 1959, but that was a holiday. The pre-
sentation being to a wrong court, the Karma] court returned the plaint on October
28, 1959, and it was presented the next day, i.e.,. on ,29th October, 1959 to the
-Ambala Court, which had jurisdiction to try the same. The plaintiff claimed (1)
exclusion of the delay of one day in presenting the plaint in the Karnal Court
under section 4 and (ii) exclusion of the succeeding period spent in the Karnal
Court under section 14. The Supreme Court, relying on an earlier decision of
the Privy Council', held that section 4 is inapplicable Where the plaint is pre-

sented to a wrong court, and observed as under:

"If the plaintiff had ﬁled the suit in the trial court on March 2, 1959,
then certainly the suit would have been within time under section 4, as that
was the propec Court in which the suit should have been ﬁled. As the
Karma] Court had no jurisdiction to entertain the plaint, it was not the
proper Court. The fact that the plaintiff would be entitled to take advantage
of the provisions of section 14 of the Act would not, in any way, affect the
question whether the suit was ﬁled within the time as provided in section
4 in the Kamal -Court. Section 14 of the Act only provided for the exclusion
of the time during which the plaintiff has been prosecuting with due dili-
gence another civil proceeding against the defendant, where the proceeding
is founded upon the sums CZIUSS of action and is prosecuted in good faith
in a court which, from defect of ju11'sdiotion'or other cause of a like nature
is unable to entertain it. Even if the plaintiff was entitled to get an exclusion
of the -time during which he was prosecuting the suit in the Kama] and
Panipat Courts, the suit would not be within time, as the ﬁling of the suit

, in the Kama] Court was beyond the period of limitation".

/ 14.3. A strict' interpretation to the effect that nothing more than the exact Madras case.
period during which the suit was pending in a Court which discovered that it
had no jurisdiction to try the same was given earlier in a Madras case'. The
last day of ﬁling the suit was 9-9-1918, which was a holiday. The plaint was
presented to a wrong court on 10-9-1918. It was returned on 23-1-1920 for

'Chief Justice of Calcutta High Court No. 602, dated 21st February, 1908: Chief Justice
L. Jenkins of Bombay High Court No. 2469. dated '18th December. 1907; District Judge,
Dacca No. 1982 dated 5th December, 1907.

"'I.L.R. 29 Bom 225; 6 W.R.C.R. 184: l.L.R. 10 Cal 86; I.L.R 23 Cal 821; ILR 22 Mad
494;'I.L.R. 10 Born. 603: I.L.R. 22 All. 248. -

3Amar Chand Irani v. Union of India, A.I.R. 1973 SC. 373; 1973) l S.C.C. D115.

'Maq.buI Ahmed V. Pratap Narain Singh, AJR. 1935 P.C. 8 ' I.A. 80.

-'Govindasami Padayachi v. R. Sami Padayachi, A.I.R. am ﬁnd. 114(2), 115, 119. .

6-14 M ofLJ & CA/NDI83

Nagpur cue. .

Lahore case.

Need for
amendment.

Explanation
to be

. 'inserted.

Appeals.

89TH REPORT or LA\V CO.V1MN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l4----SeeIinn 14- V-Time taken in infmcnmus legal proceedings.)

presentation to thelproper Court and was re-presented on 26-1-1920. So far as

the period from 10-9-1918 to 26-1-1920 was concerned, section 14 was held to be
applicable and the period from 24-1-1920 to 26-1-1920 was held to be covered
by section 4 of' the Act. But the one day between 9-9-1918 and 10-9-1918 could
not be excluded, either under section 4 or under section 14 and hence the suit
was held to be time-barred. The inapplicability of section in such cases has been
reiterated by that High Court,'-9 'n subsequent 'decisions.

14.4. A Nagpur case" has followed the majority trend in holding that section
4 of the Limitation Act cannot refer to other Courts in which an unsuccessful.
attempt at institution of a suit was made during the summer vacation when the
Court was closed. ' However, in a later case', this ruling was distinguished and
it was held that section 4, which by itself excludes no time, can be tacked on to
section 14 of the "Limitation Act.

14.5. The inapplicability of section 4 to such cases has been the view in
Lahore5 also.

14.6. In a judgment of the Bombay High Court" we have the following obser-
vations: '

"Clearly the plaintiff is entitled to take advantage of those days during
which the ﬁrst Court was closed for the vacation, and the computation should
be made in the same way as if the second Court had been closed for the
vacation."

14.7. Having considered that matter at some length we are of the view that
the situation as in the Supreme Court» case7 requires to be remedied, We take the

view that where a plaintilf,'ﬁling a suit in a_Court without jurisdiction on a day_

next following the day when the limitation period expired because the earlier
.day was dies non, ﬁnds himself denied the beneﬁt of section 4, hardship is bound
to result. If the principle of section 4 is that a plaintiff or applicant should not
'be penalised merely because the day on which he should have _ﬁled the plaint
or application in court was a court holiday, there is no reason why the principle
should not be extended to the situation when the plaintitf bona fide ﬁles the
plaint in a Court which later on discovers that it has no jurisdiction' to try the
suit.

14.8. We therefore recommend that a suitable Explanation should be added
to section 4, on the point discussed above.'

14.9. Another question relating to 'the scope of section 14 pertains to the
nature of the proceedings covered by the section.- Section 14 speaks of computa-
tion of the period of limitation for any' "suit", and in view of the deﬁnition of
the word 'suit' in section 2(1). the section does not apply to appeals.

'Jayarama Aiyar v. S. Rajheopalun, A.I.R. 1965 Mad. 459.

2Ramdchandra [yer v. Amzam'alaI'. A.I.R. 1968 Mad. 103. 105.'

3Wamanrao V. Umrao, A.I.R. 1937 Nag. 215. 215, 216: l.L.R. 1937 Nag. 217.
'Chudamansao v. Ramkumar, 'A.I.R. 1948 Nag. 15. '

5Dharaman Ram V. Ganga Ram. A.I.R. 1929 Lah. 425.

°Basayanappa v. Krislmadas, A.I.R. 19.21 Bom. 379, 380.

' 7Amar Cha/id Irani V. Union of India, A.I.R. 1973 S.C. 373; (1973) 1 S.C.C. 115 [Para
14.2, supra] '

'See para -14.23, infra: proposed section 4, Explanation II.

89TH REPORT 05 LAW COMMN. or INDIA ON rHE.L1M1rA1'1oN ACT, 1963

(Chapter l4----Section l4~--Time taken in infructuous legal proceedings.)

14.10. However, several decisions hold that even though section '14 has no
application to appeals which are governed by section .5. the principles of section
- 14 will apply even to proceedings in appeal.' '

In a Saurashtra case," the High Court relied on three Privy Council rulings
on the subject'''-'-5 and summarised the result of these cases thus.

"These three Privy Council rulings seeni to lay down thatalthough
section 14 of the Limitation Act is not directly applicable lo appeals, the
principles underlying it on grounds of equity should be applied to appeals in
considering an application under section 5 of the Limitation Act. The exis-
tence of circumstances contemplated by section 14 has consequently been
regarded as a ground for excusing the delay caused by the wrong proceed-
_ ings. and a sufficient cause for the delay within the meaning of section 5
of the Limitation Act, it being assumed that the party would be deemed
to have acted with reasonable diligence where such circumstances existed."

14.1l.[A. few other cases on the subjects also take the same view.''-3

14.12. No doubt, even though section 14 does not apply to appeals, invoking Need to
the provisions of section 5 may in. practice solve the hardship that would other-gﬁgfgn 14_
wise result" We, are, however, of the view that a right should be given to an to appeals.
appellant to exclude the time taken in proceedings borta ﬁde in a court without '
in/risdiction, rather than leaving the matter to the discretion of the court under

2 section 5 to be exercised for "sufficient cause". While ' terpreting the expression

"suﬂicient cause," the courts may take conﬂicting-v_' s which appear to be
worth avoiding on such matters.

A'We, therefore, recommend the extension of section' 14 to appeals by express
phraseologym. '

' 14.13. When the plaint is returned and the plaintiﬁ is required to undertake Time taken
some journey to present the plaint to the proper court, the question may arise in l°""'°V'
whether the time taken, in such a journey should also count for the purposes of
section 14. It has been held in an Allahabad case," that reasonable ﬁme spent for
going to place of proper court can be excluded but if the plaintiif falls ill.after the
plaint was returned, the period of his illness can, in no case, be excused to condone
the delay. We are of the view that in a country as diverse as ours, with means of
communications not always satisfactory, a plaintilf or applicant is bound to take
some time in performing the physical act of carrying the plaint from the court
which pronounces want of jurisdiction, to the proper court. The period spent in
performing this physical process would depend upon the distance between these
A [two courts, but it' cannot be gainsaid that some time is bound to be spent in this
1*: ioumey.; -Consequently, we recommend that the Explanation to section 14 should

be amended suitably for the purpose."

'Subedar Baman v. Mt. Masti, A.I.R. 1960 H.P. 14.
38411' Hirubai v. Girdhar Keshav, A.I.R. 1962 Sau. 20.
3Brij Indar Singh v. Kanshi Ram, (1915?) I.L.R. 45 Cal, 94.

'Sunderbai V. Collector of Belgaum, A.I.R. 1918 RC. 135.

5Rajendra Bahadur Singh v. Rajeshwar Bali/A.I.R. I937 P.C. 276.
'Munshi Ram V. Raghubir Ch-anal, A.I.R. 1953 H.P. 15.

7BaIbir Chand v. Gapal Chand, A.I.R. 1954 PEPSU 126.

8Anami Ram v_ Mt. Chaaduri, A.I.R. 1956 Assam 63. -

'Ram Lal v. Rewa Coalﬁelds, A.I.R. 1962 S.C. 361, 365.

"See para 14.23 Infra Section 14 (2A) as proposed.
"Rihkab Bass v. Smt. Chandra, A.I.R. 1971 All;23.4.-

"See para.14.23, infra Explanation to Section 14, C'laLBé,(8.)(i_i) as proposed.

Arbitmtions.

Time taken
in copies.

Conllict
of views.

89TH REPORT or LAW COMMN. or -mom ON THE LIMITATION ACT, 1963

(Chapter l4--Section l4--Time taken in; infructuous legal proceedings.)

, 14.14. At this stage, it is proper to"~refer to a point concerning the appli-/'
cability of section 14 to arbitration proceedings. The question is whether the
beneﬁt of section 14 can be claimed where the earlier infructuous proceedings took
placelbefore arbitrators, and not before courts. In this context, one has to make"
a distinction between (i) arbitrations governed by the Arbitration Act, 1940 and
(ii)l}arbit'rations not governed by that Act. As regards the ﬁrst category of arbi-
trations, section 37(5) of the Arbitration Act. 1940 has made a suitable provi--e
sion for the exclusion of time taken in an arbitration. As regards the second
category of arbitrations, though the Arbitration Act, 1940 will naturally be in-
applicable, it seems from a fairly recent judgment of the Allahabad High Court'
that the beneﬁt of section 14 can be availed of in such arbitrations. It also appears
that before the incorporation of the relevant provisions in the 'Arbitration law,"
there were other rulings which regarded section 14 as applicable to the arbitration.'-'
We do not, of course, consider it necessary to suggest any express amendment
on the above point.

14.15. In connection withsection 14 it is of interest to refer to one suggestion
which was made by a District Judge' in 1907. He suggested the addition of the
following further clause to section 14:---- '

"(3) The time requisite for' obtaining a copy of the decree or order in
the cases mentioned in clauses (1) and (2) and' the time which the plaintiff
or the applicant prosecuting the suits or application with due diligence
requires in going to the proper court. shall be excluded."

The suggestion falls' in-two parts: (i) exclusion of the time spent in obtaining
copies of the ﬁnal order of the court, where the plaintiff or the applicant was
wrongly prosecuting his claim; (ii) 'exclusionof the time required by the plaintilf
or the applicant in physically performing the journey from the wrong court to the
proper court. .

The second part deals with .1 point that has been already attended to.' The
ﬁrst point is dealt with below.

14.16. 'An examination of the case law discloses that there is some conﬂict
on the subject. For example. an Andhra Pradesh case' takes the view that the
time occupied in obtaining certiﬁed copies of the judgment, and in taking other
indispensable and necessary steps preparatory to an initiation of the proceedings,
in' a court which ultimately proved to be 'fruitless, should also be regarded as
the time during which the plaintiff has been prosecuting the civil proceedings.

. 14.17. The Patna High Court has, however, taken a contrary view on the
subject.' V . -

"There is nothing in section 14(1) which can justif the View that the
taken by a party in taking steps for invoking the aid of the Court should also be
excluded while computing the period of limitation. Explanation I to section 14

'Chaman Lal v. State of U.P.,,A.I.R. 1980 All. 308.

"See also State of U.P. V. Satya Prakash, 1978 All. L.J. 564.

3Ramdutt Ramkissandass V. E. D. Sassoon." (1929) 56 Ind. App. 128 (RC).

'Abdul Rahim v. Ojamshee, (1930) I.L.R. 56 Cal. 139. . . '
5District- Judge, Rajshahi (Eastern Bengal & Assam); 'National Archives Papers relat-

ing to the Limitation Act of 1907. Paper No. 2704G., dated 7-l2-1907.

'Para 14.13, supra. . --

7TiruIna7-eddi v. State of A.P.. A.I.R. 1965 A-P. 388 (F,B.)

3Narain Dasv v. Banarsi Lal, A.I.R. 1970 P83.' 50. _\

89TH REPORT or LAW COMMN. or INDIA ON THE LlMl1'A'ﬂ0N ACT, 1963 37

(Chapter l4----Secti0n l4~--~Time taken in infructuous legal proceedings.)

clearly provides that in excluding the time during which a former suit or appli-
cation was pending, the day on which a former suit or application was pending,
the day onwhich the suit or application was instituted or n1a°de, and the day on
whidn the proceedings therein ended, shall both be counted. Section 14 has to be
read as a whole along with the E.-\.piiiI'.aiiOl'l to that section. It is true that in
section 14(1), the word 'prosecution' has been mentioned, but in Explanation I
the word 'pending' has been mentioned. The position thus is that reading sec-
tion l4(l) along with Explanation I, it is the pendency of a Civilproceeding,
either in a Court of ﬁrst instance or in a Court of appeal, which has to ascertain
the period during which the proceeding actually remained pending".

In an earlier Patna case.' Fasl Ali 1. had also propounded the view that
the only period that the plaintiff is entitled to exclude while computing the
period of limitation is the period during which the plaint was pending in the
Court retiirning the plaint. ~

14.18. Ailjudgnlcni of the Mudliya Pradesli High Court' allowed, liovrew-1', the
_time requisite for obtaining certified copies for ﬁling appeal as the period which
counted in favour of the plaintiff.

14.19. Still earlier, a single jucge of the Lahore Court?' said hel'd_, that the
time spent in challenging the soundness of the order of the court of ﬁrit instance
inreturning the plaint was also excluded under section 14 of the Limitation Act.

14.20. Upon a review of the conﬂict of decisions, we are of the view that to No changg

_ 1 allow maximum latitude to the plaintiff or applicant by allowing'hirn exclusion"°°d°d'
- 1 (from the prescribed period) of time spent in obtaining copies of orders, decrees

'or arguments or challenging in higher courtsthe order of want of jurisdiction "
may encourage dilatory tactics and hence no change of law is needed on this

point. . ~

14.21'. Sometimes the Court returning the plaint passes an order permitting Direction by
the plaintiﬁ" to file thereturned plaint in the proper court in an extended period' "'§u:t'"""'
after expressing an opinion that a fraud had been perpetrated entitling the plaintiff '
to the beneﬁt of section 14 of the Act. This: however, is beyond the powers of the
court and it has been held in an Allahabad case" that whether the plaintiff was
entitled to the beneﬁt of section 14 of the Limitation Act is not to be decided by
the court directing the return of the plaint: The point, of course, does not neces-
sitate any changein the law. . f /

14.22. It sometimes happens that the plaintiff _fiied successive petitions to a Successive
wrong court and seeks to plead the beneﬁt of section, 14(2). The period forming petitions.
the intervals between successive petitions (when the. party merely stood by, allow-_
inglimitation to run) cannot, however, be considered as a period of "prosecuting"
proceedings, within the ambit of the rule.'

No change, of course, is needed on this point.

'Pirm Jiwarirrim Ramcliandra V. Jag/w':iaIJ1 Suhu, A.I._R. 1937 Pat. 496.

' '-'Mair. Duliyabai v. Vilayatalli A.I.R. 1959 M.P. 271,. ,
"Gurdit Singh v. More Singli, A.l.R.. I939 Lah. 47.
'Puraineswara K imm v. Vasudcva K urun, l.L.R. (1964) Kerala 625.
"Raitject Singli V. Bind Balmdur, AJR. 1975 All. 547. p
'S. V. Krishnicr V. A.R. Ramclmridra, A.I.R. 1961 Mad. -197. ' _

_ I

38 89m REPORT or LAW COMMN. 015 INDIA ON THE LIMITATION ACT, 1963

(Chapter l4----Secti0n 14----Time taken in infructuous legal proceedings.)
(Chapter l5A----Section 15 : Exclusion 61' Time in certain other~cases.)

geczttréliggziﬁigns 14.23. In the light of the above discussion, recommend that amendments
secﬁ°ns.\14 ' on the following Tmes should be eliected In sections 14 and 4.
and 4' 'l (i) Section 14 should be amended as under:--
Sub-sections (1) and (2) of section 14 as they are.
New Subsection (2A) should be 'inserted in section 14 as under:--'

"(2A) In computing the period of limitation for any appeal, the time
during which the appellant has been prosecuting with due dili-
gence another civil proceeding, whether in a court of ﬁrst instance
or appeal or revision against the same partyjor 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,"'

.(ii) The Explanation should be revised as under in section 14:---
"Explanation.----For the purposes 'of, this section--

(a) in excluding the time during which a former civil proceeding was
pending-

(i) the day on which that proceeding was instituted. and the day
on which it ended shall both be counted; '

(ii) the time reasonably necessary for a plaintiff or an applicant' or h

an appellant to perform the journey fromythe place where the

former civil proceeding was pending to the place where the '

proper court is situated shall be deemed to be time during which
the former civil proceeding was pending?'

[Clauses (b) and (c) of.the Explanation as they are at present].

(iii) Section 4 should be amended by adding thereto another Expla-
nation (after re-numbefing the present Explanation as Explana-
tion I). The added Explanation will read as under:----

"Explanation II.---For the purposes of this section, the word

'court' includes a court which, from defect of jurisdiction or other"

cause of a like nature, is' unable to entertain the suit, appeal or
application, as the case may be, provided the suit, appeal or appli-
cation was prosecuted in good faith. in that court."

CHAPTER' 15
SECTION 15 : EXCLUSION or TIME IN CERTAIN OTHER CASES '

SectiorI_15- 15.1. There are certain other cases, not covered by the provisions so far

{":"m:;"is;°n °f discussed, where though the cause ofaction may be ripe, circumstances render

Cihfalin the institution of legal proceedings legally impossible or diﬂicult for a variety
' 0 C!' C3505.

of reasons. Taking due note of such impossibility, the Act in Section 15, makes
. a suitable provision for the exclusion_ of time in ﬁve sub-sections, each addres-
sed to a different situation but each 'more or less deriving its justiﬁcation from
impossibility or dilﬁcultyh of the nature mentoned above. l

'See para 14.12, supra.
"See para 14.13, supra.
"See para 14.2 to 14.8, supra.

89TH REPORT or LAW comrm. or INDIA on THE LIMITATION ACT. 1963

(Chapter l5'--So¢7tfnn l5--+Ex(-fusion 01' Time in certain other cases.)

Subsection (1) of section 15 concerns itself with the case where the
institution of a suit or execution of a decree has been stayed by an injunction
or order. The'period during which the injunction or order continued is to be
excluded in computing the period of limitation for the suit or for an applica-
tion for execution of the decree in respect of which the injunction or order was
issued. ' e

In sub-section (2), we have the case where, before the institution of a
suit, notice is required to be given or the previous consent or sanction of the
Government or other authority is required, by law. The period' (if suchnotice
(if given) or the time required fonobtaining such consent or sanction is exclud-
ed in computing the periodof limitation for such suit.

Under sub-section (3), where a receiver or liquidator is appointed in in-
solvency or liquidation proceedings, the period beginning with institution of such
proceeding and ending with expiry of three months from appointment of the re-
ceiver or liquidator is excluded, in computing the period of limitation forany suit'
or application for execution of a decree by the receiver or liquidator.

Sub-section (4) provides that where a purchaser 'at an execution sale sues
for possession of the property sold, the time during a proceeding to set aside
the sale has been prosecuted shall be excluded in computing the period of limita-

'tion for such suit.

Finally--~a_nd this is the most important prov\ision~sub-section (5) of section

I _IS deals with the defendant's absence from India, in the following temis:--~

"(5) In computing the period of limitationvfor any suit the time during
which the defendant has been absent from India and from the territories
outside India under the administrationiof the Central Government, shall be
excluded."

Such pointsiof detail as require to be considered .in connectionwith the
section are dealt with below. sub-section wise.

15.2 Section 15(1), inter alia, grants exclusion of time when the execution Section 15(1)-
ofta decree has been stayed by an injunction or order; the words 'inj\inction':t"!-':E,r1':'e'f"""'f
and 'order', as occurring in the section, have been interpreted dilferently by

different courts in the context of attachment of a decree. In a Punjab 'case,' an

objection to the attachment of a house was preferred under section 47 of the

Code of Civil Procedure 1908. An order was passed to the effect that' the

person entitled objecting was to stay in that house during her lifetime, and

that» the attached property could not be sold in execution, but that the decretal

amount remained a charge on that property. It was held that this order did not 7

operate to "stay" the execution proceedings during the lifetime 'of the objector,

and in no way affected the right of the decree-holder to obtain satisfaction by

'A attaching other property of the judgment-debtor. Consequently, section 15 was

held to have no applicability to the case.

However, in Calcutta, 'an attachment of a decree under Order 21, Rule 53
of the Code of Civil Procedure 1908 was held to operate as a stay of the execu-
tion", though a contrary view has been taken by 'the Andhra Pradesh High Court.'

1Ja.s'wan! Rm' v. Domrmal. A.I.R. 1968 Punjab 509. ' * '
"Khan Shashi Debi v. Chandrika Prasad, A.l.R; 19i6- Cal. 620, See cases cited

in para' 15.3, infra.

'K. Ramayya v. K. Nagesewararao, A.I.R. 1969 A.l/3. 250, 256.

Conﬂict
settled by
Supreme
Court-

' need for

codifying the
present
position.

Principle
accepted in
1851 case.

Hardship-
co-contractors.

89TH REPORT qr LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963

' (Chapter l5~Sc('tion l5v--Exclusi0n of Time in certain other cases.)

153. By an unreported decision of the Supreme Court,' it is now settled
that an attachment of a decree under Order 21, Rule 53 of the Code of Civil
Procedure, 1908, does not amount to "stay" within the meaning of section 15(1).

Having regard to the fact that the judgment of the Supreme Court referred '

to above" does not _appear in the series of law reports usually consulted, we
consider it desirable that section 15 should contain a speciﬁc provision in this'
regard, so as to avoid controversy in future. A

Such a clariﬁcation would be faithfull to be legal position as it was under-

stood by the majority of the High Courtsi-" ' even before the Supreme Court
Judgment.'

15.4. Under section 15(5). the time during which the defendant has been
absent from India and from the territories outside India under the administration
of the Central Government. is excluded in computing the period of limitation
for any suit against such a defendant. As long back as in 1851, an action was

"brought in the Supreme Court of Judicature?' at Bombay for conversion of cer-

, tain chests of opium. Upon a defence being raised that the suit was barred

by limitation, as having. been brought beyond six years of the accrual of cause

of action, the plaintiff alleged that the defendant was residing outside the juris-.

diction of the Supreme Court of Judicature at Bombay and beyond the \territory
subject to the Government of the East India Company and, therefore, the suit
was not barred. The Supreme Court upheld the plaintiff's contention on the
basis of the"British statutes then in force in the country". i

15.5. The word "defendant" in section 15(5) has given rise to certain pro'-
blems, in as much as the section does not indicate in so many words as to
what a plaintiff should do when he is to ﬁlea suit against several defendants some
of whom are absent from India. In a suit on the original side of the Calcutta'
High Court", the plaintiff sought to take advantage of this sub-section against
an absent defendant after exhausting his remedy of ﬁling a suit against his col
promisor in a promisory note executed by the absent defendant as well as others.

This was turned down, but Garth C.J. observed 'as follows about the inequity
of the provisions: ' ~

"It is true that the rule upon which I am acting may possibly lead to some
hardship in cases when one for more of several co-contractors is out of the
jurisdiction," and the plaintiff. if he waits for his return, would be barred by
the Statute of Limitation. But this is an injustice" which the legistlatute. if they

so pleased, could easily remedy. and which has been. in fact. remedied in '

England by the Statute of 19 and 20 Vict.. c. 97."

His brother on theBench Markby J.. pointed o1It how the rule had been
modiﬁed in England: ' s

"The rule laid down by Parke.'B., in King ~v. Hoare" is very likely correct

in theory. It is at any nate "identical, or nearly identical. with the strict rule of the '

1Shantaran/'andas v. D. Mixramal. (1976) Unreported Judgment S.C. 232.
3Shant'a-ranijandas v. D. Misramal, ( 1976) Unreported Judgement SC. 232.
3C'hanbasappa v. Holibasappa, A.I.R. l924.Bom. 383. 384. ,

'Saroj Ranjan v. Ja_v Durgn. A.I.R. 1934 CaiT'140. 141.

5FI'rm Deochand Panualal v. Shubhakaran, A.I.R. 1916 Cal. 620.

"Kiran Shashi Debi V. Chandrika Prasad, A.I.R. 1916 Cal. 620.

"For the draft. see para 15.19 infra section 15, Explanation I. as proposed.
9Ruckmabo_\'ee V. Lulloo/ihoy Molichand. (1851-1855) 5 M.I.A. 234 (_P.C.).'
9Statute 21 James I Ch. 15 and,4 Anne. Ch. 16. . _ .
_"'Hemendro Coomar, Mullick v. Raﬁandre La! Moonshee. (1878) I.L.R. 3 Cal. 353, 362.»
"King v. Hoare (1844) 14 LJ. Est.§29 :£6__"I 694, 702, 703, 704.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 15----Secti0n l5--~Exc'lui.'i0n of Time in certain other cases.)

ancient Roman law. But it must be borne in mind that this rule was abolished
in the Roman law 1300 years ago, and has been since repudiated in America
and everywhere in Europe, except in England. Even in England, until the deci-
sion of King V. Hoare' it was very doubtful whether the rule prevailed or not in'
joint contract; whilst since that time one learned Judge (Sir James Knight Bruce)
has spoken of the rule in strong terms of disapprobation (27 L.J. Bank, 29). Lord
' Mansﬁeld also expressed the opinion in Rice v. Shute that all contracts with
partners were joint and several, and the rule in King v. Hoare has been since
modiﬁed by Statute in England. The 19 and 20 Vict., C. 97, Section 11 directs
that the period of limitation as to joint debtors shall run notwithstanding that
some are beyond seas but expressly provides that the creditor shall not be
barred as against those out of the jurisdiction by judgment recovered against
those who remain within it. If the rule laid down in King v. Home be combined
with the law of limitation here. which is very strict, it is by no means clear
.that a creditor might not very often be left to the choice between a remedy
against an insolvent debtor and having his debt barred."

15.6. When the draft of the Indian Limitation Act. 1908 was circulated comment,
for comments, the injustice arising out of such an interpretation formed the sub-
ject matter of the comments of one Mr. M. Gupta:----

"Section 13 [present section 15(5)] of the Act might be with advantage amend-
ed so as to provide for the case where some of the defendants have been absent
from British India. If on the grammatical construction of the section it is held_
to be applicable to a case where only someof the defendants have been absent
from British India, then it has been observed that if some of the joint debtors
who are within British territories are insolvent and the plaintiff waits for the

return for the absent defendants. he will often find himself altogether barred by
limitation"?

15.7. Dr. Whitley Stoekes in his Anglo-Indian Codes: has also made similar Comment.
observations. stokes.

15.8.' In England, section 11 of the 19 and 20 Vict., c. 97, had removed
the anomaly pointed out by the Calcutta High Court. The section reads:

"l1. Where such cause of action or suit with respect to which the
period of limitation is ﬁxed by the enactments aforesaid or any of them
lies against two or more joint debtors, the person or persons who shall be
entitled to the same shall not be entitled to any time within which to com-
mence and sue any such action or suit against any one or more of such joint
debtors who'shall not be beyond .the seas, at the time such cause of action

' or suit accrued, by reason only that some other one or more of such joint
debtors was or were at the time such cause of action accrued beyond' the
seas, and such person or persons so entitled as aforesaid shall not be barred
from commencing and suing any action or suit against the joint debtor or
joint debtors who was or were beyond seas at the time the cause of action

1King v. Hoare (1844) 14 LI. Et. 29 2 67 RR. 694, 702, 703, 704.
2M. Gupta, Barrister-at-Law, Hoshangabad. Annexure II to the ietter No. 2063, dated
19th December, 1901 from the Chief Secretary to the Chief Commissioner, Central Pro-
Einces to the Secretary to the Govt. of India, Legislative Department, National Archievol
le

' 3Stokes Anglo-Indian Codes (1888) Vol.2 page 950.
7-14 Mof IJ&cA1ND/83 '

Dr. Whitley '

42,

Law Com-
mission
Report on
Contract Act.

89rH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l5--SccIimI l5--Exclusi0n of Time in certain other cases.)

or suit accrued after his or their return from beyond seas, by reason only
that judgment was already recovered against any one or more of such joint
debtors who was not or were not beyond seas at the time aforesaid."

15.9. The difficulties raised by the Calcutta judgement, as well as by cases of
other'High Courts, were considered by the Law Commission in its Report on
the Contract Act, 1872' and we reproduce. below their observations from that

Report : --
\

"70. The Contract Act/treats all contracts as joint and several. The
necessary consequence is that it is not open to one promisor who is sued to
compel the promisee to sue others. There has, however, been considerable
divergence of opinion on the effect of a judgment obtained by the promisee
against one out of a number of promisors. In the words of the Federal
Courti, unlike English Law, the Indian Law makes a general liability joint
and several, in the absence of an agreement to the contrary. It'is. therefore,
open to the promisee to sue any one or some of the joint promisors and it is
no defence to such a suit that all the promisors should have been made
parties. We think that Strachey, C..I., correctly stated the law in Muhammad
Askari V. Radhe Ram" when he said:. The doctrine now rests not so much
on King V. Hoarv' as on the judgment of the Law Lords in Kendal] v. Hamil-
ton'. As explained in these judgments, the doctrine that there is in the
case of a joint contractia single cause of action which can only be once
sued on, is essentially based on the right of joint debtors in England to have
all their contractors joined as defendants in any suit to enforce the joint

obligation.

The right was in England enforceable before the Judicature Act by means
of a plea in abatement, and since the Judicature Acts by an application for
joinder which is determined on the same principles as those on which the plea
in abatement would formerly have been dealt with. In India that right of joint

debtors has been expressly excluded by section 43 of the Contract Act, and,'

therefore, the basis of the doctrine being. absent, the doctrine itself is inapplicable.
Cessanite ralione legis, cesswt ipsa lex." The result is that a decree obtained
against some of_ several joint promisors remaining unsatisﬁed ought not to be held
as a bar to a subsequent action against the other promisors. We recommend that

7" -

this result may be incorporated in the Act by.inserting a new section.

After making these observations, the Law Commission recommended' the
insertion of.a new section 44 A as follows in the Contract Act:---

"44 A. Effect of decree obtained against one promisor.----A rdecree

against any one or more of a number of joint promisors does not, if it has

' remained unsatisﬁed. and in the absence of express agreement to the contrary,
bar a subsequent suit against any one or more of_ the other promisors."

We reiterate the recommendation for amending the Contract" Act, quoted
above. Such an amendment would resolve the difficulty that at present arises
in the law of limitation. when only some of the defendants (joint promisors) have
been absent from India.

'Law Commission of India, 13th Report (Contract Act, l872),'pages 32-33.

Zlainarain V.' Suraimull, I949) 12 Fed, L]. 216, 225.

322 All. 307.

'King V. Hoare (1844) 153 BR. 206. 67 RR 694.

5(1879) 4 AC. 504. - .

622 All. 307 (311, 312). _

"Vide section 44A, Appendix I (of the 13th Report).

"Law Commission of India, '13th Report (Contract Act, 1872), App. 1. section 44A.

89TH REPORT or LAW CUMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 15-Section lS--E.tclusion of Time in certain other cases.)

15.10. Another point relating to section 15 is concerned gith cases where Ag.-rm in
the defendant had an agent in India. A Full Bench of the Calcutta High Courtlot
decided that section 13 of the Limitation Act, 1877 which excluded the time
during which 3. defendant had been absent from British India incomputing the
period of limitation for any suit applied even where, to the knowledge of the
plaintiff, the defendants, (partners in a ﬁrm), were during the period of their
absence, carrying on business in British India through an authorised agent who was
authorised to bring suits in India. The Full Bench overruled an earlier ease of

the same High' Court," and o"nserved:----

"In support of this contention the case of Harrington v. Gonesh Roy
is strongly relied on by the defendants. I doubt, however, whether, having
regard to the clear and precise language of section 13, that decision is well
founded, for it seems to me that, whatever may be the common sense of the
decision, it can only he arrived at by interpolating into the section words
that are not there, words to the effect that the time of absence is not to be
excluded if the defendants are, during the period of personal absence, repre-
sented by a duly constituted agent in British India. Although we have been
referred to the case of Hawkins V. Gathercolef as to the manner in which
statutes are to be construed, I do not see my way to put the construction
upon the section for which the defendantscontend; if we did so; I think we
should be rather legislating than adjudicating upon the section as it stands.
It may well be that it would be expedient, not to allow the time of absence
from British India to be excluded, if the defendants be carrying "on business
in British India, and be represented by a duly authorised agent during such
absence; but if this change is to bemade, it must be made by theLegislature.
Reading the language of section 13--a section be it remembered in a Limita-
tion Act, the provisions of which must be construed strictly, and which, when
set up as a defence, must not be extended to cases which are not strictly
within the enactment, whilst exceptions of an exemption from its operation
are to be construed leberally (see per Lord Cranworth in Boddan v. Morely,)'--
reading, I say, that section according to the ordinary signiﬁcance of the words
used, I think we are not warranted in holding that the section does not apply
to cases where the defendants are duringithexperiod of absence, carrying on
business in Biitish India through an aiithorised agent. In other words, I
do not see my way to getting over the clear and precise language of the
section, feeling as I do that the words of the section are too strong against
the view contended for by the defendants, and that we could only support
that view by the interpolation of words to the effect I have stated above."

15.11. The Full Bench ruling" based itself decision on the strict interpretation
'of the provisions of section 13 of the Limitation Act of 1877 (corresponding to
section 15 of the present Act). In Harrington's case,' the division bench had
held that section 13 of the 1877 Act did not apply to a case when to the know-
(ledge of the plaintiff, the defendant, though not residing in British India, is re-
presented by a duly constituted agent and moolchtar. Powerful arguments were
advanced to reverse the ﬁnding of the District Judge, who had held otherwise
and the court said:

"The Judge relies on section 13 of the Limitation Act, which provides
that 'in computing the period of limitation prescribed for any suit, the time
1Paorno Chunder Chose v. Sassoon. (1897) I.L.R. 25 Cal. 476 (F.B.).
2Harrington v. Gonesh Roy. (1884) I.L.R. 10 Cal. 440.
3Hawkins v. Gathercoie, (1856) 6 De G.M.&G-. 1. '

'Boddan v. Morcly, (1357) 1 De G & Jones l{23).
"Harrington v. Gonesh Ray, (1884) I.L.R. 10 Cal. 440, 442.

Aspect of
conﬂict of
laws.

Both parties
residing

abroad.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 15--Secti0n l5----Exclusi0f1 of Time in certain other cases.)

during whi' the defendant has been absent from British India shall be ex-
cluded'. He goes on to say 'admittedly Mr. Harrington,' the defendant in
this case, 'has been so absent from the date of dispossession till now'. It
seems, however, that Mr. Harrington is 'represented in this country by Mr.
Crowdy, who, in the first instance, was made a defendant in the case as
Manager and Mookhtar of the Bhugwanpur Factory.

If the Judges interpretation of section 13 were correct, there would be
no limitation at all as against a proprietor residing in England, although
suits might be conducted for and against him through his agent in this coun-
try. It is impossible to believe that this was the intention of the law."

15.12. A reading of the judgements referred to above shows that the judges
in both the benches were in unison that it would be expedient not to allow the
time of absence from British India to be excluded under section 15(5), if the
defendant is represented by a duly authorised agent during such absence. The
difference between the approaches of the two benches was that while the Full
Bench in the later ruling felt hamstrung by the language of the section and left
it to the legislature to amend it, the Division Bench in the earlier ruling sought
to put an interpretation on that section which in their opinion accords with the
true intention of the legislature".

15.13. Whatever way one looks at it, seems to us most incogruent--consi-
dering the fact that more and more of non-residents are cafrying on business
in India through their authorised agents--that the non-residence in India of such
a defendant himself should ensure to-the advantage of a plaintiff, who knows
that the defendant could be served through a duly authorised agent in India.'

15.14. It could as well happen that a judgment against the defendant, ope-
rating through an agent, would be inconformity with the tenets of private inter-

' national law 'also. By appointing an agent to use or defend, the absentee defen-

dant has, in a sense, submitted to the jurisdiction of the court where the agent
is working for gain. However, we need not express any ﬁrm view on _this point.
This.aspect in any case is not directly material to the present issue.

In View of the above discussion it is desirable that a suitable Explanatioﬁ'
should be added to section 15(5) on the above point.'

15.15. We now deal with another situation to which section 15(5) applies.
Considering the number of Indians going abroad for trade, commerce or seek-.
ing livelihood, it could as well happen that the "plaintiff and the defendant were
both residing outside India during the relevant period and the plaintiff could
have obtained redress without much diﬂiculty, in the court of that country where
they were so residing. In such a case, it would be unjust to allow such a plain-
tilf the beneﬁt of exclusion of the period during which the defendant was resid-
ing outside India, when the plaintiff himself was also during the same period,
outside India and could have sued the defendant in the foreign country.

15.16. A situation of the nature contemplated above is not merely hypothe-
ticai; such a case' did occur more than/'a century ago in the then North West

Provinces and was decided under the Limitation Act of 1859.

'Cf. Sayaji Rao v. Madhav-Ran A.I.R. 1929 Born. 14, 20.
2See para 15, 19, infra; section 15, Explanation II, as proposed.
3Mahomed Itluseeh-ood-deen Khan V. Clara Jane Museelrood-dean, 2 N.W.P.H.C.R.

173 (case under Limitation Act of 1859)----quoted in Muthukanni v. Andappa, A.I.R. 1955
Mad. 96 (F.B.). _ _ ; .

89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963
(Chapter l5---Section l5--Exclusiort of Time in certain other cases.)

This was a suit brought in by a wife against her husband for the recovery
of the amount due to her on account of dower payable under a written agreement
and for maintenance and other reliefs. The parties were married in England in
1863, according to Mohammadan law. The defendant--husband left England
and eventually returned to India in December, 1865, only to be followed by
his wife in June, 1869, who, immediately, upon arrival, instituted the suit in
India.

It was argued by the wife-plaintiff; that she was entitled to rely on the pro-
visions of section 13 of the Limitation Act, 1859 [corresponding to present sec-
tion 15(5)] and to exclude, from the computation of the periods of limitation .
applicable to her several claims, the time during which the defendant husband
was absent from British India. This contention was countered by the husband-
defendant, according to whom, when both the parties were living in England, to
put a construction on section 13 and to_ allow one of the parties to take advan-
tage of the absence of the other party from British India would lead to extremely
inconvenient results. Repelling the defendant's argument, the High Court said:

"It is true that such a construction may lead to very inconvenient results.'
A person may resides out of India for years, and according to the law of
limitation of the country in which he resides, the remedy against him in
respect of a cause of action of the nature of a personal action may be lost,
yet, on his coming to India, it will revive. We can hardly conceive that
this was the intention of the legislature. It, would seem that in the Act no
pravision has been made for cases in which the cause of action arises in a
foreign country. or in which, at the time the cause of action accrues, both
parties are residing in one and the same foreign country possessing tribu-
nals to which they might have recourses; at the same time, it is to be --
, remembered that the law of limitation is a law which bars the remedy and
does not destroy the right, and therefore, if by any of its sections we ﬁnd
indulgence, shown to suitors, we are bound to give full eﬁect to the lan-
guage in which that indulgence\/is conceded." '

15.17. The judgment referred to above raises two important issues: ﬁrst,Qucsﬁom
whether the Indian courts should entertain a suit by a person based on a cause-raised by
of action arising in a foreign country when his remedy to obtain redress in the "R l"d3""°"'-
foreign court would have been barred on account of the law governing actions
in that foreign country? Secondly, whether the exclusion of time allowable under
section 15(5) should also be granted even if the plaintiff was residing in the same
foreign country where the defendant was residing during the relevant period?

As regards the ﬁrst point, it falls within the ambit' of section 11. However,

7 the second limb of the suggestion in the judgment, namely, that the beneﬁt of

section 15(5) should not be available to the plaintiff who, during the relevant
time, was also residing in the same foreign country where the defendant also
resided, deserves acceptance in our opinion. A plaintiff who could, but did
not choose to, resort to the court of competent jurisdiction in the foreign coun-
try where he was then residing should not in an Indian court be allowed the
advantage of an extension of limitation period. Accordingly, we recommend
that an exception should be engrafted on section 15(5) on the subject?

15.18. The draftsman of section 15(5) may not have focussed his attention on Fr t
the possibility of a defendant ﬂitting across the globe more than once during the mp°§"§,"

period of limitation. But scientiﬁc advances in jet propulsion have made such £3335;
~ CS.

'Emphasis added. _
2See discussion as to section 1], supra. (Chapter 11).
' 'See para 15, 19 infra Section 15(5), Exception as proposed. I

Recommendation

relating to
section 15.

._"

Section 16-
Effect of

death on or

before the
accrual of

the right to

5116'.

89m REPORT or LAW COMMN. or INDIA ON THE LIMKTATION ACT i963

(Chapter 15----Section l5~--Exclusion of Time in certain other cases.) I
(Chapter 16~Scction l6--E/feet of Death on Limitation.)

frequent trips possible. The courts have dealt with such a situation and given
to the plaintitl' the right to take into account all such periods during which the
defendant was absent.'-3 This view seems to be in conformity with the intend-

ment of sub-section (5), and we do not recommend any amendment of the sub-
section for this purpose. \

15.19. In the light of the above discussion, we recommend the 'following
amendments to the law on the topics dealt with in section l5:-- '

(i) An exception should be inserted below section l5(_5) of the Limitation
Act as under:---- ' '

"Exccpti0n.------N0thing in sub-section (5) shall apply to a period subse-
quent to the date on which the cause of action arises, being a period during
which----

(a) both the parties were residing in one and the same foreign country
and the plaintiff was aware of the residence of the defendant; and

(b) there were, in the foreign country, properly constituted courts or
tribunals to which the parties had, or could have had, recourse for
enforcing the cause of action.""'

(ii) The following Explanations should be added to section 15 of the Limi-
tation Act:

"Explanation I.-«The attachment of a decree under rule 53 of Order
X X] in the First Schedule to the Code of Civil Procedure, 1908' docs not
A amount to a stay of execution of the decree within the meaning of sub--scc-
, tion (1)'. '

. "Explanation Il.----~For the purposes of this section, a defendant shall
n0t be deemed to have been absent from India during any period during
which he had, to the knowledge of the plaintiﬂ, a duly constitute'd' agent' in
India, authorised to institute and defend legal proceedings on his behalf in
India.""'

(iii) Amendment of the Indian Contract Act, 1872 by the insertion of new
section 44A in that Act, may also be carried out, for resolving the controversy
relating to decree against one of several joint promisors.'

CHAPTER 16 _
SECTION 16 : EFFECT OF DEATH ON LIMITATION '

16.1. The general principle is that when a right to sue accrues to a person
during his lifetime, his death thereafter does not suspend the running of limita-
tion. The reason is, that time commences to run at once (in general) and,' as the
Act puts it, once time has commenced to run, no subsequent inability to sue stops
or suspends its running. '

'Mohammad Sulaiman Rowther V. N. K. A". Mohammad Ibrahim. (1967) 2 M.L.J. 483.

'-'Ismailji Haji Ha/imbhai v. Ismail Abdul Kadar, A.I.R. 1921 Born. 460, 461 : I.L.R, 45 .

Born. 1228.

"See para 15.17, supra.

'See para 15.3, supra.

-'See para 15.14, supra.

"See para 15.9, supra.

"Section 9, Limitation Act, 1963.

the section to such cases would tend to create insecuritv of title.'

. with the operation of this rule.

89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 16~SecIion l6--E[7'ect of Death on Limitation.)

However, where a right to sue accrues for the ﬁrst time after the death of a
person- i.e. if a person dies before the right to _sue accrues, there must be some
person capable of representing his estate-when the right to sue accrues. Where
the right to sue accrues on the death of a person (i.e. where the death and accrual
of the cause of' action are simultaneous), the same is the position. Dealing with
these two situations, section 16(1) of the Act provides that the period of limita-
tion shall be computed from the time when there is a lega_l representative of the
deceased capable of instituting the suit or application in question..

While section 16(1) deals with the death of the would-be plaintiff, section 16(2)
applies the same principle to the case of the death of a person liable to be sued----
the would-be defendant. Where his death takes place before, or simultaneously
with, the accrual of the cause of action, the period of limitation is to be comput-
ed from the time when there is a legal representative of -the deceased against whom
the plaintiff may institute :1 suit or make an application for enforcing the cause
of action in question.

However, section 16(3) provides that nothing in sub-section (1) or sub-sec-
tion (2) applies-- 1 "

(a) to suit to/ enforce rights of pre-emption, or

(b) to suits for the possession of an immovable property or of a hereditary
office.

The exception takes out these suits, presumably because the application of
Moreover,
the period of limitation for suits for immovable property is generally twelve
years, and no hardship would be caused by the non--existencc of a legal repre-
sentative for some period. In the case of suits 'for pre-emption, though the
period is not so long, there is the general rule that the demand for pre-emption
must be made quickly and the legislature has not considered it proper to interfere
It may be mentioned that the same approach
has been shown while dealing with the case of legal disability. The special pro-
visions? enacted to give extra time to persons under legal disability do not apply
to a suit to enforce a right of pre-emption3.

16.2. The Law Commission,' relying on the Privy Council case of Magyyappa
V. Subrama_nya,"' recommended extension of the old section 17 (now section 16)
of the 1908 Act'even to rights of action accruing on death and this recommenda-
tion has since been accepted. The gist of the Privy Council decision is that time
does not run or commence to run until there is a person in existence who is_capable
of being sued. This proposition has been sought to be clariﬁed in present sec-
tion 16, which takes the place of section 17 of the Act of .1908. The crux of
the amendment in the law achieved by section 15 of the present Act is the addi-
tion, in sub-section (1), of the words "where a right to institute a suit'or make
an application accrues only on the death of a person" and the addition of cor-
responding words in sub-section (2). The change was made in the light of cer-

tain decisions that had applied section 17 of the Act of 1908 even to cases where '

the right to sue had accrued on death."

16.3. No further change is needed in the Section.

1Cf- Kesho Prasad V. Madho Prasad, (1924) I.L.R. 3 Pat 880.
"Sections 6-7. .

3Section 8.

'Law Commission of.India, 3rd Report, Page 21. Para 47.
5Mayyappa v. Subraman_v(I, 30 C.W.N. 833 (RC).
"Meyappa v. Subramanya, (1916) 20. C.W.N. 833 (P.C.).

No change

needed.

Section 17-
Elfect of

' fraud or

mistake on
limitation.

Sources of
the contents

of the section.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963
(Chapter l7--~Section 17--Fraud and Mistake)
CHAPTER 17.
FRAUD AND MISTAKE

17.1 In general, a peron's ignorance of his right tb sue does not suspend
the running of limitation. However, it has been recognised for a long time that
"the right of a party defrauded is not alfected by lapse of time .... ..so long as
he remains, without any fault of his own, in ignorance of the fraud which has
been committed"? Acting on this principle, section 17 provides that in the case
of certain types of fraud, the period of limitation shall not start running until the
fraud has been discovered. This, of course, is only a broad statement of the
principle, several matters of detail _which are dealt with in the section will be
mentioned. in due course.

More or _less the same principle is applied by the Act where relief from the
consequences of a mistake is the very basis of the cause of action, the period of
limitation shall not begin to run until the plaintiff or applicant has discovered,
the mistake.

In both these cases, the relaxation is given by the Act itself. In addition, I

there is a third case where the Act gives a power to the court to extend the period
of limitation on the ground of fraud. Where a judgment debtor has, by fraud
or force, prevented the execution of a decree or order within the period of limi-
tation, on the ground of fraud. Where a judgment debtor has, by fraud or
force, prevented the execution of a decree or order within the period of limita-
tion, the court may, on the judgment creditor's application made after the expiry
of the period prescribed for execution, extend the period, if the application is
made within one year from the date ofdiscovery of fraud or the cessation of
the force, as the case may be. Incidentally, this provision takes in not only
fraud--a circumstance that affects knowledge-but also force----a circumstance
that affects the exercise of the right, and not its knowledge.

17.2. The section ,may appear to be rather long; this is due to several fac-
tors, mainly historical. The main subject of the section--fraud~was dealt in
the Act of 1908 in section 19. '

. However, that section did not speciﬁcally \deal with a cause of action which
itself was founded on fraud: it dealt only with fraud that prevented knowledge
of a right already accrued. The Law Commission, in its Report2 on the earlier
Act, considered it proper that that case should be included--as in the English
Act' Secondly, as recommended by the Law Commission, in the same Report.
the case of mistake has also been covered in the present Act again, on the
lines of the English Act. In India, the earlier Limitation Act of 1908 did not
contain a provision for mistake in the body of the Act. Article 96 of that Act,
however, laid down a period of three years for a suit "For relief on the ground
of mistake" and provided that the starting point shall be "When the mistake
becomes known to the plaintiﬂ°." .

Thus, fraud' and mistake are the matters dealt with in section 17(1). Sub-
section (2) of the section, relating to fraud or force preventing the execution of a
decree, isiderived from section 48(2) proviso of the Code of Civil Procedure,
1908. -

'Rolfe v. Gregory, (1864) 4 De G.J. & S. 576. 579 (Lord Westbury).
'Law Commission of India. 3rd Report (Limitation Act, 1908) page 21, para 48-49.
3Section 26, Limitation Act, 1939 (Eng.). p

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 17--»Secti0n l7----Fraud and Mistake)

Section 48 was repealed (as recommended by the Law Commission in its
report on the Limitation Act, 1908) but it was necessary to retain, on the statute
book, this part of section 48 and the Law Commission recommended that it
should ﬁnd a place in the Limitation Act, in the section dealing with fraud.'

17.3. At this stage, it would be useful to,Ireferito certain developments in Comparative
this ﬁeld in the "United Kingdom. Section 26 of the U.K. Limitation Act 1939", 't"d'§Zn°§_n¢
as it stands after its revision by the Limitation Amendment Act 19803 is repro- English law.

duced below as of interest;

'.'PostponemIem' of II'mz'Icm'on period' in case 'of fraud, concealment or mis-
take. ' ~

I 26. (1) Subject to sub-section (3) of this section, where in the case of any
action for'which a period of limitation is prescribed by this Act, either---_

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiffs right of action has been deliberately
concealed from him by the defendant; or ( '

the period of limitation shall not begin to run(until the plaintiff has disco-
vered the fraud', concealment or mistake (as the case may be) or could with
reasonable diligence have discovered it.

. _ (2) For the purposes of the last foregoing sub-"section, deliberate commission
of a breach of duty in circumstances in which it is unlikely to be discovered for
some time amounts to deliberate concealment of the facts involved in that breach
of duty.

' (3_) Nothing in this section shall enable any action----
(a) to recover, or recover the value of, any property; or

(b) to enforce any charge against, or set aside any transaction affecting, any .
property; - A

I
to be brought against the purchaser of the property or any person claiming
through him in any case where the property has been purchased for valuable
consideration by an innocent third party since the fraud or concealment or (as
the case may be) the transaction in which the mistake was made, took place.

(4) A purchaser is an innocent third party fortthe purposes of this section----

(a)' in the case of fraud or concealment of any fact relevant to the plaintiffs
right of action, if he was not a. party to the fraud or (as the case may

. ' be) to the concealment of {hat fact and did not at the time of the pur-
chase know or have rear:-r. to believe that the fraud or concealment
had taken place; and '

(b) in the case of mistake if he did not at the time of the purchase know or
have reason to believe that the mistake had been made.

_ Case law that has accumulated on the above provision in England though'
. ' of interest neednot be mentioned here as it is not material for the purposes of
the present Report. '

'Law Commission of India, 3rd Report (Limitation Act, 1908) page 21, para 48-49.
"Limitation Act, '1939 (2 & 3 Geo. 6c. 21). (Eng.)., '
3Limitation Amendment Act 1980 c. 24 (Eng).

s'--14 Mot' _m;cA/ND/as I

Wide meaning
to the word

"fra.ud'1n

England. W

89TH REPORT or LAW COMMN. or lNDlA ON THE LIMITATION ACT, 1963

' (Chapter l7----Section 17%-Fraud and Mistake)

17.4. The English authorities have been interpreting the word 'fraud' very
widely and have been regarding dishonesty as fraud for the purposes of the Limi-
tation Act, even' if the conduct in question, would not constitute fraud at com-
mon law.'-" '

'\ "The contention on behalf of the appellants that the statute is a bar unless
the wrong 'doer is proved to have taken active measures in order to prevent deten-
tion is opposed to common sense as well as to the principles of equity. Two men,
acting independently, steal a neighbour's .coa1. One is so clumsily in his opera-
tions, or so incautious, that he has to do something more in order to conceal his
fraud. The other chooses his opportunity so wisely, and acts so warily, that he
can safely calculate on not being found out for many _,a long day. Why is the
one to get sclot-free at the end of a limited period rather than the other? It would
be something of a mockery for courts of equity to denounce fraud as "a secret

thing", and to profess to punish it sooner or later, and then to hold out a reward'

for the cunning that makes detection diﬁicult or remote."

We do not, of course, propose any change in the article in our Act on this
point. I
' I

17.5. In relation to section 17, we ﬁrst deal with a few cases relating to fraud
subsequent to accrual of the cause of action. In a Calcutta case3, the father of a
minor obtained a decree, butdied before its execution. The judgment debtor got
himself appointed as guardian of the minofs property, but did' not disclose to the
Court his indebtedness' to the minor under the decree. It was held that the judg-
ment debtor, once he became a guardian, was under an obligation to make a
full disclosure to the court of his indebtedness.
a fraud, both on the court and on the minor.

The Madras Law Journal, commenting on thiscase (while recognising that
substantial justice was done in the case),;doubted whether an act of fraud com-
mitted after accrual of the cause of action is within the section.'

The view of the Madras High CouIt5-iisalso to the effect that section 18 of
the Limitation Act, 1908 cannot apply to a case..where there was no fraud at the
date when the cause 'of action arose, but a subsequent act of fraud was relied on

. to save limitation.

The Patna High Court', while commenting upon section 18 (of the Act or

l908) in connection with an application under Order 21. rule 90 of the Civil Pro-p

cedure'Code, 1908, observed :-

"It is clear from the language ofthis section that the petitioner,' 'in order _

to get the beneﬁt of it, must satisfy the Court that he had been kept from
the knowledge of his right to ﬁle an application to set aside the sale by the
opposite. party. His right to set aside the sale clearly accrues after the sale.
Therefore, the fraud perpetrated by the opposite party must be a fraud com-
mitted after the sale and not fraud committed in bringing about the sale: and
the fraud must be one by which the petitioner has been kept from the know-
ledge of his right to ﬁle the application} to set aside the sale.'-'

In the absence of later case law continuing the controversy, no change is
needed.

1Beaman v. A .R.T.S. Ltd.. (1949) 1 All ER. 465
"Bulli Coal Mining Co. v. Osborne (1899) A.C. 351. "
3Gabinda Lal v. Nalini Kanta. A.l.R. 1925 Cal. 584', I.l..R. 52 Cal. 63.
'Comment in (1925) 48 M.L.J. (Journal) 31.
'RamaIagu Servai V_ Solai Servai, AIR, 1921 Mad 283.
, Vagdhar v. Dhpra\i, A.I.R. 1920 Pat. 725. A '

His non-disclosure amounted to -

89TH REPORT or LAW comm. or INDIA ON THE LiMirArioN ACT, 1963 A 51-

(Chapter l7~Section l7--~Fi'aud and Mistake)

17.6. Unlike the English law (where there is no general statutory deﬁnition Th, 1,3,," ~y
of "fraud"), the Indian Contract Act, 1872 deﬁnes "fraud". Case law that has l3W- -

, developed in India around this statutory deﬁnition governs the concept of fraud.

so far as that Act is concerned. Limiting ourselves to the law as contained in sec-

tion 17 of the Limitation Act, we ﬁnd that it woul not be inconsistent with the

scheme of things if we give a wider meaning and content to the word "fraud" for ,
the purpose of the Limitation Act, leaving the deﬁnition of "fraud" in the Contract
Act unaltered. That is to say, on proof, of the existence of certain circumstances,
a plaintiff would be able to cross the ﬁrst hurdle of limitation and to seek post-
ponement of the point from which time shall begin to run against him under the
Limitation Act. This would be regardless of the question whether the matter is
tried on merits, the same set of circumstances is to be regarded as sufﬁeient to
enable him to obtain a judgment against the defendant on the ground of "fraud"
as a matter of substantive rights. »

~ r

17.7. As adumbrated earlier', in England section 26 of the Liriiitation Act English
has been amended to enlarge the concept of fraud law or equity. The debates "'°'"'°"'
show that it was the intention of the legislature to allow the courts to develop -
this ﬁeld of. law. A general proposition enunciated by Lord Evershed M. R.

"that fraud' is conduct or inactivity which, having regard to some special relation'-

» , ship between the parties concerned, was an unconscionable thing for the One to

do towards the other" appears to us to be a tersely comprehensive statement of
the position'. ' . '
17.8. We are of the view that a suitable Explanation should be added to prgncgpl.

section 17 of the Limitation Act, taking the substance from the English. provi- giogifgggh

sion as to unconscionable conduct? In principle, 'we End the English provision a to 1,,

/ . a

useful one. . » ' . '°°°"P°'3'°d~

. 717.9. Besides dealing with fraud, section 17 also deals withirelief based on Mistake and
mistake. The use of the expression 'mistake' raises the question of relief claimed 3:: $w"ufﬁm_'
by 7a person on the ground that a statute or statutory instrument on the strength tional suture.
of which his rights had been interfered with has been found to be unconstitu- '
tional. Thereare a few decisions of the Supreme Court of India on the subject,

to be noticed presently.

. 17.10. The Supreme Court has held' that in the absence of A' any provision of Writ jurisdic-

law_ speciﬁcally» applicable, a period of limitation cannot be provided by judicial 3;"b';':.d°\f

legislation. Nor can the court relax the law of limitation except as provided by limitation.

' a speciﬁc statutory provisioni'. . 1,

I 17.11. However, a different approach is visible' in the case of writs.

In a recent case'. the question that fell uforvcortsideration revolved round the
modalities of the refund of excess market fees realized by the several market
committees of Haryana. The original rate of market fee of 2 per cent was in-
creased to 3 per cent under Haryana Act 22 of 1977. This-increase was challenged

. as being unconstitutional. )

-'See para l7.3. supra.

' 3Kitchen V. R.A.F. Association. (1958) 3 All ER. 241, 247.
-'For the draft, see end of this Chapter. , - ,'
'State Bank of Bikaner and Jaipur v. C. S.' Verma, (1968)'l Labour Law Journal 840, .

844 (S.C.). \ ' .
' 'C f. Rrtiender Singh v. Santa Singh; A.I.R. 1973 SC. 2537, 2547. '
.-'Shiv 'Shankar 'pal Mills v. State of,Haryana, (1930) 2 S.C.C. 437, 438.

89m REPORT or LAW COMMN. or INDIA on me LIMITATION ACT, 1963

(Chapter l7--Sect1'on l7----Fraud and Mistake)

The challenge was upheld and the recovery of excess of 1 per cent was
'held to be ultra 'vz'res. No directions were, however, given for refund at the time
when the Haryana Act 22 of 1977 was declared unconstitutional, because these
amounts could not then be quantiﬁed. There was some discussion before the
High Court regarding the article of limitation applicable to. such a claim for re-
fund ofdlevies held unconstitutional by the court. But the Supreme Court observ-
ed as under on this point :.---- '

"There cannot be any dispute about the obligation or the amounts since
'the Market Committees have accounts of collections and are willing to dis-
gorge the excess sums. Indeed, if they ﬁle suits within the limitation period.
decrees must surely follow, What the period of limitation is and whether
Article 226 will apply are moot as is evident from' the High Court's judg-
ment, but we are not called upon to pronounce on either point in the view
we take. Where public bodies under: colour of public laws, recover'people's
moneys, later discovered to be erroneous levies, the dharrna of the situation
admits of no equivocation. There is no law of limitation, especially for
public bodies on the virtue of returning what was wrongly recovered} to whom
it lgelongs. . J 4. i '

Nor is it palatable to our jurisprudence to turn down the nriyer for high
prerogative writs, on the negative plea of 'alternative remedy' since the root
principle of law married to justice, is ubitjus ibi r:'nzedizmz."

_ The number of occasionson which the market committee realised the increas-
ed 'levy of rupees three must have been legion. But, as appears from another
judgment of the Supreme Court', the levy was effected under the provisions of.
Ordinance 12 _of 1977 dated 5th September, 1977 (in Haryana) and Ordinance
2' of 1978 promulgated on 28th April, 1978 (in the State of Punjab). That is to

say, in both the cases, if the market committees were to ﬁle suits before the _

judgment of the Supreme Court" was delivered, the civil suits would have been
in' time. But the observations of the Supreme Court extracted above indlgate a

readiness to give 'relief in writ jurisdiction unhampercd by the technicalities of

limitation. -

17.12. In an earlier case''' the Supreme Court' that observed that where a
person comes to the court for a relief under article 226 of the Constitution on
the allegation that he has been assessed to tax under a void legislation and, hav-
ing paid it under a mistake, is entitled to get» it back, the court, if it ﬁnds that
the assessment was void, being made under avoid provision of law; and that
the payment was made by mistake, is still not bound to exercise its discretion
directing repayment. Whether repayment should" be ordered in the exercise " of
this discretion will depend in each case on its own facts and circumstances. The
court, felt that it was not easy nor was 'it desirable to lay down any rule for
universal applipation. 2 4

v V R .

17.13. The observations of the Suprme Court' to the effect' that where the

delay is more than the period of limitation prescribed for a civil' action (which

is three years), "it will almost always be proper for the court to hold that the

delay is unreasonable, "were pleaded in a recent case 'before the Calcutta High
Court' on behalf of the State of West Bengal as :1 justiﬁcation for denying the

'K'. K. Puri V. State of Punjab (1979) 3 S.C.R. 1217, 1228, 1262. '

"Shiv Shankar Dal Mills v. State of Haryana, (1980) 2 S.C.C. 437, supra.

3State of M.P_ V_ Bhailal B/mi, ALR. 1962 SC. 1008.

'State of M.P. v. Bhailal Bhai, paragraph, 17.12, ,s,u;2,ra.

237 5Sta-te"of West Bengal v. Suresh Chandra ?o.sfe;i;§198Q) 84 Calcutta Weekly Notes 229,
. . /, ~ .. 31,' V} ' '

/ . . I
891'H REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l7----~Sectio/z l7--'-Fraud and Mistake)

refund of certain taxes paid by a sanitary contractor under the Bengal Finance

(Sales Tax) Act, 1941. Rejecting the contention, however, the High Court obs-
erved:--- '

"In our view, in Bhailal Bhai's case, the Supreme Court has not laid down
any ﬁxed period namely, three years when the mistake was detected as 'in
Article 96 of the Indian Limitation Act, 1908. As we have understood the
decision of the Supreme Court in Bhailafs case, it has been laid down by
the Supreme Court that the High Court should not normally exerc'ise its
dz'scrctI'0n when the claim for refund is made beyond the period of three
years from the date the mistake came to be known to the party. The use
of the words 'almost always' is very signiﬁcant. The' facts and circumstances
of a particular case may be such as to persuade the High Court to exercise
its discretion in favour of the party claiming refund even beyond the period
of three years from the date of his knowledge of the mistake. If a party,-
after coming to know of the mistake committed by him in paying taxes not
payable him because the law under which the taxes were realised was void,
does not take any step in the niatter either by making an application for
refund or bringing it to the notice of the authorities concerned about the
illegal realisation of the tax under a common. mistake of law, or in other
words, if the party sits idle during the period of time within which a civil

action is to be brought, in such'a case, the High Court should not exercise ' Z

its discretion in granting relief to that party;for refund."

17.14. Then there is a Madras case also on the subject. In a suit ﬁled by
Parry and Company against the State of Tamil Nadu on the original Side of -
. the Madras High Court', the question of applicability of section l7(l)(c) came up
for consideration. Parry and Company, a dealer in engineering equipments (for
goods imported under the Import Trade Control Permit) were taxed by the sales
tax authorities on certain transactions as local sales for the assessment year upto
1966-67-. 'In view of the decision of the Supreme Court in Kh0sla's case' the
plaintiffs became entitled to refund of the sum of Rs. 43,659/- paid by way of
sales tax for the recovery of which the suit was ﬁled. The Supreme Court judg-
ment was delivered on 18th January 1966 and reported on 1st May 1966. The
court found, as a question of fact, that the plaintiff had knowledge about the
judgment on 14-3-68. As the suit was ﬁled on 20th March, 1972, the court dis-
missed it as being barred by time, but there are observations in the judgment to
indicate that if the plaintiff had approached the court within three years of his

_ knowledge of the decision of the Supreme Court in Khosla's case, the suit would
have been within limitation. '

' 17.15. Another case" relating to the refund of sales tax recovered under mis-
take of law--this time from Madhya Pradesh brings out how the omission from
the Act of 1963 of article 96 (which occurred in the Act of 1968) makes no sub-
stantial difference to the position. The following observations are pertinent:

"Under the Indian Limitation Act,' 1908, a claim for relief on the
ground of mistake was governed by art. 96 and '-time commenced to run
from the date when theqmistake becomes known to the plaintiff. See The
State of Madhya Pradesh V. Bhailal Bhai, 15' STC 5150 A.I.R. 1964 SC 1006
and (1965) 16 STC 689 (SC) (supra). In both these cases it was.he1d that

1Parry & Co. v. State of Tamil Nadu, 1975 -Tax Law Report 1565 (Madras).
9K. G. Khosla & Co. Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, _A.I.R.

. 11966 so. 1216.

*Caltex (India) Ltd. V. Asstt. Commissioner of~&;IIes Indore Region, Indore,' A.I.R. _
I971 M.P. 162. -- is H

'S4

Position

up as to
mistake of --
law.

Recommendation
to insert an

"Explanation to
, Section 17. *

--Seet_io_n 18-

Eﬁect _ of
acknowledg-
ment in
writing.'

Execution

, pages 80-81 Sections 17(1) add 18 Explanation.,

~ 89m run-oar or LAW corms. or mom oN' rm; i.i;\rrrAr1o:~z ACT, 1963

(Chapter l7- V-Section l7--Ii'raud and Mistkakc)
Chapter l8--»--Scction l8----Ackn0wledgement

article 96 applied to a suit for recovery of money paid under a mistake 'of
law. Article 96 has been omitted in the new Limitation Act of 1963. How-
,ever', section l7(1)(c) of this' new Act provides that in the case of a suit

for relief from the consequences of a mistake, the period of limitation shall'

not begin to run until the plaintiff has discovered the mistake or could with
reasonablevdiligence have discovered it."

17.16. The upshort of the above discussion is' that even though Shiv Shankar
Dal Mills case expounds a theory that there is no law of limitation for returning
what was wrongly recovered, this observation was intended to indicate only
the width of the writ jurisdiction. It should not be taken to mean that the courts
should ignore the provisions of section 17 read with article 113 of the Limitation
Actand decree a time--barred suit.

17.17. In the result, the only change needed inscetion 17 is the addition of'

an Explanation to deal with conduct which is unconscionable, having regard
to the special relationship between the parties--a point already dealt with earlier
in this Chapter.' For this purpose, we recommend the insertion of the following

' Explanation below section l7:----

"Explanation.--~F0r the purposes of (this section, 'fraud' includes con-
duct on the part of the defendant or the opposite party, as the case may be,
which, having regard to some special relatiohship between the parties, was
unconscionable." 3

CHAPTER 'l8

SECTION 18: ACKNOWLEDGMENT ' '

18.1. Where a suit or application is in respect of any property or right, an
acknowledgement of liability in respect "of such property or right, made in writ-

' ing signed by the party against whom the property or right is now claimed (or

by his predecessor-in-interest), gives a fresh period of limitation, to be computed
from the time when the acknowledgement vﬁts so signed. This is the gist of
section 18(1). Section 18(2) deals with the cases in which oral evidence of the

-contents of the acknowledgment may be given.

The Explanation to the section, in clause (a), lays down that an acknowledg-
ment may be suﬂicient though it omits to specify the exact nature of the pro-
perty or right, or avers that the time at payment etc. has not yet arrived, or is

accompanied by a refusal to pay etc., or is coupled with a claim to set off, or is

addressed -to a person entitled to the property or right. 7

Under Explanation (b) to the section the expression "signed" means signed

" either personally or by an agent duly authorised in this behalf»

Explanation (c) provides that an application for'theI execution of' a decree
or order shall not be deemed to be an application in respect' of property or right"_.

18.2. It was as a result of the recommendations of the Law Commission"
that Clause (c) of the Explanation modifying the earlier rules provides that an
application for the execution of a decree or order does not make it equivalent to
an application in respect of any property 'or right (Section 18). It has similarly

'See paragraph _17.8. supra: ._ _~ _. _
2Law Commission of India. 3rd Reports.' (Lnnitation Act 1908) page 23, para 52

and

89TH REPORT or LAW COMMN. or IIVDIAI ON THE LIMITATION Acr, 1963 .

(C hapicr 18--- -Section 18-Acknowledgement.)

been provided that "debt" does not include money payable under a decree or
order of a court (section 19)'. The Law Commission was of the view that in res-

, pect for execution there should be no scope for extension of time by acknowledg-
ment or by part payments.

One writer, commenting on a judgment of the Madras High Court", has ob-
served" that the Act of 1963 the earlier labyrinth of rulings on step in aid -in
execution have no relevance.

18.3. Dr. Whitley Stokes in his Anglo-Indian Codes' has made the following Person
suggestion relevance to the Section 1 ---- "5'd°'.'. A
v - ' disability
"Section 19 (corresponding to section 18 of 1963 Act) should provide
foi the case of an acknowledgment or payment in favour of a person under
disability or by a person absent from British India".

_ This suggestion has been repeated by U.N. Mitra in his book on the Law

of Limitation & Prescription'. . '
18.4. No decided case has, however, been noticed by us in which the courts Chang'
have refused to grant the beneﬁt of section 6 or section 15(5) '(these are the rele-'not ncedm
' vant provisions in the present Act) in addition to the period of limitation comput-
ed in accordance with sections 18 and 19 of the Act of 1963, that is, the benefit
of a fresh starting point for such computation upon an acknowledgment or pay-
ment. An attempt to clarify at this stage that sections 18 and 19 shall not preclude
the taking into account of the provisions of section 6 and section 15(5) may lead
to an unintended result that the other provisions of the Act which also provide

V for the exclusion of time in certain other speciﬁed cases are in derogation of the
effect of sections 18 and 19. Consequently, even though We agree in substance with
the approachof Dr. Whitley Stokes, we do not consider any amendment to the
Act necessary on the point under discussion.

\ \

, ' 18.5. It would be of interest to compare the position in England. Unlike the The English
_phraseology used in sections 18 and 19 of the Indian Act. which provides beyond ﬂ'§°'3g"1'§"3'3_'
doubt that the acknowledgment or payment has to be made "before the expiration '
of the prescribed period", under the English Act' an acknowledgment or part- -

p ment made outside the limitation period gave rise'to a fresh' cause of action

' ex pt where the expiry of the limitation period has not simply barred the remedy,

/but extinguished the right'---say, in case of claim for recovery of land or ad-
vowson. '

But it should be mentioned that by the Limitation (Amendment) Act. 1980,
which came into force on 1st May, 1980, the following sub-section has been. add- '
ed at the end of section 28 of the principal Act: ' -- T

' "Subject to the proviso to the last foregoing sub-section. a current
period of limitation may be repeatedly extended under this section by fur-
'wther acknowledgments "or payments, but a right of action, once barred by
this Act. shall not be revived by any subsequent acknowledgment or pay-
ment". -. V
The eﬂect of the new sub-section seems to be to prevent a cause of action
from reviving once the limitation period has expired.

'Section 1.8. Explanation (C): section 19,' Explanation (b).
3Damodaraswam.' Naickcr V. Simdararaan, (1972) l M.L.I. 346. . .

, 3G. Venkatanarayanan. "Step--in-Aid steps out with acknowledgment from execution

proceedings (1972), 2 M.L.J. (Journal) .13. _ _ \ »

- 'Stokes, Anglo-Indian Codes (1885) Vol. 2, (Adiective Law), page 950.

' -"'U.N. Mitra. Law of Limitation and Prescription (9th Edition). page 550.
5Seetion 25(5), proviso and 29(6), proviso, Limitation Act, 1939 (_Eng.).
71-Ialsbury, 4th _Ed.. Vol. 28_ page 383. -para-393, and page,408,' para 910.-911.

Section 19-.
'Eﬂwt of(
P03111981. 0!
account of debt
or of, interest

) d.
'il's';'a'."°'zson.x.'T'

Suits for
redemption.

Co-relation of
the .

to
Explanation.

39TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l8--Secti0n l8--Ackn0wledgement.)
(Chapter 19----SecIi0n 19----Part Payment.)

18.6. So far as could be ascertained, no 'serious controversy exists at present
on_- the form or substance of section 18 and we do not therefore see any need to
recommend a change in the section. 1 . -

M CHAPTER 19

SECI' ION 19: PJXRT PAYMENT

19.1. Analagous. to the acknowledgment of liability, dealt with in section 18
is payment of a part of the amount due, made by the person liable. Such payment
may be regarded as an implied acknowledgement, or at least analogous thereto.
In any case it preserves evidence, and the demand is no longer a 'stale' one. The
subject is dealt with in the next section--section 19. The main paragraph of the
section provides for computing a fresh period of limitation when the person lia-
ble to pay a debt or legacy (or his agent) makes, on account of the debt or of
interest on the legacy, payment before the expiry of the prescribed period. The

roviso to the section enacts that (save in the case of a payment of interest made
Ezofére the 1st day of January 1928), an "-acknowledgment of the payment must
a

ar in the handwriting of the person making payment, or in a writingsigned
by that person." s

The Explanation to the section consists of two clauses deﬁning in certain
respects the ambit of "payment" the ambit of "debt". In clause (a), it provides
that 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 "payment". Under clause'
(b) of the Explanation, "debt" does not' include money payable under a decree
or order of a court.

19.2: In the past, the section (as occurring in the Act of 1908 gave rise to
some debate as to its application to a suit for redemption.' It is now well settled"

* that the section applies only to shitspfor the recovery of a debt (and not to a suit

for the recovery of property). To put the matter beyond doubt, we recommend

that the section 19 should be amended so as to indicate expressly that the' section -

is meant for a suit of recovery of a debt or legacy.'

19.3.'The Explanation to section 19 provides that receipt by the mortgagee
of rent or produce of the land mortgaged "shall be deemed to be a payment"
However,-'the Explanation does not link itself up with the proviso preceding it,

. which requires that the "payment" should appear, in the handwriting of, orin a

writing by, the person making the payment. The non-mention of this requirement
in the Explanation to section 19 has been interpreted to mean that the proviso
does not apply to cases coveredby the Expianation.' This" construction can be
said to be supportable on the fact that the physical possession of the property be-
ing with the mortgagee, it is not possible for the mortgagor to make the "payment"
of produce whichthc mortgagee might appropriate to the debt. To put the mat-

ter beyond doubt, we had contemplated the addition _of a clause somewhat as

under: *

"Notwithstanding anything containedin the proviso to this section, it

' . shall not be necessary to have the acknowledgment required by the proviso
in respect of such payment", at the end' of clause (a) of the Explanation.
But the judicial "interpretation being in conformity with the philosophy of

' 'Mohammad Akbar Khan V. Motczi, A.I.R. 1948 EC. 36. /38.
'Mohammad Akbar Khan v. Motai. AJR. 1948 PC. 36; 39.
'See para 19.12, infra. for a draft of the revised' section.
'India V. Vanad, A.I.R. 1966 Gui. 59, 60.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l9----~SecIion l9--Part Payment.)

'the section, we are refraining from making any suggestion in this regard.'

It is apparent that in the case of land in the possession of the mortgagee, an
acknowledgment of the payment would not appear in the handwriting of, or in
the writing signed by, the, person making the payment for the simple reason that
-the payer and the payee are one and the same person. As stated above, we are
not recommending any clariﬁcation in this behalf to the proviso.

19.4. One speciﬁc point requires attention in connection with section 19, Section 1_9, _
I, Explanation (a). Where mortgaged land is in the possession of the mortgagee, E':'§Il1°ﬁ'l3f__'t"'a':' ('*1
the receipt of the rent or produce of such land is deemed to be a payment for to "land".
the purposes of that section, thus enabling the computation of a fresh period of
limitation from the time the payment is made. Now, the expression "land" has'
been dilferently interpreted. The Madras High Court,' construing the word 'rent'
as ejusdem generis with 'produce', holds that the word 'land' in the section re-
fers on1y"to cultivable land and would not include a house--or even the site on
which a house might have been built.

19.5. On the contrary, the Madhya Pradesh High Court} dissenting. from Conﬂict.

the Madras view} and relying on the meaning as given in judicial dictionaries,
holds that 'there is no warrant for reading the word 'rent' as ejusdem generis
with 'produce'. According to it, the section applies not only to the rent received
from the cultivable land, but also to the rent received from a house or house-
site.

To the same effect are rulings of the High Courts of Bombay', and Gujarat'.

19.6. In our opinion, there is no rationale in limiting the. provisions of the Need for
'section to cultivable land, simply because the section um the' word 'produce'. clariﬁcation.
In theory, one could enlarge the applicability of the principle to cases involving
moveable property, because it is conceivable that a person may hand over his
property to a creditor whogin his turn, can appropriate' the income derived from
the use-thereof towards payment of the debt (e.g. a taxi driver taking a loan from
a bank and hypothecating his taxi to the bank). However, to avoid any further
controversy on the question whether the word 'land' includes house property
or not, we recommend that the Explanation to section 19 should be suitably
amended by using the expression 'immovable property' for the word '1and'.'

19.7. Another point concerning section 19 Explanation (a) concerns the Section 19

word 'mortgage', as occurring in this explanation. There is no reason why Explanation (a)-
clause (a) of the Explanation should not include a 'charge'. But the Chief Court é'h1:glé::t'°" '°
'of Oudh' has held otherwise, and, to avoid controversy on this point, it is desi-

~ rable that the section should be suitably amended to cover a case of 'charge'

"also."-9

'Gudur Ramalgrishna Reddi v. Muniratnammal, A.I.R. 1954 Madras 890. 893; I.L.R.
(1954) Mad. 1226: (1954) l M.L.J. 546.

2Radha Krishna V. Anoop Clumd, A.I.R. 1973 M.P. 248, 251.

3Paragraph 19.4, supra.

'Manik Chand v. Rachappa, A.I.R. 1952 Born. 266.

5Dadia Bhailal v. Vanmzd Maganlal, A.I.R. 1966 Gui. 59, 60, 61.

'See para 19.12, infra for a draft. .

7Gurden V. Rajkumar, A.I.R. 1943 Oudh 211; I.L.R. 18 Luck.' 637.

'Cf. Muthuswami v. Chennamalai, (1970) 1 M.L.J. 341, 343.

'See para 19.10, infra for a draft.

9-14 M of LJ&CAINDI83

Payment by
cheque.

,Need for
clariﬁcation

'Agreement for
deferring
presentation
of the

cheque. _

89rH -="<F.POR,T or I.-xw co\IMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter l9--Section l9----Part Payment.)

19.8. 'We. now turn to the question of payment by cheque. With the pro-
gress of institutionalised banking, payment by cheque has become the normal

practice, especially in urban areas. If the cheque, accepted by the creditor, is

ultimately' honoured, no problems present themselves. The "payment" consti-
tutes part payment.' In fact, Halsburyi' has gone further to say that "the accep-
tance by'the debtor of a bill drawn upon him by a creditor, or the delivery to
the creditor of a bill drawn by the debtor on a third person, on account of part
of the debt, is also suﬂicient part payment, whether the bill is paid at maturity
or not; it seems that in that case the part payment is deemed to be made at
the time of the delivery of the bill, and not when it is paid." The effect, it is
stated, would be the same if a cheque is given on the day, with an agreement
that the same should not be presented to the bank until a later day and, acting

_ upon the agreement. the creditor presents the cheque on the agreed day and

receives payment?

However, opinion in India on the subject is not uniform. The High Courts
of Bombay', Patna5, and Punjab' have held that the accpetance of a cheque
which is subsequently dishonoured does not constitute "payment" within the
meaning of section 19. The Madhya Pradesh High Court has held to the con-
trary.' According to the Andhra High Court. whether payment by cheque
amounts to "payment" depends on whetherthe payment was accepted as such
or not.'

I 19.9. There appears to be a substantial case for clariﬁcation on the sub'-
ject. We see no reason in principle why the beneﬁt of section 19 should not
be extended to such cases, I'.e., to cases where a cheque is accepted in payment
irrespective of whether it is honoured or not. Such a wide View would not be
doing violence to the rationale" on which payment is regarded as giving a

fresh lease of life.rEven in the substantive law, so far as a dishonoured cheque ,

is concerned, a new cause of action accrues upon delivery of the cheque to the
creditor".

19.10. We are not oblivious to the fact that whilg giving and accepting a
. . . O
cheque, the debtor and the creditor may enter Into a private agreement that

the creditor will defer 'the actual presentation of the cheque to some agreed'

future date, by which date the debtor is expected to arrange to ensure adequate
funds to his credit with the drawee. Even in such a contingency, there appears
to be no reason why the beneﬁt of section 19 should not be extended to the
creditor. If, in the hypothetical situation mentioned above, the debtor manages
to have adequate funds in his account by the agreed date, none is worse off. If
the debtor fails so to do and litigation becomes necessary, a fresh period of

a limitation would accrue in favour of the creditor. By not allowing the beneﬁt

of section 19 to cases of dishonoured cheques. the law may precipitate matters
and drive'the creditor to court. by denying the parties a chance to settle their
accounts amicably. '

1Marreco v. RiI'-'Im'dsorI. M908) 2 KB. 584 (C.A.).

31-lalsbuigv, 4th Ed. Vol. 28. page 404, para 900 and f.n. ll.

3Marreco V. Riclimdsolr (1908) 2 K.B. 584; (1908-12) All E.R. Rep. 55 (C.A.).
'Chimtaman v. .Sndguru Narain Maharai. A.I.R. 1956 Born. 553, 554. _

5Ariun Lal v. Daya Ram. A.I.R. 1971 Pat. 278, 279, 280.

"Northern India Finance Corpn. V. R. L. Soni, A.I.R. 1973 Punjab 35, 37, para 5.
"Geri Lal v. Ramjee, A.l.R. 1961 MP. 346. 347, para 5. ,
3Subrahaman_vam V. Venknraratlznmn, A.I_R_ 1956 Andhra '108.

9Cf. para 19 1, supra.

"Halbury, 4th Ed., Vol. 28, page 300, para .668.

_89'1'1~i REPORT or LAW cumin. or INDIA on THE L1MrrA'1'ioN ACT, 1963 59

(Chapter l9-~Section l9----Part Payment.)
(Chapter 20------Section 20~~A L'l<tI(}Wl:'dg('l)Ic'I!I or Payment By Another Person.)

19.11. For these reasons, we consider it desirable that payment by cheque
should be expressly covered, on lines to be indicated in the amendment that
we are suggesting.'

19.12. In the light 01" the above discussion. we recominentl that section [9 Recommendation.'
should be revised as indicated below :--

Revised Section 19

Where payment on account of a debt or of interest on a legacy is made
before the expiration of the prescribed period for a suit or application for the
recovery of such debt or legacy 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. in respect of any
suit or application for the recovery of such debt or legacy, as the case may be.

Provided that, save in the case of payment of interest made before 'the
ﬁrst day of January, 1928, an acknowledgement of the payment appears in the
handwriting of, or in a writing signed by. the person making the payment.

_ Explanation 1.--For the purposes of this section. '

(a)« Where immovable property which is mortgaged or charged is in the
possession of the mortgagee or charge-holder, the receipt of the in-
come of such property shall be deemed to be a payment.

(b) "debt" does not include money payable under a decree or order of a
court.

Explanation II.--Where payment on account of a debt or of interest on a
legacy is sought to be made by a negotiable instrument, the tender of the nego-
tiable instrument, if accepted by the payee in such payment, amounts to pay-
ment of the amount for the purposes of this section whether or not the nego-
tiable instrument is subsequently honoured.

CHAPTER 20

SECTION 20: ACKNOWLEDGMENT OR PAYMENT BY ANOTHER
PERSON '

1. Introductory

20.1. The two sections discussed in the preceding chaptersmsections l8 section 20,
(acknowledgment) and 19 (payment) -operate in situations of considerable '
variety. Thus, in business and commerce. where debts and other liabilities are
dealt with through agentsmthe more so when" the debtor is a corporate body-
there might, be cases where more persons, than one share the burden of a lia-
bility, but the correspondence is carried on by only one of them. Hindu law
also presents certain peculiar situations. There may be limited owners of pro-
perty, on the expiry of whose limited interest others will succeed to the property.

Or,' which is the more common case now~--a liability may have been incurred
by or on behalf of a Hindu undivided family as such, but its affairs are (as is
the usual practice) managed by the manager, who transacts dealings on its be-
half. In all these cases, the question may arise -whether, and if so, how far, a

'Para 19.12, infra.

oint
obligecs.

English [
Acts.

8911! REPORT or LAW COMMN. or INDIA ON 'THE LIMITATION ACT, 1963
(Chapter 20----Section 20-A cknowledgemenz or Payment By Another Person.)

person is bound by an acknowledgment signed by another person e.g. (i) agent,
(ii) another joint contractor etc. (iii) or limited owner in Hindu law or manager
of a Hindu undivided family. To put it differently, to what extent is a person
vicariously bound by an acknowledgment or payment made by another person,
in the context of the statutory provisions under which the acknowledgment or
payment has the effect of giving a fresh period of limitation.

Section 20 seeks to answer these questions, in three sub-sections--Sub-sec-
tion (1) gives, to the express "agent yduly authorised in this half"----an expres-
sion that occurs in section 18 (acknowledgment) as well as -in section 19 (pay-
ment),--an extended meaning, whereunder, in the case of a person under disabi-
lity, it includes his lawful guardian, committee or manager or an agent of such
guardian, committee or manager. --

Sub-section (2) of section 20 reads as under:--

-"(/2) Nothing in the said section [i.e., sections 18-19] renders one of several
joint contractors, partners, executors or mortgagees chargeable by reason
only of a written acknowledgement signed by, or of a payment made by, or
by the agent of, any other or others of them."

Sub-section (3) deals with the special situation arising under Hindu
law, mentioned above. 'Brieﬂy;-(a) an acknowledgment or .payment in
respect of liability by a limited owner of property governed by Hindu law
is valid as against a reversioner succeeding to such liability and, (b) an ac-
knowledgement or payment in respect of a liability (incurred by or on be-
half of a Hindu undivided family), made by the manager of the family for
the time being is deemed to have been made on behalf of the whole family.

This is a statement of the signiﬁcant features of the section. We now pro-
ceed to consider some of the important points.

11. Joint. Obli-gees

20.2. A point worth some discussion arises from section 20(2). Section
20(2) provides that nothing in sections 18 and 19 (dealing with the effect of

acknowledgment in writing or effect of payment on account of debt) renders, 3

one of several execution on mortgageesvchargeable by reason only of a written
acknowledgment signed by, or of a payment made by or by the agent of, any
other or others of them. The controversies that require discussion can be better
appreciated if a look is had at the English Law on the subject and its execu-
tion.-. '

20.3. In England ruling" by Lord Mansﬁeld' that any acknowledgment or
payment 'by one co-debtor was suﬂicient to take the case out of the statute of
limitation, even as regards other co-debtors, raised a number of protests which
resulted in curbing the ambit of the rule, as regards acknowledgments, by Lord
Tenderten's Act? and, as regards payments, by the Mercantile Law Amend-

' _ ment Act? The language of Lord T enderten's Act was as under:--

"No such joint contractors, executors or administrator shall lose the bene- '

ﬁt of the said enactmentsl(i.e., enactments as to limitation) so as to be
' chargeable in respect or by reason only of any written acknowledgment or
promise made and signed by any other or others of them." .

'Withcomb v. Whiting (1781). Sm. L. ,,Cas (13th Ed.)', Wlge 633.

"Lord Tenderlcn's Act. 9 Geo.4 C.l4. l828. ' .

'Section 14, the Mercantile Law Amendment Act, 1856 (19-20 VIC. c. 97) (Now repeal-
ed)-see section 24(2), Limitation Act, 1939, (Eng).

'(2) of section 20 is more or less of an Explanation to sections 18 an

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 61

(Chapter 20---Secti0n 20v--A cknowledgcmentior Payment By Another Person.)

20.4. It is interesting to note that within two years of the passing of the loevelopirmnts
Mercantile Law Amendment Act, 1856 the Indian Government passed Act No.1" Ind"
14 of 1859, section IV of which read as under:----

"lV. If, in respect of any legacy or debt, the person who, but for the Revival of
law of limitation, would be liable to pay' the same, shall have admitted Efhgdigisssggn
that such debt or legacy or any part thereof is due, by an acknowledg- in Writing.
ment in writing signed by him, a new period of limitation according to the
nature of the original liability, shall be computed from the date of such

admission: '

Proviso.----Provided that, if more than one person be liable, none of
them shall become chargeable by reason only of a written acknowledge-
ment signed by another of them."

20.5. This general provision was expanded in section 20 of the Limitation
Act, 1871 by speciﬁcally mentioning: "partners or executors" and read:

"Nothing in this section renders one of the several partners or executors
chargeable by reason only of a written promise or acknowledgment signed
by another of them." \ A

20.6. Joint contractors and mortgagees were added to the list of partners
and executors by section 21 of the Act of 1877.

20.7. It has been the view of the majority of High Courts that sub-section Section 20(2)
1_2_ 19 an explanation
' to sections
18 and 19.

20.8. The expression ' "chargeable by reason only of" in section 20 has Interpretation
been borrowed from, the English Acts on the subject, where it has not given i§eEc"03l1'i'r':,'£e':'s'!"'
rise to any diﬂiculty. In England, the matter is left to be determined by them India as to
general law as to whether the action of one of the joint obligees should bindl°l'" °b"$°°5-
the other. All that the two English statutes referred to above intended to do
was _to nullify the eﬂect of a ruling of Lord Mansﬁeld' on 'the subject. Thus,

when the question arose whether a payment by a partner of a ﬁrm would bind

* the ﬁrm, the answer was in the aﬂirmativef However, in India, arguments con-

tinued to be advanced as regards the co-relation between the expression "by
reason only" appearing in this sub-section and the eifect of the general law of

COHIIBCIS and partnership.
The Allahabad High Court, dealing with the point observed as under":-

"I understand this section to mean that the mere fact that persons are
partners does not make one partner liable under an Iacknowledgmeéit, etCC..
. by another partner._But in the present case, the liability arises an er stash-
tion 251, Contract Act, because the acknowledgment was ma e in e

course of the partnership business."
In this context it may be mentioned that in a going mercantile COIICCFTL
such authority may be presumed.'

'K thandaraman v. Shunmugam, A.I.R. 1917 Madras 895.
'-'Tl?e_varnrrutl v. Muthukumaraswami, A.I.R. 1929 Mad. 881.
3Gava Prasad v. Babu Ram, A.l.R. 1928 Allahabad 387.
'Wiiitcomb v. Whiting, (1781) 1 Sm. L. Cas. (10th Ed.) 561; 2 Dougl. 652.
5Go0dwin v. Parton & Page. (1880) 42 LT. 568.
"Debi Davul v. Baldeo Prasad. AIR. 1928 All. 491.
7 ta) Goriihundas v. Bhulablim'. (1932) 34 Born. L.R. 623.
(b) Premji V. 'Dosstz, (1886) I.L.R. 10 Born. 358.

2262'

No change
needed.

No change
as to
partners
needed.

89TH REPORT OF LAW COMMN. or INDIA ON rm; LlMl'l'ATlt)i\' ACT. 1963
(Chapter 20--Section 20--A ckiiowledgernent or Payment By Another Person.)

20.9. In.the result, no change is needed in the section. A recent ruling' of
Andhra Pradesh High Court deals with a case of joint contractors who have
signed a prornisory note. it was held that even though one of the promisors
was the son of the other two promisors, that cannot make him liable for the
endorsement made by the other two promisors on the promisory Note.

The word "only" was again noticed in a Bombay casef' which ruled that
the meaning to be given to the word 'only' in section 21(2) is that it may, also
be shown that the partners signing the a_cknowledg1ncnt had authority, express
or implied, to do so and that, in a going mercantile concern, such agency is to
be presumed as an ordinary rule.

20.10. Similar is the approach adopted when the question arises' as to the
elfect of an acknowledgment by the principal" on the obligation of the surety
and the repercussions of the acknowledgment by the surety' upon the principal.
Most of the High Courts are agreed that the liability of a surety cannot be
equated to that of a co-debtor or joint--contractor within the 'meaning of sec-
tion 20(2) of the Act5 and that the debt of the surely is distinguished from the
debt of the principal debtor."

The Bombay High Court in one case' observed:

"The payment of interest by the debtor within limitation does not give
fresh starting point for limitation against the surety under section 20 of
the Limitation Act (XV of 1877) even in the absence of a prohibition by
surety against the payment of interest by the debtor on his account. Let
us apply the words of section 20 to the case: the principal is not the per-
son liable to pay the debt of the surety, so that even if the payment of
interest could be regarded as a payment of interest on the debt of the
surety, still it was not made by a person liable to pay the surety's debt.
Can it then be said that there was a payment of interest on the surety's
debt by an agent duly authorised in this behalf? Apart from the diﬂiculty
oftreating the interest as due on the surety's debt'. we think this must be
answered in the negative, the question propounded in the reference ex-
cludes an express authority, and (in our opinion) the relation of principal
and surety does not give rise to any implied authority."

In this context it may be proper to emphasis that in a going mercantile

concern a partner has an implied authority I0 bind l.i1C Oiilﬂ
acknowledgment of liability 5 -" _-

20.11. We have given anxious thought to. the question whether an E'xp1ana-

tion should be added to section 20(2) to make it clear that nothing in sub-s¢ctiOn
(2) shall prejudice the effect of any acknowledgment as binding an other t
under the general law of partnership or contracts The object {:35 to Iizlneii
explicit that the Limitation Act. 1963, though later in point of time to the te 1
ship Act and the Contract Act does not purport to over ride in any mangar ntif.
' ' s er, e

I ,. - , , . _ -- ---------§.__
ggfi-'fz':§'éii§1'if§ Y/. §ii'Zi'fi'i;l§iii3'itii4.iz'.C'i'«3'3'§€ﬁfiiibibiiis '(W M' 2"-
_° ta) Federal Bank v, Bum Dev. A.I_R, I956 Junj. 21,54 para 12
lb} Dlvalu Mal V. Mtmdu. A.l.R: l93l Lab. 691' 694 4
Ha) Hazard Singlr v. BaksIu'.s'h, AIR. 1952 Punj 1195 495
_(b) Ranjir Kumnr v. Kisliari Malian. A.I.R. ,1940' Cal' 401 4p
J. Chins' V. Mﬂf}l€M' (I979) K_L_T 'I66 569 ' '7 ' ("'
"Som, Natl: Raju V. Ranuunurtliv A lk l£)57 Orissa l06 109 p 8
-' -- - . . ara _

F S"''''' "- CW0' 3"" Sena Bait~tl904) I.L.R is Bombay 248

'_Gopa'l. Day)'
:J'2_r(()"I$;:a\"'.d(l';)0s".:'t1 gl,88,6)I ;.l...R(.! ll) Bom, 358,
' ' """'"' 932) 34 30m L-R. 623. A.L.R. 1932 Bom 315

89Tn REPORT or LAW COMMN. or mom on THE LnmAT1oi~: ACT. 1963 63

(Chapter 20»--~See1ion 20 ~4Ackt1owIcv1g}errzent or Payment By Another' Person.)
Chapter 2l---- ----Section--- 2! Addition or Substitution of Parties

relevant provisions of these earlier statutes. But the exposition of this sub-section
by the Courts (as discussed above) shows that the Courts are examining the facts
and circumstances of each case and ascertaining whether, an agency (express or
implied) is made out therefrom. In this position, we do not propose any amend-
ment inthis regard.

20.12. As regards joint contractors and mortgagees, certain questions-arise persona: jaw."
when Mohamedan co-heirs succeed to the estate of the deceased in severalty. The d°e':i3"3e
part-payment by one of the Mohamedan co-heirs cannot avail to save limitation '
against the other heirs.' This also is a matter of the personal law of succession
and falls outside the scope of the present enquiry. Different considerations apply
to the case of an acknowledgment of the liability by a Hindu father" but. as a
general rule, it can be stated that where a part-payment by one of the joint deb-
tors is made, the mere presence of the other debtors at the place of payment will
not save limitation. unless it is proved that they also made the payment or that the
person who actually paid it did so, being authorised by the others?

Consequently. we do not recommend any change in the text of section 29(2)
on this count.

20.13. We have given anxious thought to the question whether we should No change
recommend deletion of the words 'joint contractors, partners. executors or mort- gggfﬁ' 'goal
gagees"and bring the language of sub-section (2) back to the stage it was in sec- '
tion 4 of the Limitation Act, 1859. thereby doing away with the embellishments

and illustrations added to the section in the course of time. However, we do not

' think that this would amount to a practical improvement and are not inclined to
' recommend any such change.

20.14. The position is that in applying section 20 the court will have to bear Substantive
in mind not merely the Limitation Act, but also the general law relating to them"-
particular ﬁeld. such. as agency, joint promises, suretiship, guarantee, partner-
ship and succession. Such an inquiry cannot be avoided. Courts have taken a
commonsense view of the matter. '

20.15. In the result. no change is needed in section 20. Iigdihlange
/' I' .

CHAPTER 21
SECI' ION 21 : ADDITION QR SUBSTITUTION OF PARTIES .

1. Introductory

21.1. The sections of the Act that have been so far considered were about Section 21-
computing the period of limitationwsomething concerning the period prior to§'§§f:io°If or
the institution of proceedings. The Act now, (in section 21) devotes some atlen-substitution
tion to determination of the date when the proceedings are deemed to have beenggl 11'.1*'r;'i't':ﬁ om
instituted. The general rule, of course. is that a suit commences when the plaint -

is presented.' This rule creates no problems when all the parties are before the

' Court from the very beginning. However. often it so happens that in the course

'Pathumma Boovi v. Rlrziakrislma Memm, A.l.R. 1975 Ker. 91.
2Deen Narain v. Bhagauzi Din, A.I.R. 1952 All. 116.

Mnnoda Charon V-. Jhatu Charan, A.l,R. 1935 Cal. 648,
'Section 3(2)(a).

'64

\
\

Newly added
proviso to
section 21(1),
and its
exposition by
the Supreme
Court.

law before
the addition
of the
proviso.

89TH REPORT or Lxw COMMN. or INDIA ON THE LIMITATION ACT, 1963

Chapter 2I--~--Section --2I~Addit(ion or Substitutioir of Parties

of litigation, a new plaintiff or defendant is substituted or added. Insuch a case.
the general rule, if taken literally, cannot apply, and one needs a speciﬁc provi-
sion in that regard. That is to be found in section 21.

Section 21(1) enacts (in the main paragraph) that as regards a new plaintiﬁ or,

defendant substituted or added after the institution of a suit, the suit is deemed

- to have been instituted "when he was made a party"--a date which would neces-

sarily'be later than the date of presentation of the plaint.

There is, however, a proviso to sub-section (1}--inserted at the instance of
the Law Commission1----under which, where the court is satisﬁed that the omis-
sion to include a new plaintiff or defendant was due to a mistake made in good
faith, it may direct that the suit shall, as regards such plaintiff or defendant. be
deemed to have been instituted on any earlier date. '

Sub-section (2)- of section 21 makes it clear that sub-section (1) does not
apply to. the following two cases :--

(i) where the addition or substitution is due to assignment or divolution
of any interest during the pendency of a suit. or.

(ii) where the parties are transposed.

The reason for making this clariﬁcation_is obvious. In the first case. the
predecessor-in-interest of the added party was already on the record. and the
suit is only sought to be continued against the successor. In the second case. the
party transposed was himself on record, though arrayed on the opposite side.

21.2. As stated above acting upon the recommendations of the Law Com-
mission,' a proviso has been added to sub-section (1) of section 21 to enable the
court to direct that a suit shall as regards a newly added plaintiff or defendant.
be deemed to have been instituted on an earlier date, if certain conditions are

satisﬁed.

The Supreme Court also regretted that this newly added proviso had no
application to the facts of the case before it, with the result that it had no power
to direct that the suit should be deemed to have been instituted on a date ear-
lier than'November 4, 1958. ' I

21.3. Before the addition of the proviso in section 21(1), there was consi-'
derable difference of opinion as regards the power of the court to add new par-
ties on a date when the relevant limitation period had already expired. In a
Calcutta case} an eminent judge, Ameer Ali J. refused to permit the additioniof
one of the partners after the expiry of the limitation period and observed:--

-"What was the reason for leaving him (i.e., one of the partners) out I do not
know. These people have innumerable combinations and for all kinds of
reason, ﬁrms with different names but t11e_same partners, ﬁrms with the
same names and different partners and so forth. They take undue advan-

tage of the facilities provided by the law and they must not be surprised if V

the law sometimes takes advantage of them".

Same was the view of the High Courts of Madras.' Rajasthan-' and Jammu
and Kashmir."

'Cf. Law Commission of India. 3rd Report. (Limitation Act. 1908), page 23, para 54.
3I.aw Commission of India. 3rd Report. (Limitation Act. 1908). page 23, para 54, and
page 81-82, section 20. See Remprasad v. Vijay Kumar, A.I.R. 1967 S.C. 278, 284.

3Bhairobux v. Deokaran, A.I.R. 1934, Calcutta 253. -

'Vyarathammal V. Somnszmdaram, A.I.R. 1960 Mad. 134.

5Firm Seth Hiralal v. Jagan Nath, A.I.R. 1957 Raj. 298.

"Mohi-ud--din V. Chandra Mohan, A.I.R.'1?66 1'11 K .64.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 ' 55
(Chapter 2l--SerIi0n 21---Ad(1iti0n or Substitution of Parties.)

21. 4-5. On the other hand, in a Madras case, a foreign ﬁrm instituted a
suit in its own name which it could not do in view of Order 30, Rule 1, Code of
Civil Procedures, 1908. Upon an objection being raised regarding the maintain-,
ability of the suit, the ﬁrm sought an amendment of the plaint by the substitu-
tion of the names of the partners. It was held thaHhere was no addition of new
plaintiffs, but merely a classiﬁcation of the individuals already on record.' It is
unnecessary to multiply the authorities. » 5

21.6. The Calcutta? case was criticised, and dissented from by the Madhya
Pradesh High Court' in which a comparison has been drawn between the draft-
ing of Order 30, Rule 2 of Civil Procedure Code and Order I, Rule 10 thereof.
Whereas the latter speciﬁcally makes a mention of the Limitation Act, the for-
mer does not do so and the court for this reason concluded that in the absence
of any reference to section 22 of the Limitation Act in Order 30, Rule 2, Code
of Civil Procedure, 1908, it would not be proper to apply it to the disclosure of
names. The omission to sign the plaint by one partner was allowed to be cured
in a case from Himachal Pradesh,' on the ground that this was not a case of
addition of new 'plaintiff.

21.7. A peculiar situation arose in a Patna casef where the names of only
two out of ﬁve partners appeared in the certiﬁcate of registration andthe remain-
ing partners were sought to be added as proforma defendants after the expiry
of the period of limitation. By harmonious construction of section 69 of the
Partnership Act, Order 30, Rule 1, of the Code of Civil Procedure and section
22 of the Limitation Act of 1908 (corresponding to present section 21), the court

. allowed the application on the ground that the provisions of section 22 of the
Limitation Act 1908 were not attracted in such a case.

21.8. The enabling powers of this proviso have been utilised for the beneﬁt Newly added.
of the party who, on account of a bona ﬁde mistake, had failed to add a neces- Efﬁfsﬁa' by
sary party to a suit. In Madrasi the courtiallowed the plaintiﬂ.' to bring on re- Courts.
cord the legal representatives of a defendant who had died on or before the date
of ﬁling of the suit,--which fact was not within the knowledge of the plaintiff.

II. Joint Famiies

21.9. Even though the newly added proviso to section 21(1) takes care of Jpint 'I-Iindu
such contingencies where the plaintiff has inadvertently forgotten to implead a1§3ﬁ";'1f;'or
'necessary party, it must be conceded thatsuits by or against joint Hindu families against-_

form a class by themselves and need an express provision. The legislative history 1]1'i':%:fE_"v°
of this section throws considerable light as regards the thinking on the subject
'even in 1907, when the draft Bill which led to the Limitation Act, 1908 was

circulated for comments.

21.10. Mr. H. S. Phadnis, Acting District Judge Khandesh, while commen-Commcnt-1907 2
ting upon the newly added sub-section (2) to section 21 exempting certain cases
from the operation of sub-section (1), observed' that at the end of sub-section
(2). the following words should be added":--

'Mohideen v. V.0.A. Mohamed. A.I.R. 1955 Mad. 294.

3BhaI'ro Bux Mangilal v. Deokaran, A.I.R. 1934 Calcutta 253. (para 21.3, supra).

3Firm Narain Das V. Anand Behari. A.I.R. 1958 Madhya Pradesh 408.

'Biiai Ram V. 1121' Ram, A.I.R. 1955 HP. 57.

5Chaman Lal v. Firm New India Traders, A.I.R. 1962 Pat. 25.

'Ramamurthi V. Karuppa Sami, (1979) 1 ML}. 298. .
_ _7No. 2751 dt. the 30th November, 1907, National Archives File relating to the Indian
limitation Act 1908.

10-14 M of L1 & CA/ND/33 -

Comment
Nasilr. '

Comment-

Bombay High
Court.

ved:

89m REPORT or mxv COMMN. or INDIA ON THE LIMITATION ACT, 1963,
(Chapter 2l----Sr'c~Iion 2l--~Addifion or SIIb.m'1Im'on of Parties.)

"Nor to a suit by or against the members of a joint Hindu family to enforce
a joint family right or liability, where one or more of the members being
originally omitted are brought on record in the course of the suit at the
instance of either party." 1

Explaining the reasons in support of his proposal, the District Judge obser-

"By reason of improved facilities for travelling and other courses, diﬂerent
members of a joint Hindu family are now-a-days generally found living in
different places. A joint family creditor, being unaware of the existence
of the whereabouts of a particular member. often omits to make him a
defendant. Or, in a suit by the family, the resident members may omit to
join another member living in some distant 'place as a co-plaintiff, under a
bona ﬁde belief that he was not a necessary party or that he had no
active concern in the debt sued for. It is distinctly hard that in such cases a
just -claim should fail simply because one of the members of the family is
brought on the record after the expiry of the period of limitation. The
proposed addition seems desirable to meet cases of such hardship, vide
Nooranji V. Mon' Covanj' where it is laid down that in a suit in respect of
the property of a joint family it is essential that all the persons who compose
the family should be joined as party plaintiffs."

21.11. In the comments in 1907' Mr. B. C. Kennedy, District Judge, Nasik

pointed out the inequities of the section?

. sarily fail as against all three.

well-versed in Hindu Law as prevailing" in the Bombay Presidency, desired that _

the
the

"There is a general feeling that it is inequitable that when A;B.C. are joint
obligees and the suit is broughtwithin time against A and B alone and C is
subsequently added after the limitation period elapses the suit must neces-
It is fiyequently the case that the existence
of C is not known till after the Limitation period expires. It should be
in the discretion of the court to allow or not allow C to be brought on the
record even after the statutory period. The High Courts 3 ' differ in their
views as to the present state of the law."

21.12. Honourable Mr. Justice Knight of the Bombay High Court, being

suits brought by a manager of a Hindu joint family should be exempted from
purview of section 21 ( E} of the Act:

"I advocate the addition of a clause to the following effect:

(3) Nothing in sub-section (1) shall apply to a case where a party is added
by the direction of the court, <

or where the addition is made for the protection of the opposite party
against the separate advancement of the same claim by the party so added,
and the claim itself is not modiﬁed or extended by such addition."

"The ﬁrst of these two paragraphs will embody the case law' in the Act,
at least so far as added defendants are concerned. The object of the second
paragraph is to protect claims brought by the manager of a Hindu Joint
family who has omitted to join all his co-parceners as co-plaintiffs. Ac-
cording to Hindu ideas, though not according to the law as laid down in

-§No0ranI'i v. Mon' Govanﬁ 9 Bom. L.R_ 1126.

'S. 16 dt. 4th December, 1907, National Archieves ﬁle.
"All. XIV, 524.

'Calcutta XXVII, S40.

5I.L.R. 12 Cal. 642, 24 Cal. 640 and 27 Cal. 540.

Select Committee, for some obscure reasons thesuggestions were not incorpora-

89rH REPORT or LAW CUMMN. or INDIA ON THE LlM1'l'A'l'lUN ACT, 1963
I (Chapter 2l----Secti0n 21--Addition or Substitution of Parties.)

our courts, a Hindu manager is competent to institute suits on behalf of
the family; and there does not seem to beany good or equitable reason for
allowing a defendant to escape from the payment of a just debt by a techni-
cal plea of non-joinder. The Hindu sentiment the exemption suggested
will assuredly commend itself; and it is not easy to see why others should

objec .

Suggestions not
incorporated
in 1908.

21.13. Though these comments were tabulated and duly placed before the

ted in the Bill.

21.14. This resulted in avoidable litigation and conﬂict of opinion amongst Privy

various High Courts which was ultimated settled by the Privy Council in 1911.'E,fa':'e"°"
Three managing members of undivided Hindu joint family where the plaintiffs in '
a money suit who sought to bring other members of the family as eo--plaintiffs

after the period of limitation.

Holding that the amendment was not fatal to

the suit, the privy Council observed --

thus given has been followed', by the High Courts.
insisted5 that the plaint must show that the suit was by the present managing
member as managing member,

"The Indian decisions as to the powers of managing members of an un-
divided Hindu joint family are somewhat conﬂicting. It is, however, clear
that where a business, like money lending has to be carried on in the
interests of the family as a whole, the managing members may properly be

t entrusted with the power of making contracts, giving receipts and compro-
mising or discharging claims ordinarily incidental to the business."

21.15. The law was re-aﬂirmed by the Privy Council in 19143 and the lead Description
But the Patna High Court of the
plaintilf as
managing
This view was not followed by the Bombay member-

High Court' which ruled that the plaint need not contain a statement or indica-
tion to the effect that the plaintiff was suing as a manager.

concerning' the affairs

21.16. In the Privy Council decision' relating to the position of _suits ﬁled Gm of

of a joint Hindu family and the addition of parties in WVY .
Council

such suits,_two propositions seem to have been laid down with reference to sec- mung
tion 21 of the Limitation Act of 1908, corresponding to section 21(1) of the
present Act; '

(i) The manager of joint Hindu/family is entitled to sue in his own name
on behalf of the family, without joining the other members of family,
where the suit concerns attairs of the family.

(ii) If /the other members of the family are later impleaded on the objection
of the defendant, but by that time limitation has already run out, the

plaintiff is nevertheless entitled to a decree.

To put it more brieﬂy, in the case of a Hindu Joint Family, the manager

sufficiently represents the family where he acts in the interests of the family,
the other members will be bound by the result of the litigation, and the addition

All.

llmdad Ahmed V. Pabiira Parlap Narain (1910) I.L.R. 32 All. 241 (RC).

2Kishan Pershad V. Har Narain Singh, (1911) I.L,R, 33 All. 272 (P.C.)_

3SI1eo Shdnkar Ram v. Jaddo Kunwar. (1914) l.L,R_ 36 All. 383 (P_C.).

'lggnwari v. Seklirai, A.I.R. 1931, All 585; Chetan Singh v. .Sattal Singh A.I.R. 1924
9 .

5G1':-war v. Makbulunncssa A.I.R. 1916 Patna 310.

'Medgauda v. Halappa, A.I.R. 1934 Bom. 178.

"Kishan Prasad. supra.

Amendments
needed to .
suits
concerning
alfairs of

a Hindu

family. '

Position
regarding
Order 30
Born. Rule 10
C.P.C.

Qate of_
impleadmg.

Three
diiferent
interpreta-
tions.

89m REPORT or LAW COMMN. or INDIA ON THE LIMl'l'ATl0N ACT, 1963 '
(Chapter 2l--Secti0n 21--A ddition or Substitution of Parties.)

of the other members .at a later stage would not be material in regard to the
issue of limitation, such addition being regarded more as the addition of proper
parties rather than the addition of necessary parties. '

The situation of defendant's objection in regard to a' joint Hindu family is
illustrated in another Privy Council case' also. Subsequent rulings are con-
veniently collected in a Madras case? The Supreme Court has ruled' that failure

to describe oneself as a 'manager' in the plaint is not decisive of the question

whether the suit was instituted by him in his capacity as a manager, this will
depend upon the circumstances 'of each case. It could well be that the suit
is instituted by the Manager in his personal capacity or it could be that he
represented the family. The Supreme Court summarised the law as follows:----

"In a suit by the manager of a joint Hindu family for enforcement of a
mortgage, an adult member who is interested in the mortgage security, is
not a necessary party though he can be joined as a proper party; and failure
to join a person who is a proper party not necessary party, does not affect
the maintainability of the suit nor does it invite the application of section
22, Limitation Act."

21.17. In the above position we recommend that suitable words may be
added in section 21 (2) on the above point. The amendment that is being re-
commended' is merely intended to codify the well understood position as to
suits_concerning the alfairs of the Hindu Undivided Family to which the managing
member of the family is a party.

21.18. It may be incidentally mentioned that under Order 30, Rule 10, as
amended in 1976, a Hindu undivided Family carrying on business has been equa-
ted with a ﬁrm for the purposes of the rules contained in that order. But even
before that amendment. the Bombay High'Court5 had allowed the substitution of
the names'ofp the co-parceners in regard to what was admittedly a joint family
business, on the ground that it is no more than a correction of mis-description,
and not an addition of a party'. V -

III. Eﬁective Date

21.19. We now come to one point of detail. In section 21(1), it has been
provided that the suit shall, as regards the added party, be deemed to have been
instituted when he was so made a party. The expression "when he wasjso
made a party" has given rise to three different interpretations.

21.20. The first view is to the effect that a person becomes a party only
when he is actually brought on the record as party. The Madras judgment' on
the subject observes as under:----

"It cannot be said that a suit is instituted, if the plaintiff, who wants to
ﬁle it in court, puts it into his drawer or keeps it in vakils' chambers. In
the same manner, when a person is sought to be added as party, the person
becomes a party only when he is actually brought on record as a party."

llmdad Ahmed v. Pabitra Partap Narain (1910) I.L.R. 32 All 241 (P.C.).

'~'Venkatanarayana v. Somragu. A.I.R. 1937 Mad. 610.

3Devidas V. Shrishailappa, A.I.R. 1961 S.C. 1937.

'See para 21.34 irifra. +

5Ram Prasad v. Shrinavas, A.I.R. 1925, Bombay 525, 527.

"See further Law Comnlissirm of India, 54th Report, (Code of Civil Procedure 1908}

Chapter 30.
'Ammayya v. Narayana, A.I.R. 1925 Mad.

89m. REPORT or LAW C()MMN. or mum ON THE LIMITATION ACT, 1963

(Chapter 21--Section 21--Additi0n or Substitution of Parties.)

The reasoning in the Madras case is, with respect, obscure because an appli-
cant who wishes to add other persons as parties has done all that is in his°power
by ﬁling an application in court. The analogy of keeping the plaint in the
vakils' drawer does not appear to be exactly applicable.

21.21. The second view on the subject is that a diligent applicant who had
applied withinithe period prescribed should not suffer merely because the court,
for some reason or other, cannot, or does not, give him the relief within the
period. On this principle it has been held by the same High Court' that a new
person is made a party not on the date of the order of the court directing to
implead him, but on the date of the application to implead.

21.22. A third view has been propounded in a Patna casei, The ratio of
the judgment seems to be that the limitation in relation to claim as against the
newly added defendant commences from the date of service of the summons on
him. Reliance has been placed on Order 1, Rule 10(5), of the Code of Civil
Procedure 1908 which speaks of the service of summons as the date when pro-
ceedings are deemed to have started. But the judgment also'contains a sentence
to the effect that the suit shall be deemed to have been instituted against the
newly added defendant "when he was made a praty to the suit".

21.23. In view of the relative uncertainty of the position and to avoid any Naed for '/
controversy on this point, it is desirable that a suitable explanationi' should be3m°ndm°1"5-

i added to section 21(1) to make it clear that the date of the application for im-

pleading a party will be deemed to be the date from which section 21(1) becomes
effective.

IV. Misdescription

21.24. We now turn to cases of misdescription of parties. The Railway R31-ﬂways and
Administration being .the largest net-work of public utility, a number of cases are lb? i55'-'"1 °.f
ﬁled against the Railways for tort or breach of contract, arising out of their misdescription'
function as carriers of goods and passengers. Owing to inadvertence of the
counsel, the suits against Railways often contain a misdescription of parties and
prayers for amendment to correct the mis-description have been agitated right,
unto the higher courts.

21.25. In a' Calcutta' case', the suit was against the Railways for non~delivery case jaw,
of certain goods. In the plaint, the name of the defendant was given as "Agent
of the Bengal Nagpur Railway Saheb Bahadur". An objection was taken that
the frame of the suit was bad, being in contravention of the provision of Order
29, rule. 1 and Appendix A to the Code of Civil Procedure, 1908. The plaintiff
applied for leave to amend the plaint. Reliance was placed on a decision' in
which the Bombay High Court had (under similar circumstances) allowed the
correction of the clerical error. However, the Calcutta High Court refused to
allow an amendment and -distinguished the Bombay case by observing that even
though, in the Bombay case, there was a mis-description in the title of the suit,
the plaintiﬂ' therein had made suﬂicient averments to make it known to the

defendant that he was seeking relief'against the Railway administration, and
not against the Agent. "

'Trustees of Port of Madras V. Good Year India. A.l.R. 1973 Madras 316.
'~'Indu Blmslmn v. Hare Ram. A.l.R. I972 Patna 229.

3For a draft see para 21.34 infra.

'Agent B. N. Rly, v. Behuri Lal Dun. A.l.R. 1925 Cal. 716.

5Saraspur Mfg. Co. v. B. B. & CI.Rly., A.I.R. 1923 Born 452.

Deity.

Summary of
the position-
no change

recommended

as to. rr_1is-
description,

Appeals and 4

the addition
of parties.

2 of course, outside section 21, Limitation Act.

89TH REPORT or LAW COMMN. or INDIA ON rue LIMITATION ACT, 1963
(Chapter 2l----Section 21--Addition or Substitution of Parties.)

21.26. Same fate was met by the plaintiff in a Patna case'. But the Madras
High Court" 'held that a notice claiming damages for loss of goods in railway

transit which was sent to the Member-in-charge of the Railway Board was good_

and the mis-description in the plaint was allowed to be corrected. The court
quoted from the Report of the Civil Justice Committee regarding the proper
function of procedure.

"Procedure is the machinery of the law after all------the channel and means'
whereby law is administered and justice reached. lt strangely departs from
the proper otlice if in place of facilitating it is permitted to obstruct and

even to extinguish the legal rights and is thus made to govern where it'

ought to subserve."

21.27. Apart from cases involving Railways, a niis-description can also take
place while ﬁling a suit against a deity. In a Calcutta case," where a suit for
possession was ﬁled against the shebait and there was nothing in the plaint to
indicate that the plaintill was proceeding against the deity and not against the
shebait, it was held that section 22 of the old Limitation Act of 1908 applies and
so far as the deity was concerned the suit was barred'.

21.28. A review of the above case law shows that the courts, in their anxiety
to see that a plaintiff does not get non-suited merely because of bad 'drafting of the
plaint, have been scanning the entire plaint to see whether the averments therein

manifest, at some place or the other, the person who has been really the plaintiﬂ. ,

Here again, this exercise may prove to be futile in the case of a plaintiff who (no
doubt, erroneously) believes that suing the Manager or Agent of the Railway is
tantamount to a suit against the Railway administration, or that ﬁling a suit

'against the shebait or pujari of the temple is equal to ﬁling a suit against the

religious institution (i.e. the institution of which the natural person is shebait or
the pujari).
section 20(1) so as to include cases discussed above. Ultimacly, it will have to
be left to the good sense and judgment of the courts as to when the -proviso
should be pressed into service.

V. Appeals and applications.
21.29. Under 0.41, r. 20 C.P.C. an appellant must implead all the parties

"within limitation. However 0. 41, r. 20(2), C.P.C. gives power to the court to

allow the impleading of a party after the expiry of limitation. The case is,

.7
The position may be considered in some detail. A suit is instituted (in an
ordinary case) when the plaint is presented to the proper oﬂicer under section 3(2)
(a)(i); (Other sub-clause of section 3(2) deal with a suit by a pauper and a
suit against a company). Now, what section 21(1) provides is that, if, after the
"institution of a suit" which is deﬁned in section 3(2)(a), "a new party is added,
etc.", then, as regards that new party, the suit is deemed to have been instituted
when he was so made a party (subject to the proviso). In this manner, section
21(1) modiﬁes section 3(2)(a) and makes it necessary for the plaintiff to show
that even on the date of impleading the new party, the suit is within time.

21.30. It would be of interest to mention, in this context, that in one of
the decisions of the Patna High Court, the following observations occur regarding
section 22 of the Act of 1908 (corresponding to present section 21):

Q 'East India Rly Ca V. Ram Lakhan, A.I.R. 1925 Pat. 37. '
"G.C.-in-Council v. Sankurappa, A.l.R. 1953 Mad. 838. \-
"Pravakar Roy v. Bibuti Bhushan, A.I.R. 1957.011. 177.

However, it would be an arduous task to re-draft the proviso to

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963

(Chapter 2l---S('l('ll'()l1 21- --/tdr/[lion or Snbstitmiorz of Parties.)

"If it were not for section 22 of the Limitation Act (1908). it Could
not-be urged that 'a suit. as regards the added party should be regarded as
having been instituted when he was made a party'."

21.31. Coming concretcly to the position relating to appeals, Order 41, rule
20 of the Code of Civil Procedure. 1908 (as amended in 1976) reads as under:----'

"20. Power to adjourn hearing and direct persons appearing interested to be
made respondents. '

(1) Where it appears to the Court at the hearing that any person who
was a party to the suit in the Court from whose decree the appeal is pre-
ferred, but who has not been made.a party to the appeal, is interested in
the result of the appeal. the Court may adjourn the hearing to a future day
to be ﬁxed by the Court and direct that such person be made a respondent.

g (2) No respondent shall be added under this rule, after the expiry of the
period of limitation for appeal, unless the Court, for reasons to be recorded,
allows that to be done. on such terms as to costs as it thinks ﬁt."

21.32. I would thus appear that as regards the addition of parties to an
appeal, where the case falls within Order 41, rule 20, that rule takes care of the
situation and we do not consider it necessary to suggest any provision in Section
21.

21.33. As regards applications, would seem that although section 3 of the Applications

Limitation Act speciﬁcally deals only with applications made in the High Court
by notice of motion, the principle would be the same regarding applications in
general, namely, it 'is enough if the application is made within time as on date
of presentation to the proper officer of the court. The case law at present does
not regard section 21 as applicable to applications. It has generally been re-
cognised that if section 21 is regarded as applicable to applications, it would
beneﬁt the opposite party and not the applicant. The most important case is
application for execution. to which also section 21 does not, at present, apply.

4'
21.34. It is well-established that section 22 of' the Act of 1908 (correspond-
-, ing to present section 21) did not apply to applications, so that the addition of a
party during the pendency of the application does' not necessarily mean that as
regards' him, the application will be taken as ﬁled only on the date of the implead-
ing of 'that party. This principle has been laid down by decisions of the High
Court of Calcutta. Judicial Commissioner of Nagpur and High Court of?-"
Patna.

21.35. In a Kerala case', present section 21 has been held to be inapplicable
' to a petition for revision. '~

\/ _, \
21.36. We think that section 21(1) should be amended so as to bring appli-tAplI;1iC§ti0nsh
cations within its scope by an express provision. This will settle the position. "ifithfn mug t
section 21.

'Chandrika R0)' v. Ram Kuer, A.I.R. 1923 Pat. 88.

zlndu Bhushan v.'Hari Chartm, A.I.R. 1931 Cal. 385, 387.
3Amolakrao V. Govindrao, A.I.R. 1919 Nag. 150. I
'Gulab Kuer v. Syed Mohammed Zaﬂar, A.I.R. 1921 Pat. 180.

5Chandrika Roy V. Ra mKuer, A.I.R. 1923 Pat. 88.

"See also Zahurul Hussain v. Badi Narain, A.I.R. 1930 All. 591.

7Rugmani v. Challappa Rawther, (1969) Ked. -L.T. 789.

-- _ Recommendation. _

Section 22-
continuing
breaches and
torts.

History.

89TH REPORT or LAW COMMN.0F INDIA on THE LIMITATION ACT, 1963

(Chapter 2l--4Sect/'on 2l-~ Addition or Substitution of Parties)
(Chapter 22-«Section 22--Continuing Wrongs)

VI. Recommendation

21.37. In the light of the above discussion. we recommend that section 21

should be revised as under:

Revised' section 21

21. (1) Where, after the institution of a suit, or the making of an
application, a new plaintiff or applicant, or a new defendant or respondent, as
the case may be, is substituted or added, the suit or application shall, as
regards him, be deemed to have been instituted, or made, as the case may be,
when he was made a party ;

Provided, that where the court is satisﬁed that the omission to include
a new plaintiff or application or a new defendant or respondent, as the case
may be, was due to a mistake made in good faith, it may direct that the
suit, or application as regards such plaintiff or applicant or defendant or
respondent shall be deemed to be have been instituted, or made, as the case
may be, on any earlier date. "Explan.-ation.--For the purposes of this
section, and subject to the provisions' of the proviso to this sub-section, a
person is deemed to have been made a party was the application for making
his a party is made to the court.

(2) Nothing in sub-section (1) shall apply----

(a) to a case where a party is added or substituted owing to assign-
ment or devolution of anytinterest during the pendency of a
suit or application, or,

(b) where a plaintiff is made a defendant or an applicant is made a
respondent, or

(d) to a suit or application by or against the members of a joint
Hindu family to enforce a right or liability relating to the
affairs of the joint Hindu family, where one or more of the
members of the family, not being originally impleaded, is in

\ the course of the suit or application, brought on the record at
the instance of the other party."

CHAPTER 22 ,
SECTION 2.2: CONTINUING WRONGS

22.1. Section 22 provides that in thecase of a continuing breach of contract

or in the case of a continuing tort', a fresh period of limitation begins to run at
every moment of the time during which the breach or the tort, as the case may
he, continues. The object of the section is to enable the injured party to wait
for so long as the breach or the wrong is persisted in and then to bring a suit
to recover all the damage he may "have suffered, instead of being compelled to
bring innumerableseparate suits, one after' the other".

22.2. Section 23 of the Act of 1877, which dealt with the subject, ran as

under : --

'Compare section 2(m)----;deﬁnition of tort. '
'Secy. of State v, Venkayya, (1977) I.L,R. 40 Mad. 910, 920, 921.

I ' 115-14 M'or Ll & CA/NDl83

89rH REPORT OF LAW COMMN. OF Imitn ON THE LIMITATION ACT, 1963
(Chapter 22-~Section 22--~C0ntinui'ng Wrongs.) '

'"23. In the case of a continuing breach of contract and in the case of a
continuing independent of ("0nfI'[lC'Y, a fresh period of limitation begins to'
at every moment "of the time during which the breach or the wrong, as the
case may he, continues." ,

22.3. This section was continued verbatim as section 23 of the Limitation
Act, 1908. \

'When the draft bill for the Act of 1908 was circulated for comments, the '

section came to be noticed in a .rather oblique way._ Article 35 of the Limitation
Act of 1877 provided for a period of limitation of two years for a suit for restitu-

7 tion of conjugal rights and provided (in the third column) that the time would
begin to run when restitution is demanded and is refused by the husband or
wife/, being of full age and sound mind. '. . '

\ .

22.4. Dealing with this article, the Statement of Objects and Reasons anne-
xed to the Bill of 1907 stated as under:---- A '

"Article 35. of -the Act is also proposed to be omitted.

"The scope of this article is very limited. It does not apply to cases arising

under the Indian Divorce Act. The Allahabad High Court has held' that

re , it does not apply to Hindus or Muhammadans, as 'their personal law does,not
1 require an antecedent demand to sustain a suit. for restitution of conjugal
rights, nor make restitution unenforceable against' a minor, and it has further

held that the withholding of conjugal rights by either party is a continuing

wrong, and that a claim for restitution cannot be barred by Limitation:

Binda V. Kausilia, I.L.R. 13 All. 126, 146. The same view was taken in Bai

\ Sari v. Saukla, I.L.R. 16 Bom 714. _ Those views/have been so far modiﬁed
by the rulings of the Calcutta and Madras- High Courts and by the later
rulings "of the Bombay High Court as to make the article applicable to
'Hindus ,and Mohammadans in cases of suitsepreceded by demand and' refu-
. sal as mentioned in the third column; Thunifibhoy v. Hirabai, I.L.R. 25 Bom.
V I.L.R. 28 Mad 436. The operation of the article may be easily avoided by .a
644 R.B.; Asirunnissa v. Bugloo, I.L.R.' ',3§l-M Cal. 79; Satravanal V. Poovavif
party if he simply refrains from making a demand which, it may be noted,

1 is not, under the Hindu or Mohammadan Law, necessary to give rise to a
A cause of section. It is a very usual thing in Hindu and _Mohammadan

families for a wife to go and stay with her parents or rothers and the effects
of this article is that if owing 'to any domestic quarrel the wife should in i

a._ﬁt of temper refuse to return, the husband would be compelled to take the
A 'matter into court within two years." -

22.5. The Government Pleader', Assam Valley Districts, and the Judge' of"

7 the Assam Valley Districts, while commenting on the Statement of Objects 'and
'Reasons quoted above, .noted as under3 :-- t '

,1 ','It appears from Objects and Reasons under Article 35 that the Legis-
lature would adopt the suggestion (made in I.L.R. 13 All. 126, 145) that
withholding of restitution of conjugal rights is-a continuing wrong. In a

recent'Calcutta case (11 C.W.N. 437) it has been held that section 23 (now ~

« section 25V).does not apply to such a case, In View of this decision of the
\_ J Calcutta High Court, the intention of the legislature should be made clear
' ' by an illustration." 2 I I

1Babu Kali Charan Son.
' "Mr. W. B. Brown. '
/ 3011 3rd September, 1907----National Archives File.

* Report

Lawlcornmission
on the':
Act of 1908;

' 9

Actjof 1963. g .

Defectin '
the present.

A ' 1ang'uage.~

Violations

' of statute.

' does not cover breach of trust or violationof statute.

x violationsof statute.

89TH REPORT or LAW COMMN._ or INDIA' ON THE LIMITATION ACT, 1963

(Chapter 229 Section 22,--CoritinuI'ng Wrongs.)

' "22.6."'I',his omisison. of article 35 of rife Act of 1877 from the Act of 1908
was noticed by Wazir Hasan A.J.C. in an Oudh case', in which a comparison
I was drawn: between the cause of action' for a suit for restitution of cdiijugal
~' rights' and that for dissolution of marriage. .It was observed that 'in the former
'case thecause of action is founded on a breach of contract of marriage, in which
the breach continues so long as' the person of the wife is withheld from the
husband, while, in the latter case the residuary article 120 (of the Act of 1908)

' applied;

22.7. Section 23 was not disturbed in 1908. The Law Commission in its
Report" on the Act of 1908 recommended expansion of the concept of "tort",

- and had suggested a draft clause which ran as'under:--

"21. Continuing breaches and wrongs'.--'In the case of a continuing
breach of contract and in the case of a continuing wrong independent of
contract, a fresh period of limitation begins to run at every -moment of the
time during which the breach or the wrong, as the case may be, continues."

'The Law Commission 'had also recommended that the' expression "tort"
'should be deﬁned to include "all civil wrongs independent of contract."

22.8. However, in section 22 as it emerged in its ﬁnal form in the Act of
1963, the words "continuing wrong independent of contract" have been substi-
tuted by the words "continuing tort".

Commission3.. ,

22.9. The language used' has introduced a deﬁciency in the section. The
Law Commission had recommended inclusion of all continuing wrongs in "t c
section, but, in the present language (read with the deﬁnition of "tort") section 22

22.l0..We have considered the matter carefully. It appears that there is no
reason for excluding from section 22 continuing breaches of trusts or continuous
No doubt, section 10 gdoesgtake care of certain breaches of
trusts; but the topic under discussion is_of cjontiraying wrongs. It is proper that
. section 22' should cover all continuing virongsrcontractual and non-contractual.

The word "wrong" can be given the widest possible connotation, and would. 2

include infringement of trade marks or dtherforms of intellectual property, viola-
tion of easements [and breach of statIIt'ér3i'di1ty.. In a Punjab case', the ﬁxing
of a Persian wheel over a well which ;.."wa1s;'t?I the enjoyment of the other co-
owner was held to amount to a continuing Similarly, in a Lahore case',
it was held (disregarding the technical aspedfthat under Muslim Law, marriage,
being a civil contract, the husband's .,impotency was a continuing breach of
contract of _ marriage. As section 22 Qemtgodies a general enunciation of" the
principal of continuing wrongs, we are of the' view that it would be desirable to
put the matter beyond any doubt. A '

_ ;Mad. Hgmzgiullah Khan _v. Mt. Bakhurljahara Begum A.I.R. 1922 Oudh 109.

_ Law C0l'l'll'l'llSSlOl'l of India, 3rd Repdrt (L1m1ta.t1on7--A'ct, 1908) page 12, paragraph 20,
base 5. paragraphs 10 and' 11, page 10. paragraph 14' and Bill' at page 72, Clause 2(3);
page 73, clause 201) and page 82 clause (21), _ '

3paragraph 22.7 supra. '
vhogrtzn §'ingh'v. Sohana, A.I.R. 1950 East Ptﬁ.1ia_b 21.
'SchIb,Zmaa V. Abdul Ghafoor, A/_I_R. 1959 I_;ah1Qre'454,

1
1

The deﬁnition' of "tort" in section 2(m)'
deﬁnes it as a civil wrong which is not exclusively the breach of a contract or»
breach of trust. This is not the deﬁnition that was recommended by the Law

~ , . 'See _Dw _kanath v. Corporation of Calcrdtlﬁ

891'!-I REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 g '75

v (Chapter 22--~Seclion 22--- Contirzaing._Wrongs.)k
(Chapter 23--Sectioit 23----Acts not Actionable without Special Damage.)

22.11. Accordingly, section 22 should be revised, so as to make it clear Ne"; to

that the section is not limited only to breaches of contract or torts (as deﬁned :Velcd§:ﬁ"t1;
.in the Act), but covers all continuing wrongs. ' cover all
wrongs.

22.12. It" is also necessary to refer to anotherjaspect of section 22, which Relief claim-
ﬁgures in a recent Madhya Pradesh ruling'. That ruling seems to assume that.;mma,¢ﬁal_
section 22 (continuing wrongs) is conﬁned to suits to: damages and does not, in -'

-'terms, apply to suits where the relief for prayer is an injunction. Of course,_

in that case, the court did hold that the cause of action for a'suit for an injunction

restraining the defandants from (illegally) recovering a sum of money from the

A . plaintilf arjses every time a threat of suchrecoverzy is made. However, to avoid
recurrence ofpsuch a controversy, we think thatit 'should be made clear by an A-

express provision that section 22 applies, irrespective of the nature of the relief
vclaimed for the continuing wrong. . - '

x 22.13. In the light of the above discussion,'.we recommended that section 22 Recommendation
shouldgbe revised as under:-- '

Revned secti0n 22 V
I "22--Continuing Wrongs.---In the case-'of a continuing 'breach of con-
tract and in the case of a continuing wrorg "independent of contract, a fresh

period of limitation begins to run.at every moment of the time during which
-thebreach or the wrong, as the" casensay continues.

'iExp{arzation.--This section. applies whatever he the relief claimed."

, '' CHAPTEI; 23 L '
SECTION 23: Acrs NOT At:r1orsAsLE WITHOUT
SPECIAL DAMAGE

23.1. Section 23 provides that in the of a suit for compensation for an section 23.,
act which does not give rise to a cause of action unless some "speciﬁc injury" ndt
actually results therefrom, the period of 1iinitat§it)n shall be computed from the '.',°,-,',i,°.f,'.','2'§°'l,,dj,1 .

'\ time when the injury results. In a sense, .it modiﬁes the.general rule. damage.

The general rule is that "Limitation runs from the earliest time at which an
action could be brought". Accordingly, tsimei-would, in general, run from the
occurrence of the act of omission complained .of,§'and not from the time when the
consequential damage causes. However. véhere speciﬁc damage is itself the gist
of the cause of'action3, this general rule " reqiiires qualiﬁcation. Time should
commence to run only when the damage actually 'results, because the right to sue
arises only then.' ' ' I

23.2. The history of the section is of some relevance and may be brieﬂy dealtrh

, V _ e'Ai:e of _
with. Section 24 in the Limitation Act GS of 1871) ran as under:-- .l87T'"n;d
, , illustnsmons
' to section 24

"24. In the case of a suit for compensation for an act which does not of that Act,'
give rise to a cause of action unless some speciﬁc" injury actually results
_therefrom, the period of limitation shall be computed from the time when
the injury results. ' '

f '\

; 1Moh¢_mlal,V v. State of M.P., A.I.R. 1980 M.P.h~(F.n;9' -
'\ ' 2Reeva.§.bv. Huldier, (1891) 2 QB. 509, 511. .9
X 'of; am 1416 (compensation for slanrhr). ' '

').1§..R.; 18 Cal. 91, 99;
/V . / _ N} k L '

gm.»

(3) of section .
24 of the Act
of 1877.

» Comment

..{;s'"'?a3*"_fiso7x

, lof
heetionmton
.

. .

89111 REPORT or LAW COMMN. or INDJX on 'rm; LIMITATION ACT, 1963 (Chapter 23---- Section 23---- Acts not Actionable 'without Special ' Damage.) Illustratior/is A

(a) A owns the surface\of a ﬁeld.' B owns the subsoil. B digs. coal"

tliereout without causing any immediate apparent injury' to the '=1, surface, but at least the surface subsides. The period of' limitation ( in the case of a suit by, A" against. B runs from the time of the ' subsidence. A - -

(b) themselves without special damage caused thereby. C in conse-

quence refuses to employ B ashis clerk. The period of limitation in the case of a suit by Bagainst A for compensation for the sland- er does not commence till the refusal." C x 23.3. Illustration (a) of the above section 24 (Act of 1877) was probably dic-

'tated by the facts of a House of Lords Judgment', in which A was the owner of certain houses standing on land which was surrounded by the lands of B, C- _ & D. E was the owner of mines running underneath the lands of all these per-

sons. E workedthe. mines in such a manner (without actual negligence) that the lands of B, C and D sank in; and, after more than six years' interval, their sink-

ing occasioned an injury to the houses of _A. It was held that a- rightpof action . actually occurred.'and that his right was not _ accrued to A when this injury barred by the Statute of Limitations.

This view was aﬂi-rmed by the House of Lords in a later casei, in which it 'was held that the cause of action in respect of "further subsidence' did not arise "till the subsidence occurred and therefore, the injured party could maintain an action for the injury thereby caused, althoughfjmore than six years had passed since the last working of the coal mine. L 23.4. We now come to illustration (b) to the Act of 1877. When the,draft of the Act of 1908 wasicirculated for comments,~Sir Lawrence 0. Jenkins, 'Chief A speaks and publishes of 'B slanderous 'words not actionable in.

Justice of the Bombay High Courti, suggested the omission of illustration (b).

as "it may "be open to question whether special damage is necessary in India". This was in the context of slander'. I ' _ I 23.5. Acting upon this suggestion, the ;Act_o.f 1908 did not repeat illustration (1)). When the Act of 1963 _was passed, even illustration (a) was omitted,' in con- formity with_ the general recominendation of\the Law Commission to omit illus- trations'. ' . --

23-6. There is a controversy on the question whether thesection, in terms ' applies also to suits based on contract, or whetherxit is conﬁned to suits based on torts. ' j - - -

,The Rangoon High Court consistently' held that section 24 applies only -to . suits based on torts.

However, the Allahabad High' Court'?! Hseemsé to have taken a somewhat wider' vjew and the following observations of :Arslf1worth J. are 'worth quoting :

Isacichouse v. Bonoriri (1861) 9 H.L.C. 503.. ' "Barley 'Main Colliery Company v. Thomas Bilfried Howe /Illitchell, (-1866") L.R. ll Appeal Cases 187 (H.L.). * '/ 3N0. 2469 dated 18th Dec. 1907 from the Acting_,Regisuar High Court, Appellate Side gicimbay to the Secretary to the Government, Iudiéitil Dam.» Bombay-----National Archives e_ . , . .

'Cf. discussion as to articles 75-76 (libel 'and fdander), infra. /

5.Law Cormmssion of India, 3rd Rep0tt'(L1itJif;ﬂ.ri1' 1908), pages 4_-5, para 8.

ﬂ _ .

5(3) V. M. Cany v. Loong Ghye, A.I.R. 1936' .

(b) Annamalai Chetyar v. Cowasiee, A.I.R.' , "Kedar;Ng'!h:v. Har Gobind, A.I;R. 1925 . . 60 'See -Kothari & Sons V. Krishna Rj ' "

I :7 .\ 89TH REPORT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 234--Section 23--Acts not Actionable witltbut Special Damage) "Where there is no sum named to be paid in case of" breach of stipulation. b\y way_ of penalty, under Indian Law a mere 'breach of the covenanttby ' ' omission to pay, as in this case, gives no rights to a 'claim for compensation, ~ and the suit will come within the language of} n"i4 of the Limitation Act. I may- mention that the word 'act' in seeti the Limitation Act will include an omission (see section 3(2) of the A "rallC1auses Act, 10 of , A1897). It has been urged that section 24 is Gnlyapplicable to suits based on tort, but no reason appears for holding this."

23.7. The Bombay High Court' while. dealingwithia case in which misfea- sance 'summons had been taken out against the Director of 'a company under sec- tion 235 of the Companies Act, 1913, observed: ' A 'The case of Cavandishﬂentink v. Fann also shows that a misfeasance app- lica 'on, to be successful, must establish. that actual loss resulted to the com- pany Irom~the_..n1isfeasance. But by section 24, Limitation Act, in the case' of a suit for compensation for an act which does not give rise to a right of action unless' some speciﬁc injury actually arises the reform, the period of limitation is to be computed from the time when the injury results .... In this connection I think that 'injury' in section 24 includes a legal injury:

and that the prment application is clearly one for,[e£_>;ﬁ)ensaﬁon', which is ~ the expression used in section 235, Companies 2' "elf- And in so far, if at all, as the case is not covered by section 24».~i "tliink it comes within section 23". ' ' ' 23.8. Meredith J. of the Patna High Court? having' taken stock of the con- troversy on this subject, ultimately observed that 'fthe jbetterpview is that section '24_is applicable in the case of action ex_ contracfti-in proper cases". The case was, however, one in which the breach of contract itself had furnished the cause of "action (and,the aspect 'of 'special damage was not material). ' I 23.9. The matter came up in some other cases"-' in an indirect way, but no concluded view was expressed on the above point.' i

-.3. .

.- _ 23.10. It would appear that in section 23, the use of the word 'injury' inMeanjng of juxtaposition with the expression 'cause of action' indicates that all types of ac- CaU,S€ 0f tions, irrespective of their form, are contemplated.' Holloway J ._ in a Madras case'acu°n' has gone in detail as to what constitutes a j"cause' of action". and observed as .under:' ." A. \ ~ "Parke, B in Nicklin v. Williams, 10 Exch. 259 and Campbell, C.J. in _B9nami v. Backlwuse, E.B. & E. 622, talk of' a cause of action not being , aninjury" to a right, but of consequential dainagesbeing that cause. It is clear, however, that this language is incorrect; and'the- only meaningjn cases inwhich the cause of action is said to arise fromeonsequential damages. is that until that damage, there was no injury atiall. In that same case, Cole- ridge, J. says-----"'I'he right ofaction vests in a party whose rights are injuri- _ ously' affected by the act of another person at the timeewhen the right is so aﬁected. Erle, J.--"A cause or action arises wheh. this right is violated,"

and again, "as a general principle, it is diﬂicult to ®nceive a cause of action from damage when no right has been violated, and no right has been violated, 1Govind V. Rangmz-th, A.I.R. 1930 Bombay 585. j ' ~2Iagat Kishore Prasad v. Parmashwar Singh, A.I.R. 195] E31,. 348 ILR 28 Pat 974. ?Ra'jagopala Naidu V. Aiyyaswamy Chattier, A.I.R. 19,65 Madras: 532. i ' 'Jaganmtth Marwari V. Kalidas Raha, A.I.R. 1929 Patnag245,.' E - . _ ' ' 5Eqstern Traders (I) 'Ltd. New Delhi v. Punjab National' :8" , A.I.R. 1966 Punjab

303.. , « K. _ ,. _ ' gws. yshaian Hams; Singh v. Karson Agency (Indie); 2 1937 Delhi 101. ~7D¢aqu;a v.C'olas ; (1866-67).M.H.C_ 334; 407, . 5; ' X r:

' 'replaced » tune mentioned 78 Need to .

section . -to action on contracts.

'.

\ Section to-

be extended to all wrongs.

. _ , c . an expression needingtobe ' 89rn savour or LAW COMMN. or Innm ON THE LIMITAIION ACT, 1963 (Chapter 23-----Section--23---Acts not Actionable without Special ' Damage-ichﬂﬁfe' . 24»--S:ection 24 Computation of Time) and no wrong has been done," «rind in the Exchequer Chamber, "Wilies.

I.--"the question in this case depends upon what is the character of the?

right". The irifiiiry injthis case was to a right in rem". was not to prevent the defe&l§nt from excavating, but to have his land' In its naﬁnfal state. There was no vinculum' at all until that state was disturbed; 'p _ '_i there was no disturbance until the damage accrued, and at the accruing of the disturbance arose the injury, thecause of action."

1' 2.3.11. From the above discussion it. transpires that the doubts expressed about the applicability of the section to suits based on contracts have been; re- solved by the courts mostly in favour of its applicability. However, in order to obviate, further controversy, on the point, it is desirable to extend the section expressly to suits on contracts.' . ' i x 23.12. In fact, while' making it clear that section 23 is comprehensively and 4 is not conﬁrmed to tort, etc. can also be takenof clarifying that the section applies to all wrongs (for example breach of statute or breach of trust).' 23.13. Another point on which the section seems to require verbal impt'oye- ment relates to the ﬁrds "speciik injury" occurring in the section. The word 'injury' is now-a-days "used in the ,,context of civil liability for the wrong itself (which is a legal concept), whilefthe word "damage" is used to indicatetthe harmful physical consequence of the The section has obviously in mind ' the consequence and from this angle "speciﬁc damage", is better than the present wording "speciﬁc injury". Insfact, the Limitation Act itself (in the articles relat- , Recommendation.

section _24- in . instrument ts.

ing to libel and slander); uses the expression "speciﬁc damage". These words were also used' in illustration (b) to section-2,4 of the Limitation Act of 1877', The * words "speciﬁc injury", therefore, should be replaced by 'fspeciﬁc damage". A 23.14. In the light. of the above discussion, we recommend that section 23 should be revised as under: ' . ' ' R¢risqI.5soeIton 23 "23. In the case of a suit for compensation for an act which does not "give -rise to a cause of action some speciﬁc damage actually resmts therefrom, the period of limitation sha'll'be computed from the.time' when the damage results. i M Explanation.--The this section apply to a wrong wlich constitutes a breach of contract, axralsa to an act which comtt7tutes'a wrong independent of contract." . * , " - i 24 q A sEcr1oN-24: ¢0smJrAnoN or TIME 24.1. Dates or periods of time.for. the performance of 'contractual obliga- '-

tions are often mentioned in instruments reference to an Indian calendarior some calendar other than the Gregorian. In regard to such instruments, gene-

ral rule is enacted in section 24 of the Limitation Act----expressed in the form of .

a ﬁction. The section provides instruments shall, for the H of the Act, be deemed to be made rﬁrence to the Gregorian m 'V"p'a.ragraph23.14,t'nfrafora' i 'K it I ' '

- agraph 23.2, supra.' . . 1 Q,' .g. ' E 3 3 _ «.g\lp« i glﬁents.

\ .

89TH REPORT or LAW COMMN. 'OF. INDIA (in THE' LninTATIoN ACT, 1963 79 j 37 (Ohdpter 24~Section 24---Computation of tz'me--+--Chqpter 25----Sect:'on 25---- ,_ ' Acquisition of Easements by Prescription) effect, by yirtue of the operation of the section, dates or periods mentioned With reference to any other calendar are to be converted into the corresponding dates 'or periods of the Gregorian calendar and the time limits prescribed by the Limi-

-tation Act would be computed on that basis. ~ 7 Thus, for the purposes of the Act, the parties to instrument are d€c* med to have used the terms "year" and "month"s in _ ' sense which they bear 'Ring the Gregorian calendar': The section is not stihjcct _a dilferent intention."-' 24.2. The law on this topic is now rainy' weﬂésettled and the section No chm. appears tocneed no change. ' , I "°°d°d' ' . - A' 1 CHAPTER as sncnon 25: ACQUISITION-0_F EASENMQNIS 3Y~;PRFSCRlPTION 25.1. It is well-known that the running of time has two important facets in Atgquisition _ easements 1aw----the barring of a remedy and the creation or extinction of rights. The lattergy prewwijw has come to be known as "prescription", while the former is known as limita- it. 1 Prescription as creating certain rights (known as acquisitive prescription) V is dealt with in the Limitation Act' in sections 25 and 26, in the context of ease-

, v These two sections apply only to those areas when-_. the Indian Easements _i Act, .1882 (5 of 1882) does not extend'. The reason why; the Indian 'Statute' Book, in two enactments extending to two different areas, deals with the subject of easements is historical. Provisions for themccguisition easements by pres- cription .on the analogy of the English Act" were intmdiréed for the ﬁrst time in India in 1871 in the Limitation Act, 1871, and inthe Limitation ' » Act of 1877. [The English Act on the subject had been regarded as applicable in'. the Presidency towns]. Later, as a part of the plan tor a civil code, the Easements Act, 1882, was passed, b_ut it wasnot app_iied'throughout India in _i ' of_-the reservations expressed by some of the local Governments. Hence, '~ the provisions in the Limitation Act relating» to easements continued to' apply "to areasipwhere the Easements Act had not been appiied, either initially or by subsequent extension. This position continues today. Altlbugh the Law Com- mission, in its Report on the earlier Limitation Act, recommended' the extension of the Easements Act, 1882 to the whole-of India (and repeal of sections 26-27, Limitation Act, 1908) that could not be done, owing?'-_ to' certain constitutional diﬂiculties felt by the Ministry of Law". Sections 26 and 27. of the Act of 1908"

i have been re--enacted in sections 25 and 26 of tin pr€sent?Limitation Act. For the purposes . of the present Report, it is unnecessary; to make any detailed it comments as to the constitutional aspect. Accemingly, we proceed to a con- 's'nieration' of the provisions contained in the relevant{.sectoiis.e > 28.2.' Section deals with the acquisition 'of by prescription. ,IS.°h°'i't'11l1 351 Sub~section (1) makes a two-fold provision. The dea:is'« with access -° em and use of light or air to and for anybuilding, ivhiczhrgllnd} been peaceably'en--

jognyed-with the building as an easement and as.of;'right:;'without'interruption for 'Nﬂkanth v. Dattatraya, (1879) I.L.R. 4 Born. 103. ' ""5enk¢z.ta,Subramaniya Sarstri v. Bhairavasami, (192'H? S3*bi§L.I'.$- 447; \ 3 ishnu Bhatta v. Domakka. A.I.R. 1958 Ker. 326.» v - 'Rungo V. Btibaj, (1880) I.L.R. 6 Born. 83. " ' . -'Section 29(4), Limitation Act, 1963. ' ~ :iP;escricption Act, 183% (IEnlg.). d .

w - ommission o n ia, 3r Report (Limitation ,. 1 ), 24, a 56, {Statement of Objects and Reasons annexed to the Lim1i~t:'ti_on9$ll, par N I80 . ' section 25.

i » Exdﬂxlon. of certain periods.' 891*}: ruaroar or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 25----Section 25---Acquz'sition of Easements by Prescription-- Chapter 26---3S'ectian 26---Raversioner-C,jh'aptér 27- Section 27--EJrtinguishment of Right .to'.Praperty) ' ' ,20.years. At the expiry of the twenty years' period, the right to such access or use of light and air becomes absolute and indefeasible. The second half' of j the section provides that where any way or watercourse or the use of any water I or any other easement (whether aﬁrrngtive or negative) has been peaceably and already enjoyed by any person claiming title thereto as an easement and as 0!, right without interruption and for twenty years, the right of such way, water- course, use of water or easement becomes absolute and indefeasable. \ ' Subsection (2) of section 25, in substance, twenty years should be a period ending within two years next before the insti:

. tutioniof the suit wherein the claim to suchiperiod relates is contested. By.»sub.~ requires 'that the period of T' section (3), where the property over which it right is .claimed under sub-section ' A (1) belongs to Government, the period must be thirty years.

"interruption" for the purposes of the section is explained by the Explanation to the section. 2' . I The meaning of ' 25.3. No change 'is needed in section 25. Section 26 is dealt with in the next Chapter.

.CI-IAPPER 25 SECTION 26 :. REVERSIONER 26:1. Continuing the subject of easements in section 25 dealt with section ' 26 provides that in computing the: period of 'twenty years mentioned in section

25. if the-servant tenant has been lield bygvfrtue of any life interest or any other interest for a term exceedilg thine years, the time of enjoyment of ' easement during the continuance of suchllife? interest or limitedfinterest shall be excluded in computing the period of twenty in case the claim to the ease- ment is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the dominant tenenfeIit.J ' The? object of this section is 'to -preclude any easement from arising-..whe1'e\€ the servient tenement is enjoyed or heldfor a limited peﬁodjjobyiously a person having a limited interest may not have any enthusiasm in opposing for resisting any enjoyment that might ultimately ripen into an easement. 26.2. No change is needed in Section.

CHAPTER 27 ' 7 \_ I SECHON 27. : Exr1NGUIslIM_i:N'r or RIGHT TO rnornnrr - '"

27.1. In the cont-gxt. of prescrdption; ﬁtheimore important provision is to five found in section 27, which may as_the shortest but the most'jm- portant section of the Act. In ternfs. ittjleau with the extinctionlof tinctive prescription----but, in eﬁect, it aieounts_to the creation of a' correspond- ing right, which in practice, has come to be known as title by adverse posses- sion. The section reads as under:--- ~ -

"27. At the determination 7o't'?the period hereby limited to any person for instituting a suit for possession of any property. his right to such pm-' » 1, petty shall be extinguished."

39TH REPORT 05 LAW COMMN. or mom ow THE LIMITATION ACT, 1963 81 (Chapter 27~ Section 27-- Extirzguishment of'Rigot to Property. Chapter 28~--Secti'on 28»~--»Amendrr'1ent of Certain Acts Chapter 29---- Sections 29 to 32----.S'aw'ngs, Transitional Pro vi.~'z'mzs' and Repeal.) 27.2. The theoretical as well as practical importance of the extinction and 0'h?r Points ' acquisition of title to property by prescription is, by now, well understood and,°$.ff§,§"'2'3;'? it is hardly necessary to spend much time over the subject. While the principle enacted in the section is conﬁned to property which it is sought to possess, at the same time, -it applies to property to all kinc1s--movable and immovable, in- cluding a hereditary oﬂice. Again, while the section, as already stated above, purports only to deal with the extinction of rights, itis well established that ac- tual ownership of the property is also acquired'by another person who was in adverse possession of the property for the period speciﬁed in the section. In other words, a good title is also conferred upon the person in possession de facto.' 27.3. On a consideration of the case-iaw in question; no change appears to No change be needed in section 27. ' '1°°d°d-s . CHAPTER 28 SECTION 28 : AMENDMENT OF CERTAIN ACTS \

28.]. Section 28 malces two amendments in other laws by directing that--~ 5=°li°I1 23*' I " Amendment of

(i) in section 15 of the Indian Easements Act, .1832, for the words "sixty:,13§,?:f'{'§:"

years", the words "thirty years" shall be substituted; and Civil Procedure ' Code.

(ii) in the Code of Civil Procedure, 1908, section 48 shall be omitted.

The ﬁrst amendment is in harmony with the policy of the law to substitute thirty years for sixty years in regard to claims against. the Government. The ' second amendment is c/onsequential on the decision to simplify and reform the law relating to t"imeflimits_ for the execution of decrees.

28.2. As the section has created no serious problem, no change is needed. No change . needed.

CHAPTER 29 SECTIONS 29 to 32: SAVINGS, TRANSITIONAL PROVISIONS AND s ' REPEAL '

1. Introductory 29.1. It remains now to consider (so far as' the body til" the Act is con- section 29__ cerned), the provisions of the Act in the nature of Z savings, transitional provisions General and repeal. Of these, the most important is section 29, consisting of four sub- chem"

sectiqns. Subsection (1) provides that nothing in this Act shall affect section 25 of the Indian Contract Act, 1872. It may be recalled that by virtue of section 25(3) of the Contract Act, a time barred debt may. by means of 'a fresh promise satisfying the formalities required by that section, be revived even though there is~no consideration for the promise. It should, however, be noted that a right other than a right to debt does not fall within the purview of that section of the a 'Contract Act. Thus. a right to property or to a legacy or to damages does not T fall Within it.

'Ganga Gobfnd Manda.' v. The Co-h'ector of the Twenty-four-Pergumiahs. (18671 11 M00. LA. 345. 360; , .

Amirunnisa Begum V, Umar Khan, (1872) 8 Bang. LR, 549;» . ) Gosmin Doss Chunder v. Issur Clmmier Natlt, (1878) .I,L.R. § Cal. 224. Radhabai v. Anantrao, (1885) I.L.R._. 9 Born. 1,98, 228. ..

12-14 M 'ot,1,n_:cAainis3 » I 82 Section 29(2)---

Earlter _ recommendation of the Law Commission as to special and local laws.

\ 89TH REPORT or L,\w_coMIuN. or INDIA on me LIMITATION ACT. 1963 (Chapter 29--Sections 29 to 32--Saw'ngs, Transitional Provisions and Repeal.) ' Section 29(2) of the Limitation Act deals with those special or local laws which prescribe a period of limitation for any suit, appeal or application. sub-section consists of two parts. According to the ﬁrst half, where a special or

-local law prescribes a period diﬁerent from that prescribed in the Limitation Act, then section 3 of the Limitation Act will apply as if that period had been set out in' the Schedule to the Limitation Act. In other words, the suit, appeal or application'to'which the special or local law applies must, under section 3, be dismissed if it is instituted or made after the expiry of that particular period. The second half of section 29(2) provides that the provisions contained in sec-

tions 4 to 24 apply only in so far as, and to the extent to which, they are not ex- ' pressly_ excluded by such special or local law. Although apparently simple, sub section .(2) has given rise to 'a number of questions of interpretation and appli- cation, some of which will be referred to in due course} Sub-section (3) of section 29 reads as under:

"(3) Save as otherwise provided in any law for the time being in force:

with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law."

This -sub-section has also created certain problems in regard to suits for. dower, which will be mentioned in due course.

Finally, A sub-section (4) of section'29 'provides that in the provisions of the Act relating to easements do not apply_ to cases arising in the territories to which the Indian Easements Act. 1882, for the time being extends.

: « ' II. Special andllsocal Laws 29.2. With reference to the savings eifected as regards special and local laws, the Law Commission in its Report on the Act of 1908, while dealing with section 29 of the Limitation Act, 190% (corresponding to present section 29), ob-

served? as under:---- ' .

";I'he combined operation of sub-clauses (a) and (b) of sub-section (2) A is that so far as special and local laws are concerned, only sections 4. 9 to . 18 and .22 of the Act apply, and thatetoo 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 1 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."

Implementing this recommendation. section 29(2) as re-enacted in the pre- "

\ sent Act. reads as under :----

"(2:) Where an special or local law prescribed for any suit, appeal or .

application a period of limitation diﬁererit from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any spe- ' cial or local law, the provisions contained in sections 4. to 24 (inclusive), shall apply only in so far as, and to the extent to which, they are not expressly' excluded by such special or local law."

"Para 29.2, et seq, infra. ' ' ~W 'Law Commission of India, 3rd Repor:t(Li1:nitation Act 1908), page 24, para 59 and pages 82-83. section 25(2). ' V .

. 5.

, C I 89rH~Iu=.poRT or Lxw COMMN. or INDIA ON THE LIMITATION ACT. 1963 (Chapter 29~--SecIions 29 to 32----Savings, Transitional Provisions and Repeal.) A 29.3. Several decisions of the Supreme Court 1-2-7' have made it clear that "Spe¢ial" and i a "special law" is a law relating to a particular area or territory.

29.4. The Supreme Court lIas also noticed' the.important departure made by Limitation Act, 1963 (from the Act of 1908) in so far as the provisions con- tained in section 29, sub-section (2) are concerned. The Court concluded that since, under the new Limitation Act, section 5 is' speciﬁcally made applicable by section 29(2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had suﬂicient cause for not presenting the application within the period of limi- tation. The court took notice of the fact that a time" limit of 60 days was laid down by section 417(4) of the Code of. Criminal Procedure 1898, which'was a i - "special" law of limitation. But the mere fact that the special law has, by peremp-

-tory and imperative language, prescribed a period of limitation in section 417(4) was held "as not a suﬂicient ground to displace the applicability of section 5.

29.5. In View of the above authoritative pronouncement, there appears to be need to deﬁne the expression "special law" and 'local law' as occurring in o , the [Limitation Act. ' 29.6. The expression "expressly excluded" by» such special or local law, as ' occurring in 'section 29(2) also, came up for consideration before the Supreme Court" in a case dealing with section 81 of the Representation ofthe Peoples Act 1951. The Supreme Court overruled an earlier view about the interpretation of this expression as occurring in section 29(2)(a) of the Limitation Act, 1908- "lqeal" law.

Deﬁnition ol special or local lawye-

not needed.

"Expressly * excluded".

a view to the effect that the exclusion must be by express words i.e., by express' reference to the 'sections of the Limitation Act. The Supreme Court held that what had to, be seen was whetherthe scheme _of the special law and the nature of the remedy provided. therein "are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it." "If, on an examination of the relevant provisions, it is clearpthat the pro- visions of the Limitation Act are necessarily excluded, then the beneﬁts conferred therein cannot be called in» aid to supple t the provisions of the Act." The Supreme Court further held that even in a case where the special law does not exclude the provisions of sections 4 to 24 of "ihe Limitation Act by aI1 express reference, "it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the 'nature of the subject-matter and the scheme of the special law exclude their operation."

29.7. In view of the pronuncement of the Supreme Court mentioned above, Courts enter uponia comparative study of the scheme of the special or local law v and the Limitation Act, 1963, with a view to finding out whether an exclusion is suggested, evenithough the exclusion does not appear in so many words in the text of the special or local law. ~ 29.8. For example, a Full Bench of the Madhya Pradesh High Court" has applied section 5 of the Limitation Act to an objection petition ﬁled under sec- tion 11(3) of the Madhya Pradesh Ceiling on Agricultural Holdings Act. l960, Ikdushalya Rani v. Gopal Singh. A.I.R. 1964 S.C. _4s0_ 3Mangu Ram v. Municipal Corporation of Delhi, A.I.R. 1976 S.C. 105- 3]. A. Dr'-Piedade V. A. V. De Fonseca. A.I.R. 1979 SC. 984 '.Manizu Ram V. Delhi Miniici/)uIiI,\'. A.I.R. 1976 105.

" 5HukIIvndcv v. Lalit Naruin, A.l.R._ I974 SC. 480. "Vija_v Singh V. Competent Autlzority, A.I.R. 1978 M.P. 71 \ Cases in High 'courts.

83 84

\ \ No cha ' e needed It?

to the expression "expressly I excluded".

Section 29(2)-

Local laws.

Portuguese Civil Code.

' French Civil Code.

89m REPORT or LAW COMM-N. or INDIA on THE LIMITATION ACT, 1963 | (Ch¢rpter* 29----SccIions 29 to '32------Savings, Trz1nsitionalProvisions and Repeal.) with a terse observation:--

"The provisions contained in the Ceiling Act do not speciﬁcally ex- clude the application of section 5 of. the Limitation Act. Consequently, it can- not be doubted that to an objection application as provided for in sub-sec-

tion (3) of section 11 of the Ceiling Act, section 5 of the Limitation Act will» be applicable."

29.9. The Calcutta High Court has held' that the appellate Cooperative Tribunal, established by the Bengal Cooperative Societies Act, 1940, would be governed by the provisions of the Limitation Act which are applicable' to "courts" ' and accordingly section 29(2) of the Act would also be applicable. A certiﬁed copy is not required to be ﬁlled along with therappeal, but even then the Court came to the conclusion that the provisions of section 12(2) of the Limitation Act, 1963 [regarding excluding the period for obtaining copy of the award], would be applicable, because an aggrieved person cannot make up his mind whether to' ﬁle an appeal or not unless he reads the reasons given by the lower court.

29.10. From the above discussion, it appears that the expression "expressly excluded" occurring insub-section (2) of section 29 has been construed liberally in determining the question whether sections 4 to 24 are available to proceedings under special or local laws. It may be dilﬁcult to devise a verbal formula that will cover the variety of situations, and we do not, in the present state' of the case~law, propose to make any verbal change. I

111. Local laws--The problem of Portuguese and French laws.

29.11. As to the savings etfected for "local laws", two cases decided by the Court of the Judicial Commissioner and the Madras High Court regarding Goa and Pondicherry respectively, have brought to surface the anomalous situation prevailing in these two former foreign enclaves.

29.12. In at Goa case', it was held that articles\529 and 535 of the Portu--

guese Civil Code are "special or local law" within the meaning of section 29(2) A ' of the Limitation Act.'l963, and 'g not. on the coming into force of the Limita- ' tion Act 1963, in the Union Ter P ry of Diu, Daman Goa. stand repealed by the corresponding articles 74 , 31 iéfnd 65 of the Schedule to the Limitation Act, 1963. A reading of the judgment shows that the articles of the Portuguese Civil Code in question are more liberal to the plaintiff than the corresponding provi- sions of the Act of 1963. So vast was the disparity between these two provisions as regards the prescribed limitation periods that the Counsel for the defendant went to the extent of arguing that articles 529 and 535 of the Portuguese Civil Code (which prescribed a period of 30 years) were demonstrably discriminatory and irrational in nature. The argument wasidismissed. but the ruling accentuates the fact that a system substantially different from the Indian Act has been re- garded as continuing in force in the Union Territory of Goa.

29.13. The Madras High Court (which has jurisdiction over the former French Possession of Pondicherry} has also held in the same refrain" that arti-

cles of Limitation laid down in the French Civil Code answered the description 7 of "local law" in section 29(2) of the Limitation Act, 1963. The French Civil Code was a "local" law because it applied, and was inforce, in the former French establishments of Pondicherry. It. was not in force anywhere else in India. After 'Nirma-I Kumar v. Pmzilmiz' C 0-0,'). Bank, A.I.R. I977 Calcutta 246.

"J. A. Du P. Bmrcto v. A. V. De Fouseca, "AIR. 1969 Goa 124. "Cl1ocka1inga MudaII'w' V. Nanivmzmt Pillar', (1973) 2 M.L.J. 544.

I 89TH REPORT or LAW COMMN. or lNDIA ON THE LIMITATION ACT, 1963 (Chapter 29--Sections 29 to 32--Saving, Transitional Provisions and -Repeals.) ' x the de jure merger of Pondicherry in the Indian Union on 16th August, 1962, all the laws formerly in force in that territory were continued, by force of section 4(1) of the Pondicherry (Administration) Act, 1962., "This meant that the laws so preserved continued to remain "local laws". 'The law of limitation continued in the French Civil_Code had thus to be regarded as "local law", because that was 'its character at the time when Parliament passed the Limitation Act, 1963.

29.14. The French Civil Code shares the common trait ol liberality to the Long pm-iodg plaintiff with the Portuguese Civil Code prescribing a period of 30 years for 0i limitation- \. alltrights of action whether in rem or in personam.

The arguments advanced----

albeit without-success--before the Judicial Commissioner of Goa about the discriminatory nature of the Portuguese Civil Code, vis-a-vis the Indian Limita-

-tipn Act acquired an added reﬁnement here. The French Civil Code not only prescribed a 30 years limit for actions in rem or in perswzaiu (on the pattern of the Portuguese Civil Code), but also distinguished between actions for the price of goods sold to private persons and those where «the purchasers were merchants. in the former case, a very short period of. one year has been pres- cribed.' _ I I O 229.15. The complexity of the problem can be gauged from the fact that Understanding f Ih ronerczfntile eventhe plaintiff did--not seek to support his. case by pleading the continuance of the French Code as regards limitation when he filed the suit on 23rd June,

-1971 in the Court of the principal District Munsiﬁ Pondicherry. It was for the ' assuming that the Limitation Act 1963 is now in \ ﬁrst time in the appeal before the Principal District Judge, Pondicherry that a submission was made that the question of limitation must be considered under the French Civil Code, and not under the Limitation Act of 1963. Even at this stage, no attempt was made by the plaintiﬂf to wriggle out of the short period of limitation prescribed by article 2272 of the French Civil Code by pleading that the goods for which the action is based were sold to a merchant. There is, thus, ample justiﬁcation for concluding that t mercantile community is rce in Pondicherry.

.29.l6. While interpreting section 29(2) of the Limitation Act 1963, the i Madras High Court has observed that the sum total of the consequences of section 29(2) is to "preserve unity in diversity in our laws of limitation". The sentiments expressed and the ideals aimed at cannot be faulted, but it will have to be seen whether such a diversity is in keeping with the smooth functioning of the legal system and with the intention of Parliament and the social and political ethos of our country. ' _ 29.17. No one would have a quarrel with the (anxiety of all concerned for Section 29___ L preserving the special characteristics and attributes of the system of adminis-Recomlgnendation tration of justice in these erstwhile foreign enclaves. With that end in view, ::dt°P0r"°:g°l1}csc ' a continuity with the past has been maintained in some areas.

regards limitation, the mental orientations of the business community of Pondi- cherry towards the Indian laws as reﬂected in the judgment of Clzockalinga Mudaliafs _case'persuades us to recommend to the Central Government that the provisions in the erstwhile French and Portuguese Civil Codes governing limitation in force in the Union Territories of Pbndicherry and Goa respectively, 'should be expressly repealed,'after ensuring that no legal hiatus is created by i such a repeali. ' 'Article 2272, French Civil ('ode contrasted with Article 2262-ofllhe same Code: _ _ '-'For implementation in connection with French and Portuguese Laws relating to limi- tation. , 4:

community.

However, as laws relating to limitation.

\\ Supreme Court case.

Travancore Act.

I 89111 REPURI' or LAW CUMMN. or mom on rrna LlMl'l'ATlUN Aer, 1963 (Chapter 29-Section 29 to 32«'---Sa rings, Tiwzsitiotzal Provisions and Repea1_)-

29.18. It may be mentioned in this context that the question' whether the provisions of the Portuguese Civil Procedure Lode as to innitauon still survive in the Union Territory of Goa, Daman and Din came up before the bupreme 'Court, where the point at issue was whether the appeal in 'question was governed by the Portuguese Code by article lie of the Limitation Act, 1903. H it was the former, the appeal was out of time. it it was the latter, the appeal was in time. The court of Judicial Commissioner. Goa had held (in the case under appeal} that the Portuguese Civil Procedure Code was still applicable and that section 32 of the Limitation Act, 1963 had repealed only the Indian Limitation Act of 1908 and not the Portuguese Code. Moreover, section 29(2) of the Act of 1963 saved a"'local" law andlhence the provisions contained in the Protuguese Civil Procedure Code still applied, so that the appeal was out of time. However, on appeal to the Supreme Court, the Supreme Court, after posing the question, considered it unnecessary to decide it, since it held that in the circumstances of the case, the delay (ii any) should be condoned. It is suﬂicient to quote the following passage lroin the last para-

graph of the judgment of the Supreme Court: ' "However, the other preliminary objection upheld by the "learned \,Additional Judicial' Commissioner is more important and the question that really arises for our consideration is, what was the law of limitation appli- cable in the Union Territories of Goa, Daman and Diu to proceedings launched therein prior to and pending at the date of liberation'?

"In other words, whether the period of limitation for -the appeal in question was the one prescribed by the Portuguese Code or by Article 116 of the Limitation Act 1963? It was not disputed that if it was the former, the appeal was out of time and if it was the latter, the appeal was well within time. lt is really unnecessary for us to decide this question in view of the application for condonation of delay for ﬁling the said appeal in the Judicial Commissioner's Court at Goa, that has been made by the appellants before us which we are inclined to grant. It cannot be gdinsaid that the aforesaid question of limitation is a complex one and not free from'd0ubt,"' and if in such a situation the appellants, bona fide believ-

ing that the appeal could be ﬁled within 90 days as provided by article 116 of the Limitation Act 1963, ﬁled their appeal within that period, it would be a clear case of suﬂicient cause which could be said to have prevented them from ﬁling the appeal within the» time prescribed by 'the Portuguese Code. Where two views are equally possible on this complex question and where a party, being guided by one of such views, adopts a course consistent with that view, it would equally be a case of 'just impediment' within the. meaning of article 145 of the Portuguese Code, which could be said to have prevented the party from ﬁling the appeal within limita- tion prescribed by the Portuguese Code." ' The aboy passage indicates that the position as regards the limitation law in force in the area in question is still uncertain.

IV. Local Laws The Travancore Limitation Act 29.19. -Another question of a similar character pertains to the Travancore-

Act. The areas at present'comprising the Kanyakumari District and Shen-

'Maria, Christine V_ Maria Zurrza, A.l_R. I97') 1352, I354, 1355, para 3~5_' '~'Emp11asis added.

89m REPORT or L/WV mMMN. on INDIA on THE L1MiTATioN ACT. 1963 (CIiaptcr'29- --SecIi'0ns 29 to 32-Savings, T rqnsitional Provi'si'ons and Repeal.) l cottah Taluk of Tirunelveli District of Tamil Nadu and the southern portion of Kerala together formed erstwhile the Travancore State 'where the Travan-

core Limitation Act (IV of 1100 N.E_.) was in force. Section 20(1) of the Act read:

"If before the expiration of the period prescribed for redemption of a mortgage, the mortgagee accepts from the' mortgagor a puravaippu or purakkadam deed creating a further charge on the mortgaged property « and duly registered, the prescribed period oi limitation shall be comput- ed from the date of such puravaippu or purakkadarn deed."

The Part. B' States (Laws) Act, 1951 extended the Indian Limitation Act, 1908 (which was the Central Act then extent) to the erstwhile Travancore- Cochin State. with effect from 1st April, 1951, with the result that the above provisions of the Travancore Limitation Act were repealed.

5.' 29.20. Two judgments of the Madras High Court, however, appear to have created certain difﬁculties in the matter of computation of limitation in situa- tions envisaged' by section 20(1) of the Travancore Act, which relates to pum- vaippu or purakkadam deeds (deeds of further charge). A provision similar to this was not found in the Indian Limitation Act 1908, and does not appear in the Act of 1963. Brieﬂy, this section provides that if, before the expiration of

-the period prescribed for redemption, the mortgagee acceptsa deed of further charge-, then a fresh period starts running.

' 29.21. The first judgment? on the subject (delivered by Mohan J .) held that , a mortgagor ought to consolidate both the mortgages and a piecemeal redemp-

tion was impossible. Mohan J. held that in spite of the repeal of Travancore Limitation Act. the suits are not barred by limitation and the period had to be counted from the purakkadam deed (deed of further charge). ' 29.22. A1 somewhat contrary view3 was expressed by the same High Court (in a judgment by Varadarajan J .1 holding that pizravaippu or purakkadam cannot be used to get fresh period of limitation after the extension of the Indian Limitation Act, 1908 to Travancore-Cochin and that the doctrine of consolida- tion cannot be applied at all. The earlier ,Madras ruling does not appear to have been cited before him.

29.23. As the period of limitation under the Travancore Act was 50 years, suits based on puravaippu or purakkadami can technically continue till ﬁrst April, 2001 AD.' No doubt. in all probability, in view of the State laws«re-

A garding the liquidation' of rural indebtedness, the incidence of such suits would be negligible. All the same, we have made a brief note of this matter and trust that the State Governments of Tamil Nadu and Kerala would examine the A pointsraised in the judgment. with a View to ensuring that no hardship is caused by such an extended period of limitation.' 1' .

'Section 20, Travancore Limitation Act (IV of 1100xM.E.}. 3Thom¢i.r v." Victor, AJR. 1976 Madras 273: (1976) 2 M.L.J. 5.

3Parameswm-an Thampv v. Kar_iakam_a T_haiika_ch: (1977) 90 L.W. 258 quoted by P. Mohana Chandran. Advocéte. Kuzhithurai "Limitation when mortgagee gets puravaippu or purakkadam from mortgagors" (1977) 2 M.L.J. 78.

'Forxconsideration in connection withthe Travancore Liinitation Act by State Govern.- ments of Tamil Nadu and Kerala: * , - _ . .

Case Law on the Travaneore Act.

Conclusion' as to Travancore Act.

\ 87 88 Suits for dower.

\ Need for clariﬁcation.

Law Commission recommendation . departed from.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 29- Sections 29 I0 32----Savings', Transitional Provisions and Repeal.) V. Section 29(3)--Position suit for dower 29.24. At this stage, it is necessary to refer to the part of section 29( . which excludes the applicability of the Limitation Act in regard to "a suit 0 proceeding under any law for' the time being in force relating to marriage and divorce." In view of an Allahabad ruling' on this sub-section, an amendment of section 29(3) seems to be needed. According to the Allahabad ruling, the Limitation Act, 1963, does not apply to a-claim for dower made by a Muslim woman under the Muslim law of marriage and 'divorce, and is, by section 29(3). excluded from the purview of the Limitation Act.' The reasoning underlying the judgment, is as under. In the Indian Limitation Act, 1908, the exception was only in respect of proceedings under the Indian Divorce Act. and there.

were speciﬁc articles 103-104 which prescribed the limitation period for a suit for dower. In the present Act, there are (the High Court has observed) n0 corresponding articies prescribing the period of limitation for a suit for dower. According to the Allahabad ruling, in View of the express provisions of section 29(3), nothing in the Limitation Act can_ bar the suit for dower.

29.25.'This ruling raises an important point that needs clarification. So far as ,we could ascertain, it was not the intention of the Legislature that the Limitation'. Act 1963, should not apply. to;claims for dower.

purview of the Act. Its object is to exclude matrimonial litigation proper com- menced under some statute, i.e. statutory proceedings for divorce, judicial sepa- ration and the like, which themselves terminate or suspend the legal bond of marriage. The reason for not making the Li-mitation Act applicable to matri- monial causes was presumably that these statutes themselves have their own in-builtdoctrines such as condonation, laches, and the like, which can be taken into account by the court. Subject to these doctrines. the court has a discre- ' tion as to the grant of matrimonial relief, in the exercise of which it can take into account the conduct of the parties, the interests of the children and other relevant factors. These considerations have no application, however. to a Muslim Wife's claim for dower, which is a purely monetary claim that can be decided on fairly precise rules. It, therefore, stands on a different footing from. say, a petition for divorce or judicial separation is regard to which (as stated above) special considerations of laches, discretion and the like apply.

29.26. We need not, pause to discuss.if-"the Allahabad ruling mentioned above is'correct, on the present wording 'of section 29(3). But obviously the position resulting therefrom needs to be set right. The point being one of re- curring frequency, some step needs to be taken to ensure that a claim for dower does not remain totally outside the Act.

29.27. A'few words appear' to be needed about the changed wording in the present Act (in contrast with the earlier Act); The difficulty seems to have been created because the Act goes beyond what the Law Commission recom- mended. Section 29(3) of the Act of 1908 made the Act inapplicable to suits under the Indian Divorce Act, 1869. Commenting on this. the Law Commis- sion, in its earlier Report. observed as under2:--

"There are other Acts like the Parsi Marriage Act and the Special Marriage Actdealing with marriage and divorce. The reason for excluding proceed- V ings under the Divorce Act. 1869, are equally applicable to proceedings 'Ahmadi Bibi v. Muliamed Maboob,jA,I.1V§._19'I_9 A". 374-(Deoki Nandan, 1.). V Raw, Commission of India, 3rd Report -:(Lunitatxon~ Act, 1908). Page 24. Dara 50- The exclusion T clause in section 29(3) is not really intended to exclude such claims from the .

is-Q14 M ofu .& CA/ND/83 8911;' REPORT or LAW COMMN. or INDIA ON Tina LIMITATION ACT, 1963 (Chapter 29-- Sections 29 to 32--Savings, Transitional Provisions and Repeal.) under these other Acts. We recommend 'that the _sub-section may be am- pliﬁed to include all Acts relating to matrimonial causes. The Acts to be included may be speciﬁed when drafting the amenriment.tol'1he section."

29.28: The. draft provision suggested in the Report of the Law Commission 'to give shape to its recommendation as regards the relevant part of section 29 of the Act of 1908 was as under' :4-

"25. Savings.--(l) Nothing in this Act--

(a) ........ .._. .... ..

(b) shall apply to proceedings under any law for the time being in force relating to marriage and divorce (Acts to be speciﬁed in the BiIl)."' Thus, the Commission's proposal (i) was conﬁned to Acts and (ii) further was conﬁned to Acts to be speciﬁed. However, the section as enacted, provides as under? :--

"(3) Save as otherwise provided in any law for the time being in force to marriage and divorce,. nothing in this Act shall apply to any suit or other . proceeding uifder any such law." lg

29.-.29. The section, as enacted, does not specify the enactments which are to be excluded. Presumably, it was thought that it would be too cumbersome to enumerate the various enactments--there were at least six Central Acts on the subject and there might be State or Provincial, Acts, including even some enactments of princely States? ' \ , 29.30; Incidentally, it may be useful to mention here that the Law Com-Rrﬁéilglaw 3 .

mission (in the earlier Report) contemplated that» suits for dower would fall . under the residuary article. [i.e. article 38 as proposed in the 3rd Report to replace article 120 of the Act of 1908 corresponding to article 113 of the pre- sent Act]. The Report observed':-- A ~ "' .......... ..Articles 103 and 104 which relateito suit for dower might be left to be governed by the residnary article. All these articles may there- fore be deleted." .

29.31.. The Law Commission did not contemplate that a suit for dower should be totally outside the purview of the Limitation Act.

29.32. Now that the point has arisen, it seems properuto revise section 29(3), R°°°'""'°"d"'i°'-

so as to deﬁne its scope more precisely than' at present, We recommend that 7 the following possible redraft should be considered :--

"29(3). Save as otherwise provided. in any enactment for the time being in force providing for the dissolution of a marriage by [1 decree of divorce, or for the grant of other matrimonial relief, nothing in this Act shall apply

- ' to any suit or other proceeding under my such enactment."

I 'Law Commission of India, 3rd Report, (Limitation Act, 1908), page 82, clause 25 (1X1')- . . . .

.2Section 29(3), Limitation Act, 1963.

"Cf. Maniben v. Ramanbhai, (1979) 20 Guj. L.R. 924. (Baroda Hindu Nibandh Act-,' 1937. section 152).

'Law Commission of India, 3rd Report (Limitation Act, 1963), page 60, para 157, See also ibid, page 87..article 38. I ' p .

/ 90 A 89TH REPO'RT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 29~Sections 29 to 32--Savings, 'Transitional Provisions and Repeal.) '(Chapter 30~-Limitation and the Amendment of pleadings.) As to French and Portuguese laws, see above} As to Travancore Act also,» see above."

Secti'?t'3.30;._ \ 29.33. Section 30 makes transitional provisions for cases where the period 1%nvsilSil:,?: « of limitation prescribed by the present Act is shorter than that prescribed _by i ' the earlier Act of 1908, which stands repealed by the present Act. The section needs no change. _ _ ' - A s¢¢uon_31_ 29.34. Section 31 makes certain provisions for proceedings for which the 'P°95li"3 Sui" period of limitation prescribed by the earlier Act has already expired, and also. for proceedings pending at the commencement of the present Act. The section . needs no change. \ section 32.. 29.35. Section 32 repeals the Act of 1908, and needs no change. Repeal.

CHAPTER 30 'LIMITATION AND THE AMENDMENT OF PLEADINGS A I. Positionyin India Sﬁopéhof ' 30.1. *It is proposed in this Chapter to deal with the subject of amendment t e awe" of pleadings 'in so far as it is relevant to the question of limitation. I 'i , 0.6. R. 17. I 30.2. The most important provision on the subject is in the Code of Civil C'P'C' Procedure, 0.6, R. 17. That rule, being intended primarily to confer a general power on the court to allow amendment of the pleadings (in the inte/rests of justice), naturally does not deal in detail with the ramiﬁcation of the exercise of that power in the varieties of situations that occur in life. It does not, for that reason, deal with the question in what circumstances the power may be exercised. V .

Amendment by adding a party is primarily taken care of by a speciﬁc pro- vision in the Limitation Act? ' C133' C°"n°i1 30.3. The leading case in India on the subject of amendment of pleadings is a Privy Council one.' The plaintiif's object in that suit was/to exercise his right of pre-emption, but, while drafting the' plaint the plaintiff who had asked for declaration of pre-emption rights) forgot to include a 'prayer for possession of the property. Later, he sought to amend the plaint to includegthe prayer 'for possession. Allowing .the amendment, and dealing with the aspect of limi- tation, the Privy Council observed :---

"That there was full power to make the amendment cannot be dis- , puted, and though such a power should '-not as a rule be exercised where its eifect is to take away from a defendant a legal right which has accrued to him by lapse of time, yetthere are cases (see for example, Mohummed Zahoor Ali Khan v. Mussumwt Thakooranee Rutta"K0er, (1867) 11 -M.I.A. 468 (P.C.), where such considerations are outweighed by the special cir- cumstances of the case.

"If this be so, all that happened-was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly pos- sessed under the statute in a form which the statute did not permit. But if -

1Para.29.l7, supra.

'Para 29.23, supra.

"Section 21, Limitation Act, 1963; Chapter 2], supra.

'Charan. Das V. Amir. Khan, A.I.R. .192lj1.'rivy Council 50, 51, 52.

\ 89TH REPORT or LAW CUMIVIN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 30--Limitation and tlze Amendment of Pleadings.) once it be accepted that they were attempting to establish those rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their inten- tion in a plainer and less ambiguous manner."

30.4. The earlier.case' cited by the Privy Council arose out of a suit to recover a stated sum due on a' bond alleged to have been executed by Mussumat Thakooranee Rutta Koer. After the institution of the suit some more defendants were added on the allegation that they had combined with the obligor and had "colorably"2 procured her estate to be transferred to them in order to deprive the plaintilf of his remedy against the property. on the date of the execution of the bond in question, the property of Mussumat

-Thakooranee Rutta Koer was in charge of the Court of wards and hence the _'I'hakooranee was not competent to incur any debt.

The Privy Council found that as the bond was a simple money bond to which the other defendants were not parties and as the bond did not purport to be a mortgage, no case was made out against the other defendants. But, as regards the obligor, i.e. Mussumat Thakooranee Rutta Koer, the Privy Couiicil did not agree with the ﬁndings that she was incompetent to incur a debt. How- ever, they were averse to pronouncing in favour of the appellant without an amendment of the pleadings and a full trial. The Privy Council observed as under:--- .

I "Though this Committee is always disposed to give a liberal construc- tion to pleadings 'in the Indian courts, so as to allow every question fairly arising on the case made by the pleadings-to be raised and discussed in the suit, yet this' liberality of construction. must have some limit. A plain- tiff 'cannot be entitled to relief upon facts or documents not stated or The main defence was that i , referred to by him in his' pleadings .......... ..They have, however, felt some A doubt as to the Order which it will be their duty to recommend Her Maj- esty to make' on this appeal. They have already intimated that the appeal ' must be dismissed against all the Respondents except Rutta Koer; and they have felt some 'doubt whether, inasmuch as the suit was wholly mis- conceived, the proper course was not to dismiss this appeal altogether. without prejudice to the rights of the appellant to bring a new suit against Rutta Koer upon this Bond, treating it as a mere money Bond. Considering, however, that such a suit would probably be met by a plea of the Act of Limitation; that in the circumstances of this case such a defence would be inequitable; and that, the Respondent not having appeared, their Lord- ships are not in a condition to 'put her on terms as to her defence to a fresh suit; they have come to the conclusion that thefairer course is to do what the judge of the Court of First Instance might, under the Code of Procedure,_ have done at an earlier stage of the course,--namely, allow the appellant to amend-' his plaint so as to make it a plaint against Rutta Koer alone for the recovcryiof money due on a Bond."

o 30.5.' Even in the later case3 the Privy Council cautioned that such a power Powcr tn should not, as a rule, 'be exercised where its effect is to take away from a defen- dant a legal right which had accrued to him by lapse of time. observations have also been repeated by the Supreme Court':-

'4 'Mohammad Zahoar Ali Khan, v. Mussuma! Thakooranee Rutta Koer, (1862) ll M.I.A. 8 .C-).

"This looks like an American spelling but has been taken verbatim from the Report. 3Ch,aran_ Das v.- Amir Khan, A.l.R.~ 1921 P.C. 50. 'Ganga Bai V. Vijay Kumar, A.I.R..1974 S.C. 1126.

advance the interest of' These general justice.

9r 92 Ovcrbroad argument.

Amendment not to ' introduce new use.

I 'for_Jhe first time.

89TH REPORT or LAW COMMN. dr .rNo1A ON rite LIMITATIQN ACT, 1963 (Chapter 30--Limitation and the Amendinent of Pleadings-) "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law Of limitation notwithstanding. But the exercise of such_ far-reaching discre- tionary powers is governed by judicial considerations and wider the discre-

tion, greater ought to be the care and circumspection on the part of the court."

30.6. At the same time, an overbroad argument that no matter whether a right to property has been extinguished under statute, an amendment of the pleadings should be allowed, was rejected by the Supreme Court in the very"

case cited above. Nevertheless, it continues to be pressed now and then, with a ' gloss. So was it done in an Allahabad case', in which the question was whether the execution application could be amended even after the expiry of the period of limitation. The application was ﬁled holder and the.amendment was disallowed, 30.7. on the other hand, in Madhya Pradesh casef reliance was placed on the observations of the Supreme Court" in Leach & Co. Ltd. v. Jardine Skinner & C0. and an amendment was allowed at the second appellate stage. in a suit for 'partition and separate jwssession of property, to implead a person The court observed:---

"Even assuming that the amendment might be barred by time. this would eminently be a case to allow time barred amendment."

30.8. In this case the Supreme Court had allowed the plaintiff to raise an alternative when ordinarily the suit was for damagesfor conversion of goodspas an action in trover. The Court found that all the allegations which are necessary for sus- taining a claim for damages for breach of contract were already in: the plaint and all that was lacking was only the allegation that the plaintiffs were in the alternative entitled to claim damages.

, 30.9. In this context the Supreme Court referred to the leading case of Charan Das' and observed:----

"It is no doubt true that Courts would, as a rule, decline to allow ~ amendments, if a fresh suit on the amended' claim would be barred by limitation on the date of the application. But that is a factor to be taken ' into account in exercise of the discretion be ordered, and does not alfect the power of the court to order it. if that is required in the interests of justice." .

0 Such verbal amendment has always been allowed by courts} ' 30.10.

tuted on the basis of a chit acknowled a promissory note executed on 'the same day,_sought_ to amend the plaint by introducing a relief on the basis of the'prom_isory note alone, such an amendment which was based entirely on facts stated the originalplaint itself, could be permitted despite the fact that the suit would have been time barred had it been 1Kishare 100 V. Guman Behari Joo Deo, A.I.R- 1978 Allahabad 1. 3Anandi5ai v. Sundarbai, A.I.R. 1965 M.P. 85, 88.

3Leach & Co. Ltd. v. Jardine Skinner & Ca. A.I.R. 1957 S.C. 357. 'Charan Das v. Amir Khan, A.I.R. 1921 P.C. 50 supra. . .

5Leach & Co. Ltd. v. Jardine Skinner & Co-., A.I.R. 1957 S.C. 357, 362.

2' by a person other than the decree .

claim for damages for breach of contract for non-delivery of goods , as to whether amendment -should ~» Where the plaintiﬂ in a suit for recovery of money which was insti- "

ging receipt of money borrowed and also I 89m REPORT or: LAW COMMN. or INDIA ON THE LlMl;l'ATl()N ACT, 1963 (Chapter 3 --~--Limitation and the amendment of Pleadings.) instituted on the date when the amendment was sought for.' But when the plain- tiff originally based his pre-emptive claim on the basis of relationship, he was not allowed to' plead co-shareship as an additional ground when such an amend- ment based on new ground would have been time barred." A pre-emption suit ﬁled on behalf of a major, showing him to be a minor, was not allowed to be amended in a Punjab case? The Supreme Court has in one case,' touched on the question of limitation in a contract containing an escalation clause of labour rates. The plaintiff had originally claimed only a declaration about the enhance- ment of the tendered rate. Subsequently, the. plaintiff sought to amend the plaint by adding an extra relief for a decree for the contract-money. The amend-

ment was allowed, on the ground that the amendment sought to introduce a claim based on the same cause of action. However, the Supreme Court obs-

_ erved:-- -

"No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time."

30.10A. The dictum of the Supreme Court that the power can be appropria- Summary of tely exercised in the interests of justice, the law of limitation notwithstanding?}g°h1;'§f:f1°'? shows that the power has been regarded as a wide one. All the same, one can ' discern from the judgments certain guiding lights that indicate the proper app-

roach to adopted in exercising the judicial discretion in the matter.

I Vﬁ review of -the judicial pronouncements in Indiaon the subject of amend- ment of pleadings brings to surface the following broad principles:

(I) The courts have a plenary power to permit amendment of pleadings at any stage of the proceedings. But the power can be exercised appro-

priately only in the interests of justice and the discretion should be exercised with due care and circumspection. ' (2) When all the allegations which are necessarily for sustaining a claim ' already exist in the plaint, the court should exercise its discretion to allow a technical amendment, evenpthough the claim would be barred by limitation on the date of the application.

(3) A suitor should not suffer on account of merely technicality or clumsly blunderingf' (4) A 'suitor/should not suffer becausehe failed to amend his plaint at any early stage of the proceedings? -

(5) When all the allegations which arenecessary for sustaining a claim were already in the plaint and what was lacking is only a prayer for an . alternative claim, the amendment should be allowed."

(6) Amendment should be allowed if no prejudice is caused to any party and thepamendment is based entirely on facts stated in the original plaint." A ' (7) Except in special circumstances, an amendment. should not be allowed to introduce a set of ideas to the prejudice of any right acquired by any party by lapse--of time.

1Govinda Chem' v. M. V. Chinnappa, A.I.R. 1973 Mad. 400.

"Gurrnukh Singh v.-Dalip Singh, A.I.R. 1971 Punjab & Haryana 419. ' 3Suraj.Bhan v. Balwant Singh, A.l.R. 1972 Punjab & Haryana 276. "A.K. Gupta v. Damodar Valley .C0rp., A.l.R. 1967 SC, 96, 98. 5Gangabai V. Viiay Kumar, A.I.R. 1974 S.C. 2216 (.rupra).*"- 'Charan Das v. Amir Khan. A.l.R- 1921 P.C. 50. _' ' 'Mohmmud Zahoor Ali Khan, v. Musrumat Thakooranee Rutta Koer, (1807) Moore's Indian Appeals 468. ' ' ' 'Leach &, Cg. v. Jardine Skinner & Co., A.l.R. 1957 S.C. 357.

-'A. K. Gupta V. Damodar Valley «Corporation, A.I.R. 1967;S.C. 96.

Developments in England.

Rules of the Supreme Court

- V in England.

89TH REPORT or LAW QOMMN. or INDIA on me LlMlTATlON ACT, 1963 (Chapter 30----Linu'tatio/2 and the Amendment of Pleadings.)

11. Position in England 30.11. Developments in certain other countries are also of interest. IniEn'g-

land, as long back as 1887, Lord Esher refused' to a plaintiﬂ? leave to amend to add to her action for slander (after the expiry of the period limitation), claims .» for assault and false imprinsonment. But, while doing so, he made certain gene- ral observations which were, until recently considered almost an immutable guide- line in practice:-- 6 "We must act on the settled rule of practice, which is that amendments are not admissible' when they prejudice the rights of the opposite party "as exist- ing at the date of such amendments. If an amendment were allowed setting' up a cause of action, which, if the writ were issued,in respect thereof at the date of the amendment, would be barred by the statute of Limitations. it would be allowing the plaintiff to take advantage of her former writ to 1 defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the court might perhaps have power to allow such an amendment, but certainly as a general rule it will _ not do so."

Even though Lord Esher .(in the last sentence of the above passage) had "made reservations for "every peculiar circumstances", it has been generally as- sumed that whenever an amendment sought would change the cause of action after the expiration of the period of limitation, allowing the same could cause injustice to the defendant which cannot be compensated for by cost. ' ' 30.12. This position practically, held the ﬁeld in the England till the coming in force of the Rules of the Supreme Court, 1966. Order 20, Rule 4-of these Rules provide as under:----

"S (1) Subject to Order .18, rules 6, 7 and 8 and the following provi- sions of this rule, the court may at any stage of the proceedings allow the plaintiff to amend his wiit, or any party to amend his pleadings, on such terms as to costs or otherwise as) may be just and in such manner (if any), as it may direct. ' ' (2) Where an application to the court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant suchleave in the circumstances mentioned in that para!»

-graph if it thinks it just to do so. "

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstaning that it is alleged that 'the "effect of the amend- ment will be to substitute --a new party if the court is satisﬁed that the mis- take sought to be corrected was a genuine mistake and was 'not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4) A amendment to alter the capacity in which a party sues (whether .

as plaintiff or as defendant by counter-claim) may be allowed under para- graph (2) it the capacity in which, if the amendment is made, the party will sue is one in which at the date of -issue of the writ or. the making of the counter claim, as the case may" be, 'he might have sued.

'Weldon v. Neal (1887) 19 Q.B.D. '394,[395;- 56 LJ. Q.B. 621 (CA) 89TH REPORT or LAW COMMN. or INDIA ON, THE LIMITATION ACT, 1963 (Chapter 30------LI'mitation and the Amendment of Pleadings.) (5) -An amendment may be allowed under paragraph (2) notwithstand- ing that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts, or subs- tantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

30.13. Doubts were expressed by- a writer' that such a sweeping provision,' Doulits ex-to which in a sense, qualiﬁes the limitation Acts might be argued to be ultra vires as the statutory authority for making the rules of the Supreme Court. However,' the point has not come up for judicial decision. ' 30.14. The rule came to be considered by Lord Denning in one case' wherein Lord Denning's he boldly stated that the above rule has "speciﬁcally over-ruled a series of cases '"°w' which worked injustice. Since the new rule, I think we should discard the strict rule practice in Weldon v. 'Neal!' "The court should allow an amendment when- ever it is just to do-, even though it may deprive the defendant of a defence under the Statute of Limitations."

'30.15. These observations were not approved in a later case,' but when the question came up again5 before Lord Denning, he reiterated his earlier statement.

_ 30.16. About a hundred years ago, Bowen L.J., while addressing American/lddress by "Judges and lawyers emphatically gave his assurance'. "It may be asserted_without B°"""" L-1 fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation."

By and large, this proposition seems to be true of, the amendment of plead- ings also by provisions giving thecourt a general discretion to allow an amend- ment. notwithstanding that it raises a barred cause of action, whenever justice ' so requires."' ( A ' The author, at the end of above article, has prepared a chart giving a list of about 20 cases showing the nature of the original action and nature of the amendments sought and whether the amendment was allowed or refused. The chart graphically brings_l;ome the point that the law on the subjects is me ﬂuid. 4 state and ﬁrm guidelines should be incorporated in the statutory rules to enable the courts to exericse their discretion in such matters predicated upon certain 'principles. --

(111. Australia and Cami 30.17. The position in Australia may now be dealt with. In a recentgarticle Hai:dshjp'of' in the Australian Law Journal," the writer has liaed the hardships which the rule g',°I;'11° in ' 9 an V.

-"in Weldon v, Neal creates for a plaintiff who desires to amend the statement of Neal being a '_ claim after the expiry of the limitation period. He observes :-- Tealiscd ii Australia.

'Michael J Goodman "Problems of Limitation" 119 New Law Journal 814. _ Wiﬂuaﬂy identical provisions appear in the rules of the Federal Court of Canada (General Orders and Rules GORS) and in the Nova Seotia. Civil Procedure Rules). 'Chatworrh Investments Ltd, v. Cussins (Contractors) Ltd, (1969) 1 All E. Reports 143. 959 'Braniﬂ v Holland and Hennad & Cubitts (Southern) Lt. Another, (1969) 3 A.E.R. 5Starman V. E.W. & W.J. Moore Ltd. (1970 1 All E.R. 581. ._L] {Address by Bowen L..'l. quoted in Potin v. Wood, (1962) 1 Q.B. 609 (C.A.) (Pearce .' :Per Glass J.A. in"Megee'v. Yeomans_(1_977_) 1 N.s.,w.L. R._ 273 (C.A.). Susan Campbell, Amendment and Limitations: The Rule in Weldon v. Neal" (Nov. 80-54 Australian Law Journal, 1). 643, 644 Footnotes given in that arising] article are omm", ed, except a few. ' ' Saskatchewan Law.

AC!-.

Ontario Law , Reform Cnmmission's Report.

- 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION Aer, 1963 T -

(Chapter 30--<Limitation and the Amendment of Pleadings).

"Although the relevant provisions of the Supreme Court Rules have been amended in England' and'. in some Australian jurisdictions2 to displace (at least partially) this 'settled rule of practice', the rule in Weldon v. Neal still applies in Victoria, Tasmania, the Australian Capital Territory, the Nor- thern Territory and in actions governed by the present High Court Rules."

-It is the purpose of this article to discuss the diﬂiculties experienced by the courts in deﬁning the exact scope of the rule with particular reference to a ' line of decisions of the Victorian Supreme Court and to argue that, in the light of the present interpretation of the rule, it should be replaced ....... ..

A comparison of the position in England and New South Wales is foundpin an English case} 30.18. In Canada, Lord Denning's observations in the later case' have been followed by the Federal Court of Canada,' in a case in which an amendment was allowed alleging a different voyage and different bills of lading, though ori-

ginally the claim for damage to goods carried was based on a speciﬁc voyage .

and no speciﬁc bills of lading of a particular case.

'30.19. In Canada, the Saskatchewan, 'jurisdiction has gone a step further. The Queen's Bench Act" provides as under :--

"Where an action is brought to enforce any right, legal or equitable, the court may permit the amendment of any pleading or other proceeding therein upon such terms as to costs or otherwise as it deems just, notwithstanding that, between the time of the issue of the writ and the application for amend- ment, the right of 'action would, by reason of action brought, have been barred by the provision of any statute; provided that such amendment does not involve a change of parties other -than a change caused by the death of one of the parties." A Unfettered discretion given by the Saskatchewan law to the courts to permit amendments has been severally criticised' as going too far, because it is pointed out that the primary consideration underlying the Limitation Act is that [the ' defendants ought not to be called on to resist' a claim when evidence has been lost, memories have faded and witnesses have disappeared.

30.20. If the Saskatchewan law grants blanket power of amendment to the court the Alberta Limitation of Actions Act, (R.S.A. 1970 Chapter 209) in its section 61, gives a long list of various 'types' of situations which have given rise to difﬁculties in the past such as misnomers, cases involving dead persons, etc., in which the courts may allow amendments to the pleadings notwithstanding the expiration of the period of limitation. ~ 30.21. In 1969 the Ontario Law Reform Commission in X its Report on the Limitation of Actions, recommended that: ' "In any action, the court should be able to allow the amendment of any pleading or other proceedings, orian application for a change of party, 1R.s.c.o. 20, r. 5. 1 V « ' 2N.S.W.: Pt. 20 r. 4: Queensland: 0.32, r.l: South Australia, 0.28, r.l; Western Aus-

tralia: 0.21, r. 5.

~"'Brickﬁeld Properties Ltd. vs. Newton (1971) 1 W.L.R. 862 (C.A.). .' 'Chatsworth Investment Ltd. v. Cussins (Contractors) Ltd. (1969) 1 A-ll ER. 143 145. 5Can Motor Sales Corp. Ltd. vs. Madonna, 24 D.L.R. (3rd) 593. ' "Section 44(ll), Saskatchewan Queens Secret Act (19 5) (Ch. 73). , 7Cary D. Watson, "Amendment of proceedings after imitation. periods", 53 Canadian Ha; Review'237. ,. ' f , I 89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 30~Lz'mitation and the Amendment of Pleadings.) (Chapter 31--/trticles 1 to 5 : Suits Releating to Accounts.) upon such terms as to costs or otherwise as the court deems just, notwith- standing that, between time of the issue of the writ and the application for amendment or change of party, a fresh cause of action disclosed by the amendment or the cause of action against the new party would have been barred by a limitation provision?"

\ IV. Position in U.S.A. « 30.22. The U.S. Federal Rules of Civil Procedure read as under:---- U.S. Federal Rules.

"(c) Relation Back of AmendmentS.----Whenever the claim or defence as-

. serted in the amended pleading arose out of the conduct, transaction, or occur- rence set forth or attempted to be set forth in the original pleading, the amend- ment relates back to the date of the original pleading. An amendment chan- ging the party against whom a claim is asserted relates back if the forego- ing provision is satisﬁed and, within the period provided by law for com- mencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defence on the merits, and (2) knew or should have known that, but/for a mistake concerning the identity of the proper party, the action would have been brought against him.

The delivery or mailing of process to the United States Attorney, or his . designee, or the Attorney General of the United States, or any agency or oﬂicer who would have been a proper defendant if named, satisﬁes the re- quirement of clauses (1) and (2) hereof with respect to the United States or any agency or oﬂicer thereof to be brought into the action as a defendant."

VI. Summary of developments elsewhere 30.23. The developments elsewhere outlined above show a certain amount Diverse of diversity of approach. The Saskatchewan Act," which is at the one end of the "PP'°"°h°s' spectrum, confers a very wide power onithe court----an approach also favoured by the Ontario Law Reform Commission. However, this approach has not es-

caped criticism. At the other end of the spectrum is the Alberta Limitation of Actions Act, 1970 which deﬁnes certain types of situations in which an amend-

ment could be allowed. The English Rules of the Supreme Court, 1960 stand between the two. According to Lord Deming, "the Court can allow an amend-

ment whenever it is just so to do." But the position in English law should be regarded still as ﬂuid.

CHAPTER 31 ARTICLES 1 to 5 : surrs RELATING TO ACCOUNTS 31.1. We now proceed to a consideration of the articles contained in the A1-tick 1, Schedule to the Act laying down various time limits. Article 1 reads as follows:--

"For the balance due on a mutual, Three The close of the year in which the open and current account, where years. last item admitted or proved is there have been reciprocal de- entered in the amount: 511011 Yea-1' mands between the parties. to be computed as in the account."

It is identical with article 85 of the Act of 1908 and 1877.

'Ontario Law Reform Commission Report on the Limitation of Actions, 1969. . 2Para 30.19. supra. _ - 1 14-14 M of IaJ&cAjN'DIg3 Article 2.

Article 3.

Suit against legal repre-

sentative of V the agent.

89m REPORT or LAW COMMN. or INDIA ON me LIMITATION ACT, 1963 ( Chapter 3I~Articles I to 5 : Suits Relating to Accounts.) ' This article made its ﬁrst appearance as article 87 of the Act of 1871, where it read as under:-- ' The time of the last item admitted "For the balance due on a mutual, Three _ 'or proved in the account."

open and current account where years.

there have been reciprocal de-

mands between the parties.

The phrase "mutual account", which is the crucial expression in the article, has come to acquire a well established meaning.' No difficulties at present exist _ as to the other words used in the article. It therefore needs no change.

31.2. Article 2 reads as under:--

"Against a factor for an account. , Three When the account is, during the years. continuance of the agency, demanded and refused, or where no such demand is made, when the agency terminates."

It is identical with article 88 oflthe Acts of 1908 and 1877. It corresponds td article 64 of the Act of 1871, with slight verbal changes in the last column.

~ No change is needed in the article.

31.3. Article 3 reads as under:--

"By a principal against his agent Three When the account is, during the for movable property received years. continuance of the agency, demanded by the latter and not accounted * and refused or, when no such for. ' , demand is made, when the agency terminates."

It is identical with article 89 of the Acts of 1908 and 1877. It corresponds to article 90 of 1871, with slight verbal changes. The last column in the Act of 1871 read--"When the account is demanded and refused." A 3f.4. Article 3, during its development from 1871, has given rise to. three types of problems. The ﬁrst was-- -

Does the article apply to a case when the principal sues, not the original agent but the legal representatives of the agent?

1 The High Courts of Madya Pradeshj' Punjab," Nagpur,' Calcutta,' Madras' and Allahabad? have held that the article has application to such a case. _The Privy Council has held article 89 of the Act of 1908 to be applicable in a suit .for accounts instituted by the sons for an account against their deceased father's agent.' 31.5. In an earlier Allahabad case' which was a suit under the Act of 1877, ' it was held that a suit to recover, from the sons of the deceased as representative , of his father, money which had been received by the deceased as pleader in his professional capacity on behalf of a client was governed by article 120 of the Act I 'See Hindustan Forest Co. v. Lal Chand, A.I.R. 1959 SC. 1349.

2Kashz'ram V. Stmtokbhai, A.l.R. 1968 M.P. 91. ' .

3.Iagir Singh v. Dheru, A.I.R. 1958 Pun}. 487.

'Deorap Zolba v. Laxmansingh, A.I.R. 1943, Nagpur 227.

5Bikram Kishore V. Jadab Clzandhr, A.I.R. 1935 Cal. 817.

'Appa Rao _v. Subba Rao, A.I.R. I927 Madras 157. ' ' 7Rdmrup Goshain v. Ramdhari Bhagat, A111, 1925 All. 683. ' 'Nobin Chandra v. Chandra Madhah, A.I.R. 1916 P.C. 148.

'Bz'ndrabrm Behari v. Jamuna Kumar, (1903) I.L.R. 25 Allahabad 55.

89m REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 99 (Chapter 31----Articles 1 to 5: Suits Relating to Accounts.) of 1877 (residuary article) and a period of 6 years was allowed. When article 89 of the Act of 1877 was pressed during the arguments, the court observed:

"Article 89, which is suggested as the article applicable to this case, has clear- ly no application, because the suit is not against the agent, but against the legal representative of the agent. It has been held by the Punjab Chief Court, in a case undistinguishable from the present one, that under such circumstances article 120 applies, and that the terminus a quo is the time when the right to sue accrues. The right of the plaintiff to sue thepresent defendant could not have accrued until he (the defendant) had received the money from his father on his father's decease."

Similar observations appear in another Allahabad case,' which was a suit against ,the heirs of an agent and, on the facts of the case, instead of article 89. the Court held that article 116 of the Act of 1908 applied.

31.6. In View of the deﬁnition of the word "defendant" occurring in section N0 chanie 2(e) of the Act of 1908 and the later decisions mentioned above} the controversy 35?? is could be said to have been put at rest, and no amendment of the text of the' a1'ti- fepftg-Il!taﬁV¢-A cle on this point is called for.

31.7. The second question that arose under article" was whether the demand Refusal whe- and refusal contemplated by the third column of the Schedule should be an ex-

press one?

31.8. Whitley Stokes} while dealing with this article, has added a footnote Whitley _ Stokesﬂview against the word "refused", which runs as under:-- and lam . C I .

"That IS, expressly refused--but see III C.L.R. 446." case aw Coming as it did from the pen of one who was also 3. Legislative Secretary tothe Government of India, this comment was noticed by the Calcutta High Court' and the Court observed as under :--

"The mere failure of the agent to render accounts on demand does not amount to refusal to render accounts within the meaning of article 89. The question whether the failure of the agent to render accounts amounts to refusal within the meaning of article 89, depends upon the circumstances of each case."

This point was again argued in a Bombay case5 by Mr. Setalvad and the court observed :--

"Mr. Setalvad refers to one or two decided cases in which it seems it was held 'that the refusal to render an account within the meaning of Col. 3, article 89, must be express. With al1_respect I differ from this view. In my opinion, whether an account was demanded and refused or not,must de- pend upon the circumstances of each case, and I see no reason why a refu- sal may not be inferred or implied from the «facts of the case." } 31.9. This reasoning appears to have been followed by the Calcutta High No céléange nee as to Court'-7 and the Chief Court of Sind". scod of ' "re 'Mathura Nath v. Chheddu, A.I.R. 1917 All. 14. ' 'Pa_ragraph 31.4, supra.

"Stokes Anglo-India Codes (1888), Vol. 2, page 987. 'Bliabatarini Debi v. Sheikh Blmlmdur Sarkar, A.I.R. 1919 Cal. 458.

"Karsondas Dltunjiblwy v. Surajbhan Ramrijnal, A.I.R. 1933 Bombay 450, 457. "Abdul Latiﬁ v. Gopeswar Cliattoraj, A.I.R. 1933 Cal. 204.

7Pran Ram Mookerjee v. Jagadish Natl: Ray, A.I.R. 1922 Cal. 355.

"Ganeshdas Lokuram V. Gangaram Dhz'ngar,.A.I.R. 1930 Smd_ 142.

100, Am-. Hobhouse.

Views of _ various High Courts.

No change.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMlTATION'ACT, 1963 (Chapter 31----Art1'cles 1 to 5: Suits Relating to Accounts.) 31.10. As the judicial view now seems to have been fairly well settled, we do not think it necessary to add any Explanation to indicate that the "refusal"

» could be an implied one.

31.11. The third point that arises under article 3 is: what should be taken as the point of time when the agency terminates', within the meaning of the '. third column of the schedule?

This was also a doubt lingering in the mind of Sir Richard Garth,' when he commented on the draft Bill that led to the Act of 1877.

"I now proceedto clause 90, by which the period of limitation ﬁxed for a principal to bring his action against his agent for moveable property receiv-

ed, and not accounted for, is three years from the time when the account is ' demanded and refused."

-"This clause would virtually give the principal' an almost indeﬁnite time for bringing his action. He may wait for ten, twenty or thirty years after the agent has left his service, when the latter may have lost every means of explain- ing or refuting any demands made upon him, and then at the end of that time the principal 'may demand money or any other property he thinks proper, and place the agent in the unfair position of having to discharge himself at that dis- tance of time from the claim."

'\ Upon this, Hon'ble Arthur Hobhouse Q.C., commented:--

"Surely if the relation of principal and agent comes to an end, there must be a time at which it is reasonable to presume that all accounts have been settled, and it is those reasonable presumptions which we are trans- lating into deﬁnite rules'in framing a statute of limitations. I think the time should run from the demand, or the close of the relation, whichever ﬁrst happens. But then section 20 ought to extend to acknowledgements given in 'answer to such demands, whereas it 'appears to be conﬁned to debts and legacies." a / « 31.12. The Madras High Court? held that the agency terminated with the sell- ing of goods, and did not continue till the accounts were settled and money re- mitted. A contrary view was expressed by the Calcutta, High Court in 'an' early case," its decision'being to the effect that the agents continue to be liable to the plaintiff till they accounted to him.

31.13. The Sind' and Allahabad' -view is that the \question of termination depends on the circumstances of each case.

/ _ 31.14. It appears that the pharaseology used in the article will have to be' applied and interpreted in the facts of each case. A change in the pharaseology would be no improvement in practice. In the result, article 3 needs no change.

'Hon'ble Sir Richard Garth D.O. letter to,the Hon'ble Arthur Hobhouse, Q.C., dated 8th March, 1876--Nationa1 Archives File pertaining to papers of 1877.

3Na1,-uvva and another V. Thammandra Yerrikalappa, A.I.R. 1934 Mad. 691 (l).

3Fink "v". Buldeo Dass, (1899) I.L.R. 26 Cal. 715. / 4Gordhandas v. Firm of Gokal Khataoo, A.I-R. 1926 Sind 264. " 5Babu Ram v, Ram Dayal, (1390) l.L.R. 12 All 541. _ 89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 . K 101 (Chapter 31~ArticIes 1 to 5; Suits Relating to Accounts.) (Chapter 32----Articles 6 to 55: Suits Relating to Contracts.) 31.15. Article 4 reads as under.-- A7591' 4- "Other suits by principles against Three When the neglect or misconduct agents for neglect orrnisccnduct. years. becomes known to the plaintiﬂ'."

It is identical with article 90 of the Acts of 1908 and 1877. Under Article 91 of the Act of 1871, the starting point was---

"When the neglect or misconduct occurs."e A V The present 'provision is sound in principle, and has created no diﬂieulties. No change is therefore recommended.

31.16. It would be seen from the genesis of the present article that a very serious defect in article 91 of the 1871 Act, namely, the omission of a reference to the time when the neglect or misconduct becomes known to the plaintiff, has been cured by adding the words "becomes known to the plaintilf" after the word "misconduct"; In fact, the draft of the 1877 Act' which was circulated for comments contained the clause "when the neglect or misconduct occurs or be- comes known to the plaintiﬁ", but the words "occurs or" were omitted in the ﬁnal draft. » ' On this reasoning, the High Courts of Allahabad', Calcutta' and Madras' 'have also brought, under the purview of article 4, cases involving movable pro-

perty entrusted to the agent, whenever there was an allegation of neglect or mis- conduct against the agent though article 3 deals with recovery of movable pro- P°ftY-

We do not deem it necessary to express any ﬁnal view on this matter, ex- cept saying that the applicability of the article would depend upon the facts and circumstances of each case.

No change is, therefore, needed in this article. \ 31.17. Article 5 reads as under :-- _ e Amide 5.

"For an account and a share of the Three The date of the dissolution."

fl," proﬁts of a dissolvedjpartnership. years.

It is identical with article 106 of the Acts of 1908 and 1877. and with article 106 of the Act of 1871.

The article needs no change.

CHAPTER 32 -' ' ARTICLES 6 TO 55 : SUITS RELATEIG T0 CONTRACTS 32.1. Article 6,prescribes a limitation period of 3 years for a suit for a sea- Article 5_ ;man's wages.'The starting point is the end of the voyage during which the wages are eamed--thus differing fromthe starting point under the general article relat- ing to wages (article 7), where limitation starts running as soon as the wages accrue due. ' The article needs no change.

'Jagauji v. Bandan, A.l.R. 1930, All. 397. , "Saktiprasanna Bhaltachai/ya V. Naliniranjun Bhattaclmrya, A.l.R. 1931 Cal. 738.

3Sankarana'ravana Ayyar and another, v. Trichondur"Dhannanarinalrrni Surklhithara Bhaiana Sobha through A. Sivaramakrishna Iyer, A.l.R. 1939 Mad. 114.

Article 7.

Salary.

Suits for arrears of salary on reinstatement in service.

891'H\ REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32--Articles 6 to 55: Suits Relating to Contracts.) 32.2. Article 7 reads as under :-

Three years.

"7. For wages in the case of any other person.

When the wages accrue "due".

The subject was covered in the Act of 1908 by two articles.

There was no parallel provision in the Acts of 1871 and 1877. The two articles on the subject occurring in the 1908 Act have been combined, on the recommendation of the Law Commission in its Report on the Act of 1908.

32.3. Some questions need to be discussed in connection with the article. The ﬁrst is--Does the expression 'wages' include 'salary'? Arguments have been addressed before the Courts time and again that the salary of a Goveminenti servant cannot be called "wages". In a case. before the Supreme Court, where the appellant was a clerk in the Accounts Department of the Railways, the Supreme Court observed' 1--

" .......... .. a good deal can be said of the contention that a claim for arrears of salary is distinguishable from a claim for wages. But, our dilﬁculty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this/ Court, after such a lapse of time when, despite the view taken by this Court that Article 102 of the Limitation'Act» of 1908 was applicable to such cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102 and i20 of the Limitation Act of -11908, in identical terms with- out any modiﬁcation. The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us, for arrears of salary falls within the purview of Article 102 of the Limitation Act of 190 ."

In a later case," the Supreme Court, relying on a judgment of the Federal Court', held that the term "wages" appearing in article 102 of the 1908 Act includes salary and a suit for the recovery of pay is covered by this article. It has also been held to include pension.' It is proper that the judicial interpretation should be codiﬁed by amending the. article? The clariﬁcation can apply to article 6 as well. ' 32.4. The second question in connection with article 7 relates to the situa- tion where the dismissal of a Government servant is set aside and, on re-instate- ment, he sues for arrears of salary. The Supreme Court has dealt with the matter thus". ' . ' "When the order of dismissal or removal is set aside by the Court on the ground of failure to afford the constitutional protection, the order is dec- lared invalid ab initio, i.e., as if it, in law, never existed, and the public ser- vant concerned was unlawfully prevented from rendering service. If that"be the correct view, salary due to the public servant concerned must be deem- ed to have accrued month after month because he had been wrongfully pre- vented from rendering service. The period of limitation under Article 102 'S. D. S. Srivastava' V. Union of India, A.I.R. 1974 S.C. 338, 341; (1974) 2 SCR 485. '-'Maimoona Khatzm v. State of U.P. (1980) 3 S.C.C. 578.

3Pmrjab Province V. Tarachand, A.l.R. 1947' F.C. 23, para 28, 33 (1947) F.C. S9. 'Anand Swarup V. Punjab A.I.R. 1972 SC. 2638, .

-"See paragraph 32.8, infra.

"'Jai Chand Sawhney V. Union of India, (1970) 2 S.C.I. 288, 289.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32----Artieles 6 to 55: Suits Relating to Contracts.) do run when the wages accrue due', and wages accrue due when in law the servant becomes entitled to wages."

32.5. These observations gave rise to a view that a period of three years for ﬁling the suit for arrears of salary would be computed from month to month."

irrespective of the date when the dismissalsis held to be invalid.

However, considering the fact that courts may take a longer time than three years to pronounce upon the validity or otherwise of the dismissal of a Govem- ment servant, some High Courts have been referring to the service conditions to enable such a Government servant to compute the period of limitation from the date when his dismissal was set aside by the court. The Bombay' High Court referred to the effect of Fundamental Rules 52 and 53 upon the Government servant's salary, which ceases upon his suspension when he becomes entitled only to get subsistence allowance. and ceases, altogether upon his dismissal. As a result of the Fundamental Rules, the Governinent servant cannot even osten- sibly put a claim to salary so long as the orders of suspension and dismissal stand. On this basis, the Bombay High Court held that the right of a suspended or dismissed Government servant to claim arrears of salary can arise only when the order of suspension or dismissal is quashed and set aside, either by the de- partment or by the order of a civil court. On this reasoning, the Court held the date of quashing of the order to be the starting point of limitation for a suit by such a Government servant for salary.

The Gujarat High Court'? like the Bombay High Court--has made the statutory rules as the plank upon which to base' its judgment in this regard.

32.6. The Cuttack High Court", on the facts of a case before it, held that i the Government servant was illegally- prevented from performing his duties, although he was ready and willing to perform those duties, and hence the cause of action arose only on the day when the court quashed the impugned order of transfer. ' The Madras High Court' had, before it, a case of an employee who was informed that the period during which he was off from service would be treated as if he was on duty. The Court observed:

"In the light of our observations as above, the third column in article 7, 'when the wages accrue due', in a case like the onevwith which we are faced, has to be interpreted, as we said, liberally and equitably. When an employee whose services have been illegally terminated has been reinstated and when he is informed that the period during which he was off from service would be treated as if he was on duty, then a fresh cause of action would arise on the date when he was reinstated and on the date when a communication to that effect was issued to him." ' " ' The Calcutta High Court' also held that a claim for arrears of salary of a public servantrwho had been wrongfully prevented from attending to his duties followed from the declaration that the relevant order was void and a nullity.

'State of Bombay v. Sarioo Pmsad Gumasta, I.L.R. (1968) Born. 1024. 'Laxmiben v. State of Gujarat, (1970) 'I Gujarat Law Reporter 51. 'Bai_kunth¢math Pratihari V. State of Orissa. (1974) Cuttack 'Law Times, 532. 'Union of India V. Venkatarama Nglidu, (1975) 1 M.L.J. 345, 350.

, 'Umasankar Das V. State of West Bengal, (1972-73) 77 C.W.N. 899.

103 104

Later Judg-

ment of the Supreme Court.

[ / Recommendation as to article 7.

Article 8.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32---Articles 6 to 55: Suits Relating to Contracts.) 32.7. It is now no longer necessary to cull out niceties from the facts pecu- liar to each case, because the Supreme Court has itself, in a recent judgment', distinguished its earlier case". The Supreme Court has observed: 7 "We are clearly of the opinion that in cases where an employee is dismiss- ed or removed from service and is reinstated either by the appointing autho- rity-or by virtue of the order of dismissal or removal being set aside by a civil court, the starting point of limitation would be not the date of the order of dismissal or removal, but the date when the right actually accrues, that is to say, the date of the reinstatement, by tl_1e"appointing authority where no suit is ﬁled or the date of the decree wl1'e'£re"a suit is ﬁled and decree." ' " ' The earlier casei having not been overruled, the obsenvaﬁons made therein that even if the dismissal or removal is declared ab initiaintralid, the salary due to the public servant must be deemed to have accrued month-«after month, may be construed as still holding the ﬁeld. The result is, that except in cases where the Government servant has been suspended and thereafter reinstated, the ratio of the earlier case may disentitle a Government servant from claiming arrears of salary for a period three years prior to the institution of the suit for such arrears.

32.8. In this position, we think that the matter should be put beyond doubt by amending the third column of article-7 as follows :--

"When the wages accrue due or, where the suit is for relief consequential on the setting aside of an order of dismissal or removal, when the order of dismissal or removal is aside." ' Further, as already recommended', an Explanation should be inserted be- low article 7, as under :--

"Explanation.-----In this'article and in article 6, the expression "wages" in- cludes salary and pension."

32.9. We now proceed to article 8. It reads as under:--

"For the price of food or drink Three When the food or drink is delivered."

sold by the keeper of a hotel, years. ' tavern or lodging-house. I A It corresponds to article 8 of the Act of 1908, quoted below :--

"For the price of food or drink One sold by the keeper of a hotel, year.

tavern or lodging-house.

When the food or drink is delivered."

I This was identical with article 8 in the Acts of 1877 and 1871.

_ The Law Commission recommended in its Reporton the Act of 1908 that the period of limitation should be increased from one year to three years'. This has been implemented in the Act of 1963. No further change is needed in the article.

'Maimoona Khatun v. State of U.P. (1980) 3 S.C.C. 578, 586. .

Zlaichund Sawhn?7's case, (1970) 3 S,C.R. 222; (1969) 3 S.C.C. 642; (1970) 2 S-C.J. 288 See paragraph 32. , supra.

'Uaichand Sawhney V. Union of India, (1970) 3 SC.R. 222; (1970) 2 S.C.J. 288. Sec para- graphP32.4, sugrgrz 3 > aragrap . , supra. , 'Law Commissionof India, 3rd Report (Limitation Act, 1908), page 30, para 71.

89TH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 (Chapter 32----Arti'cles 6 to 55: Suits Relating to Contracts.) » 32.10. Article 9 reads as under :-- s Aﬂi¢1¢ 9 "For the price of lodging. . Three When the price becomes payable." . years.

Article 9 in the Act of 1908 was as under:-- .

"For the price of lodging . One When the price becomes payable."

year.

Article 9 in the Act of 1908 was as under:'-- . ' "For the price of lodging . One When the price becomes payable"

- ' year.

This was identical with article 9 of the Acts of 1877 and 1871.

In the .Act of 1963 (the present Act); the period of limitation has been raised from one year to three years, as recommended by the Law Commission in its Report -on the Act of 1908.' ' / No further change is needed in the article.

Arfiiclels 10 32.11. (a) Article 10 reads as under :-- ' a" ' "Against a carrier for compensation Three When loss or injury occurs."

for losing or injuring goods. years.

Article 30.of the Act of 1908 reads as under:----

"Against a carrier for compensa. ne When the loss or injury occurs."

tion for losing or injuring goods. year] Article 30 of the' Act of 1877 and artie-re 36 of the Act of 1871 were iden tical, except that the period was two years. '

(b) Article 11 reads as under:----

"Against a carrier for compensa- Three When the goods ought to be deliver- tion for non-delivery of, or delay years. ed."

in delivering, goods. ~ .

Article 31 of the Act of 1908 reads as under:----- -1 ..

"Against a carrier for compensa- One When the goods ought to be deliver- tion for non-delivery of, or delay year. ed." V in delivering goods. -

Article 31 of the Act of 1877 and article 37 of the Act of 1871 were identi- cal, except that the period was two years. ' Acting upon the recommendations of the Law Commission," the period of limitation has been raised from one year (Act of 1908) to three years. in both _ the articles. ' 32.12 Articles 10-ll came to he noticed, bythe Supreme Court' in a case in C.,,,,,,,,.s,,,;.,,.-. which it was argued that because articles 30 and 31 of the Limitation Act, 1908 §8I9i(l)Wa¥s Ac?- (corresponding to articles 10 and 11 of the present Act), provided different points ' of time from which the period of limitation was to run, the claim covered by those articles is not for compensation for loss, destruction. or deterioration of the goods' within the meaning of sections 72 and 77 of the Indian Railways Act, 1890. This V "argument was, however, repelled by the Court, overruling a full bench' judgment of the Allahabad High Court"' to the contrary. Even though the Supreme Court has noticed the different. starting points of limitatiomin articles 10 and 11, it has not commented adversely upon it. nor has it made any suggestion for improve- ment. ' 1Law Commission of India, 3rd Report (Limitation 'Act, 1 , page 30. Para 71.-. ~ ?Law Commission of India, 3rd Re-port (Limitation Act 1 , page 304>ata 72. 3Governor General in Council V. Musadi Lal A.I.R. 1967 SC. 725.

'Governor General in Council v. Mahabir Ram A._I.R. 1932, All. 891 (F-B«)~ 15-14 in or u a CA/ND/83 106 Misdelivery.

lgeeommendaé non.

Starting point 'larder article Recommenda-

tion as to articles l0-ll.

89TH REPORT 01-' LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 (Chapter 32-~-Artie/es 6 m'55:' Suits Relating to Contrltcts.) 32.13. A single Judge of the Madras High Court' has held that article 31 of the Act of 1908 (now article 11) applies to a suit against a carrier for compensa- tion for misdelivery of goods, and not article 30 of the Act of 1908 (now article

10). The High Court placed reliance on Supreme Court case" which, though not exactly on the point, contains observations interpreting the expression "goods ought to be delivered". The Delhi High Court3 also relying on a Supreme Court case'.

has ruled otherwise. In the case relied upon by the Delhi High Court, however. the Supreme Court had not decided the question at all, as would appear from the following excerpt from the judgment' of the Supreme Court: A "The learned Counsel for the appellant argued that article 30 would apply to the suit claim, whereas the learned Counsel for the respondent contended that Article 31 would be more appropriate to the suit claim. We shall assume"

that Article 30 governed the suit claim and proceed to consider the,question on that basis."

On an examination of the matter, we see considerable force in the reason- ing ofthe Madras High Court that misdelivery should be included in non-deli- very (article 11), because, in such a case, the carrier has neither lost nor injured the goods (article 10). To put the matter beyond doubt, we recommend that the I ﬁrst columnof article ll should be revised so as to cover misdelivery."

32.14. The third column of article 10, which prescribes as the starting point the time "when the loss or injury occurs", has created diﬂiculties in the minds of consignors. They argue that if the goods have been lost by the Railways some- where in transit, it is impossible for them to know the date of such loss. Dealing with the subject, the Madras High Court' has held that the period runs from A the date of knowledge, and not the date of quantiﬁcation of the damage, and has observed that the article ought to be grammatically interpreted while apply- ing _''the commonsense rule" that the period begins to run from the knowledge of damage or injury. However, observations in another Madras case" indicate that the starting point would be the date of actual loss. The Allahabad High Court' has observed :~--

"The period of limitation runs from the actual date of loss and not from "thedate when it comes to the notice of the plaintilf; the date when he comes to know of' the loss is utterly irrelevant, ,not being an ingredient of the cause of action. It is axiomatic that the date', of the happening of an event is different from the date of knowledge of the happening. A consignee may not know of loss of the consignmentas soon as it takes place and if the lawrof limitation containedin 'article.30 operates harshly upon the consignee, 'the remedy is with the Legislature and not in distorting the language used in article 30." ' i i ' 32.15. Whenever open delivery of goods is taken, the courts have been holding that limitation would begin to""1"un from the date of open delivery which \ 'Union of India v. Ramchand Kishanchand '& Co., A.I.R. 1974 Mad. 335, 337. 2Botlamai V. Union' of India, A.I.R. 1962 S.C. l7l6. 30972) 74 Punjab Law Reporter 101.

'Union of India V. Amar Singh, A.I.R. 1960 S.C. 233. 5Union of India. v. Amar Singlz, A.I.R. 1960 _S.C. 233 para 18 (1960) 2 S.C.R. 75. 'See para 32.17,,infra for a draft_ - .. -

7M. K. R. Chattiar & Co. v. Union _of India, A,I,R. -1971 Mad. 34.

"Union of, India V. Ramchand Kishanc 7 {Co,._A.l.R. 1974 Mad. 335.

'0udh and Tirhut Rly. v. Mrs. Karam' gh ',,_A.I-R. 1958 All. 234; 243. V 1- 7 A ll' 89rIr REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 ' 107"

(Chapter 32--Articles 6 to 55: Suits Relating to Contracts.) brought to surface the damage to the goods} But the problem still survives when open delivery of goodsis not given. In order to avoid hardship to consig- nors, we recommend that the third column in both the articles (articles 10-11) should be amended so as to make knowledge of 'the loss, injury, delay, mis-deli- very, non-delivery or delay thestarting point-of limitation.' "

IV. Short-Delivery 32.16. There was previously some conﬂict of opinion on the question whe-Sh9rt--~ ther short delivery amounted to "loss" within the meaning of article 10 or whe- d°"V°'y C ther itamounted to "non-delivery" within the meaning of article 11. But the conﬂict has now been set at rest by the Supreme Court," which has held that where a part of the consignment has been delivered, that should be taken to be the date when the goods ought to have been delivered as a whole within the meaning of thesewords in article 31 of the Act of'1908 (now article 11). Conse- quently, no amendment of the article on this count is' called for.

/ V. Reconnnemhlion 32.17. In the light of the above discussion', we mecommend that articles Rccommendatiou and 11 should be revised as under:

"l0. Againsta carrier for compen- Three When the plairztijfhas knowledge of sation for losing or injuring years. the loss or injury."

goods.

"ll. Against a carrier for com- Three When the plaintiff has knowledge pensation for non-delivery of, or years. of the non-delivery, mis-delivery or delay in delivery of, goods. . cklay as the case may be."

32.18. This takes us to article 12, which reads as under ;-- Article 12_ "For the hire of animals, vehicles, Three When the hire becomes payable." boats or household furniture. years. .

It is identical with article 50 of the Acts of 1908 and 1877, and with article 49 of the Act of 1871.

C In the original Bill of 1871, the starting point of limitation (as mentioned in the third column) was "the date of the hiring". The Select Committee chang 5"

this to "when the hire becomes payable . v The article needsno change.

32.19. Article 13 reads as under :-- Ame]: '3.

_''For the balance of money advane- Three When the goods ought to be deliver- ed in payment of goods to be deli- years. ed."

p vered.

It is identical with article 51 of the Acts of 1908 and 1877, and with article 50 of the Act of 1871. A ' "'0'-'1-C Articles 51 to 54 of the Act of 1908 formed the subject matter of discussion in the Report of the Law Commission on the Act of 1908. The Commission 'Union of India v. Kcwal Parkash, /\,l.R. 1977 Delhi 146 'As to article 11, First column, see also paragraph 32.|4. supra. . 3B00ta Mal V. Union of India, A.l.R. 1962 SC 1716. 'Paragraphs 32.13 and 32.15, supra. _ ' ,5National Archives File No,' LEG. Act IX-XVI of 1-871,' pages, 15, 63.

as toartioles 10-11.

16%.

Article 14.

Starting point of Imitation-

goods delivered from time to time.

No change needed.

Articles 15-16.

8915 REPORT or-' LAW comes. on molt. on The Lmmmou ACT, 1963 (Chapter 32--- Articles 6 in 55'. Suits Relating to Contracts.) recommended' that these should all be replaced by one article for suits based on « _ contract or on tort. However, no change has been effected in the Act of 1963 in this regard. --

We also do not recommend any change in the article. ' 32.10. Article 14 reads as under :-

"For_'the price of goods sold and Three The date of the delivery of the dehv _where no ﬁxed period years. goods."

of credit is agreed upon. ' It is identical with article 52 of the Acts of 1908 and 1877, and with article 51 of the Act of 1871.

32.21. A question that needs to be considered is what should be" the start- ing point for limitation under article 14. when the goods are delivered at diﬁerent times? The view of the Madras High Court' is that when goods are supplied from time to time and the payment is also made from time to time, article 52 of the Limitation Act, 1908 [corresponding to article 14 of the present Act) would apply after the payments are appropriated under sections 60 and 61 of the Indian Contract Act, 1877. The result would be, that if the date corresponding to the delivery that is unadjusted falls beyond three years from the date of institution ' of the suit, the claim would be time-barred.

The Rajasthan High Court' has, on the other hand, regarded a payment in such case of goods sold at different dates as "payment" within the meaning of section 20 of the Limitation Act, 1908 (section 19 of the present Act), so as to give a fresh period of limitation to the items which are not harried by limitation on the date of that payment. The Karate, High Court' has held that even though some payments by cheque were made by the defendant towards the price of goods supplied from time to time on account, such a payment cannot be cons- trued as amounting to an acknowledgement of the debt under section 19 of the Limitation Act, 1963.

32.22. The manner in which payments are to be applied by the creditor has been codiﬁed in sections 59 to 61 of the Contract Act. The applicability of arti- cle I4 to such a situation would primarily depend upon the facts of each case, and on the mode of agreement between the purchaser and the seller.

Consequently, no amendment of the article is called for, to deal speciﬁcally with cases of 'delivery of goods from time to time.

32.23. (an) Article 15 reads as under :~--- -

"For the price of goods sold and delivered to be id for after the expiry of a ﬁxeﬁilveriod of credit.

Three When the period of credit expires."

years. ' It is identical with article 53 of the Acts of 1908 and 1877. In the Act of 1871, article 52 was in the same terms but the starting point was---"Thc expiry of -the period of credit".

and page 83, Article 1. .

"Md. Sultan & Co. v. Manickam, A.l.R. 1961 Mad. 388. 3Chandra Nath V. Prahlad Namin. A.I.R. 1961 Raj. 154. 'Charumti v. Purusﬁothama, A.I.R. 1973 Keg. 114., 'Law Commission of India, 3rd Report (Limitation Act, 1908) pages 31-32, para 74, 39TH~ REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 109 (Chapter 32--Articles 6 to 55: Suits Relating to Contracts.)

(b) Article 16 reads as under:--

"For.the price of goods sold and/ Three When the period of the proposed bill delivered to be paid for by a years- elapses."

bill of exchange, no such bill being given.

It is identical with article 54 of the Acts of 1908 and 1877, and with article 53 of the Act of 1871.

The recommendation of the Law Commission' in its Report on the Act of ~ 1908. to consolidate articles 51 to 54 of the Act 1908, has not been accepted.

32.24. Article 17 reads as under :-- Article 17_ "For the price of trees or growing Three The date of the sale."

crops sold by the plaintiﬁ' to the years.

defendant where no ﬁxed] period of- credit is agreed upon.

It is identical with article 55 of the Acts of 1908 and 1877, and with article 54 of the Act of 1871.

The article needs no change.

32.25. Article 18 reads as under :-- Ankle 13_ "For the price of work done by the Three When the work is done." plaintiff for the defendant at his years.

request where no time has been ﬁxed for payment.

It is identical with article 56 01' the Acts of 1908 and 1877, and with article '55 of the Act of 1871.

32.26. The Patna High Court" has held that when a contractor executes aArticle 10 and work for the Government under a contract which is ﬁnalised after the mvitationgitgggfnt of tenders, it cannot be said that the work was done at the "request of the Gov- ernment" (article 56 of the Act of 1908).' Hence, the case is outside article 56, and is governed by the residuary article,(article 120 of the Act of 1908, now article 113). ' ' A contrary view has been taken by the Andhra High Court} which has held

-that such a suit is one for claiming price for work done and not "for compensa-

tion for breach of any contract". A similar view has been taken by a Full Bench of the Allahabad High Court.' 'c Now that the period of Limitation under article "120 of the 1908 Act (resi- duaryi article) has been reduced to three years in article 113 of the 1963 Act, the plaintiif is not likely to get any advantage whether article 18 or article 113 applies to the factsof his case.

Consequently, no change is recommended in article 18.

'Law Commission of India, 3rd Report (Limitation Act. 1908), pages 31-32, paragraph 74, 2State of Bihar v. Rama Bhushan, A.I.R. 1964 Pat. 326.

-"Sub.baraiu v. Village Panchayar, A.l.R. 1965 A.P. 186. V i 'Zﬂq Parishad V. Shanti Devi, A.I.R. 1965 All. 590~(F.B.).;

110

Article 19.

Article 20.

Article 21 Article 22.

. Deposits.

/ 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32--~Articles 6 to 55 : Suits Relating to Contracts.) 32.27. Article 19 reads as under :-- I "For money payable for money Three When the loan is made." lent. years.

The article is identical with article 57 of the Acts of 1908 and 1877 and with article 56 of the Act of 1871.

The article needs no change.

32.28. Article 20 reads as under :~--

"Like\su"1t when the lender has given Three When the cheque is paid."

ajcheque for thefmoncy. years.

It is identical with article 58 of the Acts of 41908 and 1877, and with article 57 of the Act of 1871. No change is needed in this article.

32.29. 'Article 21 reads as under:

"For money lent under an agrcc- Three When the loan is made."

meat that it shall be payable on years. ' demand.

It is identical with article 59 of the Acts of 1908 and 1877. Article 58 of the Act of 1871 reads as under:

"For money lent under an agrec- Three When the demand is made."

ment that it shall be payable on years.

demand. ' No change is needed in the article.

32.30. Article 22 reads as under :

"For money deposited under an Three 'When the demand is made."

agreement that it shall be payable' years.

on demand, including money of a customer in the hands of his banker so payable.

It is identical with article 60 of the Act of 1908. Article 60 of the Act of 1877 was as under:-----

"For money deposited under an . Three. When.the demand is made."

agreement that it shallbepayable years. .

on demand.

There was no corresponding provision in the Act of 1871.

32.31. Controversies often _arise as to period of limitation applicable where a transaction is on the border-line between deposit and loan. The Supreme Court has observed' as under, regarding such border-line cases :--

"Further, as this was a deposit, limitation would run at the earliest 'from the refusal and not from the date of demand. It was contended that the plaintilf had made a demand as far back as 1948 and therefore the period of limitation would run from that date, and hence the suit was hopelessly barred by limitation, because six years expired some time in the year 1954."

'A bdul Karim v. Dy. Custodian General, =A.(1.n. 1964 so 1256, 1259.

\ l 89TH REPORT or LAW COMMN. or INDIA' ON THE LIMITATION ACT, 1963 (Chapter 32~AArticles 6 to 55: Suits Relating to Contracts.) Earlier also. the Court' had made general observations indicating the guidelines to be followed for determining whether a transaction is one of deposit or a loan:

I "Even though the transaction was a transaction of deposit as above stated, the deposit could be coupled with an agkement that it would be payable on demand."

"Such an agreement could be expressed or implied and if an express agreement in that behalf was recorded inthe document in the terms above, the transaction of deposit could not be thereby converted into a transaction of loan and the words 'we shall pay thesaid sum' could not convert the document into a promissory note."

"The promise to pay would be involved in a promissory note as well as in a deposit within the meaning of Article 60. Limitation Act and the court would have regard to the intention of the parties and the circumstances of thecase in order to arrive at the conclusion whether document was a pr'o- missory note." i I 32.32. In this position, it does not seem necessary to suggest any amendment in. the article. The question of ﬁxed deposits (deposits for a speciﬁed period) will be dealt with separately."

32.33. Although the Limitation Act contains fairly elaborate provisions re- garding suits for the recovery of money, it does not deal speciﬁcally with claims for the recovery of money which is placed in ﬁxed deposits with banks or other companies. As a result, one cannot immediately locate the article that is applica- ble to suits which are instituted for getting back money deposited for a stipulated period. It appears to us that the law of limitation should contain a speciﬁc provi-

sion on the subject, since the placing of money in ﬁxed deposits with companies and banks is now a very common practice. The articles of the Act which might 'possibly become applicable to such transactions----artiele 27 or article 55 are not speciﬁcally meant for ﬁxed deposits. If the law is to be easy of understanding. it is 'necessary that a speciﬁc article should be inserted in the Act to cover such suits-. This will help in removing the obscurity of position which has been referred toabove. ' According to a Supreme Court judgment, the period of limitation in the case of money deposited for a speciﬁed period would start running on the expiry of the period of deposit and a' demand. as such. is not a condition precedent to the starting of the period of limitation." According to the Allahabad High Court' and the Nagpur High Court', article 60 of the Act of 1908 (present article 22) does not apply to ﬁxed deposits. ,5 ' According to the High Court of Patna.' article 22 applies where a demand after the termination of the period is necessary. = According to the High Court of Jammu and Kashmir' and the High Court of Punjab and Haryana", a demand is required before money placed in ﬁxed deposit 'Annamalai v, Veerappa, A.I.R. 1956 S.C. 12. '-'See discussion relating to article 22A. infra.

3K. S. Want' v. New Akola Cotton Ginning Press, A.I.R. 1958 S.C. 437, 438, 439. 'Bank of Upper India V. Arif Hu.s'saI'n, A.l.R. 1931 All. 59(2), 62. , 5KashirIath V. N./4._C,G. & C0,. A.l.R. 1951 Nag. 255. , °Nokh-lal Sariunraslrd v. Mojibtm. A.l.R. 1939 Pat. 261.

"Jammu and Kashmir Bank v. Nirmal Devi, A.I.R. 1959 J&K 95.

'Hindustan Commercial Bank V. lograr Singh .A.I_R. 1974 P&H 211, .212. paragraphs No change needed.

Article 32A (proposed)-

suits to re-

cover money placed in ﬁxed deposit.

111

112' Position under earlier Act.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32-- 'Articles 6 to 55: Suits Relating to Contracts.) in bank can be claimed and. therefore, limitation starts from the date of demand. The Jammu and Kashmir ruling referred to above seeks to distinguish the Supreme Court judgment of 1958 (mentioned above)' on the ground that the Supreme Court case was a case of "debt", but, with respect. this does not appear to be a correct reading of the facts to which the Supreme Court judgment relates. The Punjab decision' (referred to above) seeks to distinguish the Supreme Court ruling of 1958 on the ground that that was not a case of deposit with a bank. --

The diﬂiculty seems to have arisen because the distinction between money _ payable on demand and money payable without demand does not seem to have been given its due prominence.

Where money is deposited with a bank, no doubt, the question whether it is to be paid only on demand depends on the intention of the parties and the terms of the agreement. Where money is payable only on a demand .being made. limi- tation does not commence until the demand is made? However, the case is different where the period of deposit is ﬁxed. It should be noted that banks and companies accepting deposits do not, in general, pay interest for "the period after expiry of the term of deposit. This shows that on expiry of the term of deposit the money becomes payable.

From the case law on the subject. it appears that there is considerable obs- curity as to the position concerning the computation of the period of limitation for money placed in ﬁxed deposits. In the absence of a speciﬁc provision on the subject, courts have had to hunt out the article to be applied "and to take resort to some provision or other which was not perhaps speciﬁcally intended for a ﬁxed deposit (i.e., deposit for a stipulted period). For example, in an Orissa case} it was held that the deposit of money was covered by article 145 of the Act of 1908, corresponding to article 70 of the present Act (Deposit of "movable property"), and that the limitation for a suit to recover money so deposited start- ed not on the date of demand. but from the date of the refusal following the demand.

32.34. By way of a statement of the legalpposition under the earlier' Act (Act of 1908), it may be mentioned that the situation was not unambiguous under the Act also. Article 59 of that Act, for example, applied to a suit "for money lent under an agreement that it shall be payable on demand." Again, article 60 covered certain other suits for money. But none of these articles was speciﬁcally applicable to a suit for the recovery of money deposited for a ﬁxed » term. Sometimes, the residuary article as _to "compensation for the breach of .

any contract' was resorted to'. it is to be remembered that generally where money is placed for a deﬁnite term, the liability to repay commences as soon as the term expires----which is the reason why articles dealing with money payable "on demand" do not take within their fold ﬁxed deposits. The result of this position is that 'both under the earlier.Act and under the present Act. the courts have to fall back upon the residuary article governing a suit for "compensation for breach of any contract" (article 115 of the Act of 1908, corresponding to article 55 of the present Act) or on some article not speciﬁcally intended for ﬁx- ed deposits.

'K. S. Wani V. New Akola Cotton Ginning Press, A.l.R. 1958 SC. 437, 438, 439, "Annamalai v. Veerappd A.I.R. 1956 S.C. 12. 15.

'Gouri Shankar Misra v. Bannamali Babu, I.L.R. (1979) 2 Cut. 108.

'Article 115, 1908 Act, article 55. 1963 Act.

51. s. Seema v. R. K. Bcmerjee, A.I.R. lS!36 Rang. 338.

891=n REPORT or L1}.W COMMN. or INDIA ON THE LIMITATION. ACT, 1-963 . M3 (Chapter 32----Articles 6 to 55----Suits Relating to Contracts.) 32.35. This is hardly a satisfactory situation. Once the deposit becomes Recommendation payable, Jimitation should start running and there is need for a speciﬁc provi- sicn on the subject. For these reasons, we recommend that a speciﬁc article on the subject, to be numbered as article 22-A should be inserted in the Limitation .' Act, after article 22. It should run somewhat on the following lines :----~ "22A" For money deposited under an Three When 'the st'ipulat'ed period agreement that it shall be payable Years expires."

on the expiry of a stipulated period, including money of a customer in the hands of is banker so payable.

v 32.36. This takes us to article 23. which reads as under : Articlc 23, _ "For money payable to the plain- Three When the money is paid." 3111' for money paid for the defen- years.

ant.

It is identical with article 61 of the Acts of 1908 and 1877, and with article .59 of the Act of 1871.

32.37. A question may arise whether the payment contemplated by the ar- Voluntary ticle should be voluntary payment or one 'in lieu of the coercive process of law. paymn"

' The following observations' of Anson' (in the context of the substantive law of contracts) may be of interest in this connection, though they do not deal with limitation as such: .

'"Thc payment made by the plaintiﬁ may be purely voluntary. It need not be the result of any legal' liability, or compulsion. Nor need it operate so as to relieve the defendant of a liab' ' ' for the claim to reimbursement is not affected by the fact that payment not made in discharge of a debt "for which the defendant would himself be liable."

The basis of the cause of action for the claim; in such cases is a matter of ' substantive law. There is a Madras judgment" from a very distinguished Judge CBha.shyam Ayyangar, J.) to the effect that it is immaterial whether the party seeking contribution made the payment voluntarily or involuntarily. In either , case, he is damnilied and the parties against whom ..he seeks contribution have to that extent been beneﬁted. A Calcutta judgment" bases the right and duty of ' contribution on the doctrine of equity (and not on contract). When a person's property is sold fora debt where the liability is joint, he does have, even accor- ding to the Calcutta view, a claim against his joint debtor for the amount paid in excess of his half share (though he cannot be said to have "paid" the amount). In -either view of the matter. the person makingepayment is not left without a remedy. We would not therefore recommend any amendment in the article under consideration.

32.38. It can happen' that when the plaintilf pays the money which the de- Two causes fondant is legally bound to pay, the payment will give rise to two causes of ac- ?§'."§1'.::h' tion---(i) cause of action for recovery of the money so paid by the plaintiff, of contract. governed by article 61 (of the Act of 1908) (corresponding to the present article

23).'(ii) cause of action arising on the date when the contract is broken, thus 'Anson's Law of Contract (23rd Ed.). para 594. 3Rajah of Vizianagram v. Rajah Setrucherla Somasokhararaz. (1903) I.L.R. 26 Mad. 686, 693, 696 (R8,). ' ' 3Cope Hath Munshi v. Chandra Natl: Munshi, (1896) l.L_R. 21 Cal. 814. 'Vishram V. Pannalal. AIR. 1937 Nag. 152. ' _ lie'-.14 M. or LI & CAIN1183 114 .

Volunteen makmnpar -

ment.

Article 24.

Case Law on article 24.

Case law.

No needto amend.

with article 60 of the Act of 1871. , 3911! REPORT OF LAW COMMN. or INDIA ON THE LIMITATION AC1', 1963 (Chaptrr 32--ArticIes 6 to 55--Suit.s' Relatingfto Contracts.) giving rise to a suit for damages for breach of contract. It is for the plaintiﬁ to ' elect between the two. No amendment of the article is called for on this' count.

32.39. As to the persons who make payment in a matter in which they have no interest (volunteers), this aspect does_ not appear to have come to surface In decided cases. But Ansonl observes :

"Secondly, the plaintiff have been under a legal liability to pay the money. If he chooses voluntarily to pay money in discharge of the defen- dant's' liability, he will have no claim to reimbursement .......... ..English law does not favour the negonlorum gésto-r, the 'oﬁicious bystander', who inter- venes, without being requested to do so, on another's behalf."

Though this facet of the matter, namely, that the article applies.only when the plaintilfhas paid money for the defendant where he has a legal interest has not been brought out in the text of the article. the decided cases do not seem to entertain any doubt that it is so."

In the result, no change is needed in article 23.

32.40. Article 24 reads as under :

"For money payable by the defen- " Three When the money is received."

dant to the plaintiff for money years.

'received by the defendant for the plaintiﬁ"s use.

The article is identical with article 62 of the Acts of 1908 and 1877. and V 'P 32.41. The. Supreme Court has ruled' that in orderto attract article 62 of the Act of 1908 (present article 24), it is notinecessary that at the moment of the receipt of money the defendant should have actually intended to receive it for the use of the plaintilf. As the same time, the article cannot apply if the right to refund does not arise immediately on receipt by the defendant, but arises ' .only by reason of facts that transpire subsequently. The philosophy of the ar-

ticle is that the plaintill has a cause of action for instituting the suit at the very moment of the receipt.

32.42. The article in" its actual operation has been held to encompass a variety of situations, such as (i) co-shares,' (ii) liability' of the legal representa- tive of a deceased person who has received the money, (iii) transferee of a dec- 1166.' (iv) suits' by auction-purchaser for the refund of sale price when it is dis- covered that the judgment-debtor did not have a saleable interest (in the 'pro- perty) and (V) payment' to benamidars. . \ 32.43. The case law on the article, extensive though it is, does not disclose any need for amending the article.

'Anson's Law of Contract (23rd Ed.), page 592. 'Cf. sections 68 to 70, Indian Contract Act, 1872. 3Venkata Subbarao v. State of A.P.. ALR. 1965 S.C. 1773. 'Asharﬁ Kuor V. Ram Pearey, A.I.R. 1939 All. 442. . 5Ramheri V. Rohini Kama, A.l.R. 1922 Cal. 499. ~ 5(a) Shanmughan v. Oﬂiia! Receiver, A.I.R. 1938 Mad. S32. ' (b) P. Malliah V. Brahmayya. A.I,R. 1960 A.P. 89. 7(a) Tltalcur Lal V. Nathulal, A.I.R. 1964 Raj. 140. ' (B) P. Malliah iv. Brahmayya, A,I.R. 1960 Al'. 89. '°Karanmur1hi V, Ramanatha, A.I.R. 1946 Mad. 248 07.3.).

89rH naponr or LAW COMMN. or INDIA ON "me LIMITATION ACT, 1963 115 (Chapter 32--Articles 6 to'55--Suits Relating to Contracts.) 32.44. This takes us to article 25 which reads as follows : Article 25.

"For money payable for interest Three When the interest becomes due."

upon money due from the defen- years.

dant to the plaintiff.

The article is identical with article 63 of the Acts of 1908 and 1877. and with article 61 of the Act of ~l87l.

lslo change is needed in the article.

32.45.-Article 26 reads as follows : Ankle 25_ "For money payable -to the plain- Three When the accounts are stated in tiﬂ' for money found to be due years. writing signed by the defendant of from the defendant to the plain- his agent duly authorised in this tiﬁ' on accounts stated between behalf unless where the debt is, them. by ~a simultaneous agreement in writing signed as aforesaid, made payable at a future time, and then when that time arrives."

It is identical with article 64 of the Acts of 1908 and 1877. In the Act of 1871. article 62 was as follows 1--

"For money payableeto the plain- Three When the accounts are stated, unless tiﬁ' for money found to be due years. where the debt is made payable at a ' from the defendant to the plain- future time and then when that time tiﬁ' on accounts stated between arrives."

. them.

No change is needed in the present article.

32-.46. Article 27 reads as 'under: ' "For compensation for breach of a Three When the speciﬁed time arrives or promise to do anything at a spe- years. the contingency happens." ciﬁed time or upon the happen-

ing of a speciﬁed contingency.

It is identical with article 65 of the Acts of 1908 and 1877. Article 63 of the Act of 1871 was in the same terms. with slight verbal differ-

Article 27.

' 611068.

The present article seems to need no change.

32.47. Article 28 reads as follows : I Article 28.

"On a single bond, where a day is Three The day so speciﬁed."

speciﬁed forrpayment. years.

It is identical with article 66 of the Acts of 1908 and 1877. and with article 65 of the Act of 1871.

No change is needed in the 'article.

32.48. Article 29 reads as follows: 7. Article 29.

"On a single bond, where no such Three The date of executing the bond."

day is speciﬁed. ye3f5- ' i It is identical with article 67 of the Acts of ' 1908 and 1877. and with article 66 of the Act of 1871. 6 \- « No change is needed in the article.

its _ Article 30 The concept bond.

Case law as to No change needed.

. \ - _' 89111 REPORT or LAW COMMN. or INDIA ON 1115 LIMITATION ACT, 1963 (Chapter 324-Articles 6 to 55----Suits Relating to Contracts.) 32.49. Article 30 reads as under:

"On a bond subject to a condition. Three years.

When the condition is broken.

I It is identical with article 68 of the Acts of 1908 and 1877 and with article _ 67 of the Act of 1871.

32.50. Since the group or articles (28 , 29 and' 30) deals with limitation for suits based on a bond, the use of the expression "single bond" occurring in arti- cles 28 and 29 needs some comment. The simple deﬁnition of "single bon " is that it is a bond merely for the payment of a certain sum of money, without any condition annexed to it.-

But even Halsbury,' while discussing "single bond", to fall back on Shakes- peare and quote from "Merchant of Venice" :3 "Go with me to a notary, seal me there Your single bond, and, in a merry sport. In such as place, such sum or sums as are Express'd in the condition, let the forfeit Be .............. .. ......... .." A Halsbury comments that such instruments have become rare and the term "single hon " acquired various meanings', including a bond given by one obligor as distinguished from one given by two or more.

32.51. Application of articles 28 , 29 or 30 would depend upon the terms and conditions of the bond in question. Such being the case. it is not surprising that certain amount of conﬂict did arise regarding the application of these articles. The conﬂict was, however, predicated more on the interpretation of the term of the "bond", that on any conditions of interpretation of the text of the articles?-' Article 27 is a general article covering breaches of promise to do anything at a speciﬁed time or upon the happening of a speciﬁed contingency. Certain con- ﬁict has emerged when the article is applied to breaches arising out of the bonds. For example, in a Madras cases, where a bond was executed for subscriptions payable to a chit fund in speciﬁed instalments, with the condition that the whole amount would become exigible on failure to pay any instalment on demand, the Court laid emphasis on the expression "on demand" contained in the bond and held that the claim for the whole amount due could be based only on the bond itself, and not on the original cause of action. This ruling did not follow an ear- lier one of the same High Court."

32.52. Liabilities of the principal and surety" and computation of the period of limitation based on a promissory note," have also given rise to some conﬂicting decisions. -

32.53. However the conﬂict regarding the appiication of these articles to the facts of a particular case turns more on the construction to be put on the particular 'Halsbury's Laws of England (4th Edition), para 1386.

"Merchant of Venice, Act 1, scene 3, lines 146 .et .3.

3BalakI-ishnudu v. Narayanaswami, A.I.R. 19l4.M 4, at page 6. , V 'Hari La! 1'. Thammwn Lal, A.I.R. 1923 Oudh 19.

-"Na'rain Das V. Mamwo Lat, AIR. 1935 A11. 405.

"Ramiah v. Sanka:-anarayana. A.I.R. 1958 Ker; 246.

7Gauri Shankar v. Surju, (1881) I.L.R. 3 All. 276, 279 (D_B.).

3Seetharama'yyar V. Munirami, A.I.R. 1919 Mad. 462.

°Sumyya V. Tirumalandhan Bapirasu, A.I.R. 1216 486.

"Chant Chandra v. Faithful, A.I.R. 199 Cal. 636.'; 3' ' "Samanarh Raju Ramamurty, A.I.R. 1957 or-isiaa 166.

89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 117 (Chapter 32-Artic1es 6 to 55----Suits Relating to Contracts.) document in question, rather than on a defect in the phraseology used in these articles. We therefore recommend no change in the text of these articles on these points.

32.54. Article 31 reads as under:-- Arﬁcic 31_ "Ona-bill of exchange or pro- Three When the bill or note falls due".

misory note payable at a ﬁxed years time after date.

It is identical with article 69 of the Acts of 1908 and 1877, and with article 68 of the Act of 1871.

No change is needed in the article.

32.55. Article 32 reads as under:-- Article 31 "On a'bill of exchange payable Three When the bill is presented." at sight, or after sight, but years -

not at a ﬁxed time.

It is identical with article 70 of the Acts of 1908\ and 1877.

Article 69 of the Act of 1871 read as under :-

"On a bill of exchange payable Three VWhen the bill is presented."

at or -after sight. years No change is needed in the article.

l 32.56. Article 33 reads as under:----

''On a bill of exchange accepted Three When the bill is presented at that. payable at a particular place. years place"

It is identical with article 71 of the Acts of 1908 and 1877, and with article 70 of the Act of 1871.

, No change is needed in the article.

Article 33.

32.57. Article 34 reads as, under:--

Artiele 34.

', "On a bill of exchange or pro- Three When the ﬁxed time expires."

missory note payablelat a ﬁxed years.

time after sight or after de-

mand.

It is identical with article 72 of the Acts of 1908 and 1877, and with article 71- of the Act of 1871.

No change is needed in the article.

I 32.58. Article 35 reads as under:----

"On a bill ofexchange of promi- Three The date of the bill or note."

. ssory note payable on demand years.

andnot aocohpanied by any writing restraining or postpon-

ing the right tozsue.

, The article has not undergone any change in the phraseology used, except that article 72 of the Limitation Act of" 1871 had provided the starting point of limitation as the date of demand, which, in the Act of 1877, was changed to the date of the bill or note. This brought the law of limitation in line with th technical meaning of "on demand'? -

Article 35.

' . 'Cf. Rowe y. Young, (1820) 2 Brod & B. 165, 180t2I RR. 91.

118

Article 36- Introductory. ' . State Acts for the relief of indebtedness.

Instalments by statute.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Clzapteri 32----ArticIes 6 to 55--Suits Relating to Contracts.) 32.59. Conflicting views expressed by the Bombay' and Allahabadz High Courts are sometimes referred to under this article. But the decisions referred to relate to problems of Hindu law and obligations imposed thereunder upon the son for the debts of the deceased father. Recently, this article (along with article 112) 'came up for consideration in the Allahabad High Court} which held that when the claim of a private person was barred by time on the date of his death, the devolution of his property on the Government by escheat would not enable the Government to take advantage of the extended period of article 112, so as to bring the cause of action within limitation. Herein also, the text of article 35 has not presented any diﬁiculty and we recommend no change therein. ' ' 32.60. Article 36 reads as under :--

Three years "On a promissory note or bond The expiration of the ﬁrst term payable by instalments.

of payment as-to the part then payable; and for the other parts, the expiration of the respective terms of payment."

It is identical with article 74 of the Acts of 1908 and 1877 and article 74 of the Act of 1871.

32.61. With the increased solicitude for thewelfare of the oppressed villagers and landless labourers, the Legislature has" stepped in to relieve the borrower of the hardship inherent in the unpleasant prospect of facing a decree, when, owing to natural calamities or failure of crops, he is unable to discharge his obligations.

One such Act is the Madras indebted Agriculturist (Repayment of Debts) Act. 1955, which deﬁnes a "debt'? as including even a decree or order of a court.

Section 3 of the Act provides that no suit for the recoveryof a debt shall be /i A instituted, and no application for' execution of adecree in respect of a debt shall be made, against any agriculturist in any civil or revenue court before the expiry of four months from the commencement of the Act. Section 4 prescribes a mode

-of payment of debt in instalments, while section 8 excludes the time during which the institution of the suit was barred from computation of _the period of limitation. "

Similar provisions exist in 'other State laws, like the Bengal Agricultural Debtors Act, 1936 and C.P. & Berar Relief of Indebtedness Act, 1939.

32.62. There was previously some difference of opinion as to whether article 36 of the Limitation Act could apply to cases where the debt had been made payable in instalments as a result of statute. This controversy was'reso1ved, as regards the Madras High Court, by the case of Bichal Naidu v. Muthuramanlim gam.' As was observed in another case5 :

"It is ordinarily not open to the parties to plead that the debt was divisible, unless' the contract had expressly stipulated therefor. But where a special enactment, which is invested with a overriding power with regard to any other law, creates this effect of liability to pay the debt only in instalments, it is reasonable interpretation to hold that each' instalment will furnish 1Narottamdas v. China, A.I.R. 1939 am; 464, 465. ' 2Narsingh- Misra V. Lalji Misra, (1901) I.L.R. 23 All. 206, 208, 209. _ 3Roop Kishore Seth v. State of U.P., 1978 A.W.C. 162, referred to m (1978) Yearly , Digest _co1umn 2355, _ _ . ~ = _'BichaI Naidu V. Muthuramalmgam, I.L.R;(1-- ~?,Mad. 1144. 5GopaI Udayar v. Mangala Udayar, (19611 74 L. . 66}.

\ 89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 .119 (Chapter 32~Articles 6 to 55----Suits Relating to' Contracts.) a distinct cause of action. At least for the purpose of limitation, and the right to sue, the integrality of the debt must thus be held severed into dis- tinct parts."

\ . ' .

32.63. It is axiomatic that where a contract undergoes a change owmg toNo change statutory intervention, the original contract is not the only document to be scannedV"°°d?d' for on identiﬁcationof the cause of action. In determining the nature of the} cause of action, one will have to take into account the statute also. Having taken all these aspects into consideration, we do not think thatthe article needs any change.

32.64. Article 37 reads as under : I Article 31- _ ' Introductory. ' "O11 3 P!'0mlS_S0ry note or bond Three' When the default is made, unless payable by instalments, Which years. where the payee or obligee waives PT0Vld¢}S that, if default be the beneﬁt of the provision and ma-'13 311 Payment of one or then when fresh default is made more instalments, the whole in respect of which there is no be due. such waiver."

' It is identical with article 75 of the Act of 1908. In the Act of 1877, in article 75 the wording was slightly different. Article 75 of the Act of 1871 reads as under: ' ~ "On a promissory note or bond r Three The time of the ﬁrst default payable by instalments, which years. unless where the payee or obligee provides that If defaultbe made waives the beneﬁt of the provi- in payment of one instalment, sion, and then when fresh the whole shall be due. default is made)' The law under the earlier Acts, is discussed in three cases of different High Courts.'-' ' No change in the relevant article was recommended by the Law Commisison In its Report on the Limitation Act, 1908.' --

32.65. In spite of the changes effected in the ﬁrst and third columns of the Conﬂjct ,, article as detailed above, certain amount of conﬂict did arise in the application:I'l'e1i":5."';'°';l«ds of this article to practical situations. It has been held by the Patna High Cou ' that in the case of an ordinary money instalment bond with a default clause which provides that if any instalment is not paid the whole sum would be due, the limitation for a claim to recover money due under the bond runs from the date of the ﬁrst default that is not waived. The creditor cannot stopthe period of limitation from running by waiting till the whole of the sum becomes due. Therefore, in such cases, it was no longer at the option of the creditor (unless he had waived the default) to stop the period of limitation from running.

32.66. However, :1 different view has been taken by a single' Judge of the Madras High Court," holding that the creditorgin .,such a case may sue (at his option) either for the instalments that have become overdue or for the whole amount. Article 75 (of the Act of 1908), it was held, was no bar to a suit on the instalment bond itself ﬁled after or before the expiry of the instalment period. for the recovery of the instalments which the debtor had contracted to 'Surat Lakslzi v. Narendra, U928) 33 C_W.N. 250; A.I.R. 1929 Cal, 292. 3Hurropath V. Maheroolab Moolih, (1876) I.L.R. 1 Born, 125.

"Ahmed Ali V. Haﬁzzz (1881) I.L.R. 2 All. 514.' ' 'Law Commission of India, 3rd Report (Lim'Qtion Act, 1908) page 36 para 92. 5G0kul Mahtan V. Sheoprasad, A.I.R. 1939 Pat."_433, 442, I.L.R. '18 Pat 459 (F.B.). 'Ayyathurai v. Ibramsa Rowtlzar, A.I.R. 1949 Mad. 592, paragraph 4-5.

120

No change Needed.

Article 38.

89m REPORT or LAW COMMN. or men. ON THE LIMITATION ACT, 1963 , (Chapter 32~~ Articles 6 to 55--Suits Relating to Contracts.) pay and which had not become themselves time-barred under article 74 of the Act of 1908 (now article 36). The two remedies are co-existent, and both are open to the creditor. The creditor has his choice either to wait and sue for the instalments in default under article 74, or to enforce the default clause in a suit contemplated by article 75 (both of the Act of 1908). A suit ﬁled under article 75 may be dismissed 'on the debtor proving waiver by the creditor of the default that entitled the creditor to ﬁle such a suit, in which case the creditor can, of course, still fall back on his right to -sue for instalments within the time limits prescribed_'by article 74. The creditor has also the other alternative of suing to en- force the default clause for a subsequent default which he has not waived within the period prescribed by article 75. Reading the two articles together, the contention that because the whole amount becomes payable on default, the creditor must sue on the wholebond within three years of. such a default could not be accepted. Thus the plaintiff has the option of enforcing the default clause in article 75, and if he does not do so, he must be deemed to have waived the beneﬁt of the provision, and he then can fall back on his ordinary right of suit on the covenant to pay by instalments under article 74 (present article 36). -

32.67. In one case before the KeralaHigh Court,' an argument was addressed that once a default has taken place in the payment of instalments, time starts running from the date of default and a suit ﬁled three years after the first default is also barred by time. But the High Court held that default in each instal- ment creates a separate cause of action and causes of action within three years before the suit are not barred.

32.68. It seems that the applicability of article 37 to a particular case de- pends largely on the terms of the bond and on any statute which may govern or modify the terms of the bond as a matter of substantive law. The words "creditor shall have liberty" may, for example. create an option. while more stringent words may rule out an option. Waiver, again, is /a mixed question of law and fact. and whether the waiver was express or implied will 'have to be discerned from the facts of each case? This is evident from numerous rulings of High Courts, involving different facts situations.'-5 In this position, no amendment is recommended in the article. 32.69. This takes us to article 38. Artic1e'38 reads as under :

"On a promissory note given by Three years. The date of the delivery to the the maker to a third person to payee."

be delivered to the payee after a certain event should happen.

It is identical with article 76 of Acts of 1908 and 1877. Article 7d of the Act of 187 l read as under 2' "On a promissory note given by Three years. The time of the delivery to the the maker to a. third. person to payee."

be delivered to the payee after a certain event should happen.

No change. is needed in the article.

1Kochapp¢m v. Palmland Corporation, A.I.R. 1977 Ker. 201. 2Deviddas v. Parma Gokalfa. A.I.R. 1$9 M1'. M3, 414. 3Aiud!u'a V. Kunial, I.L.R. 30 All. 123, 125.

'Malian Lal V. Tika Ram, I,L.R. 41 All 104, 106. _ 'Lalra Pruad V. Gaiadhar, A.I.R. 235--24l.

89TH REPORT or LAW mm-IN. or INDIA oN THE LIMITATION ACT, 1963 121 (CI1a;iteI' 32~~Arric/es 6 to 55: SuI'ts»Relati;Ig to Contracts.) / 32.70. Article. 39 reads as under:---- , Am-dc 39.

"On a dishonoured foreign bill Three years. When the notice is given."

where protest has been made i 'and notice given.

It corresponds to article 77 of the Act of 1908, which was as under:

"On a dishonoured foreign. bill Three years. When the notice is given."

where protest has§been'_made . ' and notice given. \ Article 77 of the Act of 1877 was in the same terms. So was article 77 of the Act of 1871.

The article needs no change.

, 32.71. Article 40 reads as under:---- ' Article 40_ 4 "By the payee against the drawer Three years. The date of the refusal to accept." of a billof exchange which has been dishonoured by non' acceptance. .

It is identical with article 78 of the Actsiof .1908. 1877 and 1871.

No change is needed in the article.

32.72. Article 41 readsas under :-- Amide .,I_ "By the acceptor of an accommo- Threeyears. When the acceptor pays the dation-bill against the drawer. amoung of the bill."

It is identical with article 79 of the Acts of 1908 and 1877. Article 81 of the Act of 1871 was as follows:--

"By the acceptor of an accommo-- Three yearr. When the acceptor pays the dation-bill against the drawer. amount."

No change is needediin the article.

32.73. Article 42 reads as under :~~« V Amide 42';

"Bya surety against the principal Three years. When the surety pays the credi- debtor. . tor." g It is identical with article 81 of the Acts of 1908 and 1877, and with article 7 82 of the Act of 1871.

32.74. A/resume, of the case law under this article shows that while ditIe- Case law rences of opinion do arise in regard to the rights and liabilities of the surety under the general law of contract and the terms of, tlieisurety bond. the wording ~ of the article. alone and by itself, has not given rise to any serious difference of opinionand hen/cc no textual change is recommended in the article.

o 32.75. We now proceed to article 43. it reads as under:-- Article 43' "By :1 surety against a co-surety. Three years. When the surety pays anything 7 in excess.

y it is dentical with article 82 of the Acts of .1908 and 1877. and with article 83 of the Act of 1871.

g No change is needed in the article.

17--14 M gr I;J&CA/ND/83 .122 ' Article 44.

Article 45.

89TH REPORT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (_C/mpltr 32--- Artie/0.8' 6 I0 55: Suits Relating to Contracts.) 32.76. Article 44 reads as under 2- "(a) On a policy of insurance when the sum insured is paya-

ble after proof of the death has been given to or received by the insurers.

"(b) On a. policy of insurance when Three years.

the sum insured is payable after proof of the loss has been given to or received by the insurers.

Three years.

The date of the death 'of the deceased, or where the claim on the policy is denied, either partly or wholly, the date of such denial."

The date of the occurrence causing the loss, or where the 'claim on the policy is denied, either partly or wholly, the date of such denial."

7 Article 86 of the Act og l877,rca(l as under:~--

"(a) On a policy of insurance when Three years.

the sum insured is payable after proof of the death has been given to or received by the in-

surers.

"(b) On a policy of insurance when the sum insured is payable after proof of the loss has been given to or received by the insu-

rers.

Article 86 of the Act of 1877 "On a policy of insurance when the sum assured is payable immediately after proof of the death or losshas been given to or received by the insurers.

Three years.

The date or the death of the deceased.

The date of the occurrence caus-

ing the loss."

read as under:--

When proof of the death or loss is given or received to or by the insurers, whether by or from the plaintiff or any other per-

son."

This was identical with article 88 of the Act of 1871.

Article 86, as quoted above from the Act of 1908, was substituted in it by the Insurance (Amendment) Act, 1941, section 68. Previously, the time ran from' "when proof of the death or loss was given to or received by the insurer."

In the Act of 1963, the words "or where' the claim on the policy is denied, either partly or wholly, the date of such denial" in the third column of both the clauses of the article are new and were brought in at the Joint Committee stage.

iThey provide an alternative starting point of limitation with reference to life insurance policies and other policies. , The article needs no change.

32.77. Article 45 reads as under :-- i_ "By the assured to recover premia Three years. When the insurers elect to avoid paid under a policy voidable the policy."

at the election of the insurers.

It is identical with article 87 of the Acts of 1908 and 1877. and with article 89 of the Act of 1871.

The article needs no change.

\ 89rIr REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 123 (Chapter 32 ~Articles 6 to 55: Suits Relafing ro Contracts.) 32.73. Article 46 reads as under :------« Article 46:-ﬁstory, "Under the Indian Succession Three years. The date of the payment or dis- Act, 1925 (XXXIX of 1925), ' tribution."

section 360 or section 361. to compel a refund by a person to whom an executor or adminis~ trator has paid a legacy or dis- ' tributed asseis.

It corresponds to article 43 of the Acts of 1908 and 1877. In the Limitation Act,, 1871, this article found no place. The phraseology of the article has con- sistently remained the same except that the Repealing and Amending Act, 1930 substituted the words "Indian Succession Act, 1925 (XXXIX of 1925), section 360 or section 361," in place of the words "Indian Succession Act. 1865, section 320 and section 321 or under the Probate and Administration Act. 1881. section 139 and section 140." ' The article needs no change.

§2.79. Article 47 reads as under : Article 47 "For money paid upon an existing Three years. The date of the failure." consideration which 2 fterwards fails.

It is identical with article 97 of the Acts of 1908 and 1877, and with article ' 98 of the Act of 1871.

The Law Commission in its Report1 on the Act of 1908, recommended a , 1 proper placement of the article under the category of contracts, and this recom- mendation has been accepted.

32.80. Though the article has not evoked any controversy in its application, C°Dﬂi€t a solitary judgment of the Judicial Commissionerz, Oudh, held that when the ;:ig1f,¢m"° plaintiffs were in possession of some portion of the property transferred to Gonsidcration them by the defendant, it would not amount to "failure «of existing consideration," If,,:l,l,_°r as a part of the consideration is in the hands. of the plaintiffs.

This view (for which no authority was cited) has not gained currency and has not been followed in any subsequent cases. In a Bombay case'. it was con- ceded by both the parties that article 97 of the Act of 1908 applied even when there was partial failure of the consideration. In a Madras case', a feeble at- tempt was made to contend that article 97 (of the Act of 1908) did not apply where there was partial failure of consideration, which was brushed aside by the court:

"I can ﬁnd no authority for such a proposition and I am not prepared to accept as there is no reason why the words 'an existing consideration' in article 97 should be read as meaning 'the whole consideration for the con-

tract'."

To the same effect is a Punjab case.' 'Law Commission of India. 3rd Report (Limitation Act, 1908), page 38, para 10]. '-'Karim Bux and another V. Abdul Wahid Khan, A.I.R. 1924 Oudh 377.

"Burnt V. Kashiram. A.I.R. 1929 Born. 36]. ' .

"'Meenakshi V. Krishna Royar, A.I.R. 1917 Mad. 296. . ' 5Gt'llu Teekan V. Damodar Dass, A.l.R. 1972 Pun}. 23. I a 124 No need ~7 Aurel"?

Arlicle 49. i Article 50.

- "By the manager of a' joint estate Three years.

89m REPORT or LAW CUMMN. or INDIA ON THE LlMII.\'l'I()N ACT. 1963 (C/rapier 32-----~--A/'tic/cs 6 I0 55: Suits Relating to Contracts.) 32.81. in ,tliis position. no clariﬁcatory illIlCll(lI1lt:lll ol' the article is called for.

32.82. Article 48 runs as under :~~ "For contribution by a party who Three years.

has paid the whole or more than his share of the" amount due under a joint decree. or by a , t sharer in a joint estate who has ' paid the whole or more than his share of the amount of revenue due from himself and his co-

' sharers.

The date of the payment in excess of the p.?aint.ill"s own share."

It corresponds to article ')9 of the Acts of 1908. 1877. and to article I00 of the Act of 1871. In the course of its evolution, it has undergone certain verbal changes, but there is no surviving controversy on the article and no change is needed in the article.

32.83. Article 49 reads as under :~--~ When the right to 'con'tributicn "By a co-trustee to enforce Three years.

accrues."

against the estate of a deceased , trustee a claim for contribution.

It is identical with article 100 of the Acts of 1908 and 1877, and with article 101 of the Act of 1871.

No change is needed in the article.

32.84. Article 50 reads as under :--

The date of the payment."

of an undivided family for con- ' tribution, in respect of a pay-

_ ment made by him on account ' of the estate.

It is identical with article 107 of the Acts of 1908 and 1877. In in Act or 1371. article I07 read as iunder:»~ "By a Hindu Manager of a joint Threepyears. The date of the payment."

estate for contribution in res-

pect of a payment made by him on account of the estate.

32.85. When the 1871 Act and other Limitation Acts were sought to be consolidated by the Indian Limitation Bill of 1877, the Government Pleader of Dacca commented':

"Why should a difl'erent,rulc obtain when a manager of a joint estate is a Muhammadan and not a Hindu? It is well known that Muhammadans in . Lower Bengal recognise the joint family system almost as much as the Hindus." ' When the variegated nuaiiees of prevalence of the joint family system extending from Dacca to Malebar were explained to the members of the Select Committee, they decided to omit the word "Hindu" from the article, and the article without the word "Hindu" appeared as article 107 of the Act of 1877. This is t present position also.

.V \ 7'Mr. O. N. Mitter. Government Plcadcr. Dacca. Letter No. I. dated 2nd March, 1877, National Archieves File 1877, Paper No. 1, page 3. ' , under : ----

89TH REPORT or LAW comm. or INDIA ON ma LlMl'lA'I'I(JN ACT, 1963 125 (C/zlapter 32- --- Arti('/cs 6 to 55: Suits Relating to CoIztrrtct.v,) 32.86. As the article has not given rise to any recent controversies. no change Change not is recommended therein. "°°d°d' 32.87. Article 51 reads as under:--~ Article 51.

"For the proﬁts of immovable Three years. property belonging to the plain-

tiﬂ' which have been wrongfully received by the defendant.

When the proﬁts are received."

It is identical with article 109 of the Act of 1903.

Article 109 of the Act of 1877 differed in some particulars and read as "For the profits of inirnovablc 'l hree years. property belonging to the plaintiff which have been _ wrongfully received by the dc-

fendant. ' 8 When the proﬁts are received.

or where the plaintiﬂ' has been dispossessed by a decree after-

wards set aside on appeal;

\ when he recovers possession."

Article 109 of the Act of l87l was under:----

"For the proﬁts of immovable Three years.

property belonging to the plain-

tiff wrongfully received by the defendant.

When the prolits are received, _ or where the plaintiff has been dispossessed by a decree after-

wards set aside on appeal, the date of the decree of the _ ' appellate court." /* v 32.88. Cases of wrongful disposscssion of property and recovery of proﬁts Classiﬁcation-

arising out of that property wronfully received by the defendant can broadly be proﬁtscasfsnéf classiﬁed under two types: . ' fully received.

(a) The first is the case of the rank trcspasscr, against whom the" rightful owner ﬁles a, suit for recovery of possession and proﬁts wrongfully re-

ceived by the defendant. In such a case no previous litigation is involved and no problems would present themselves, because the real owner a would ordinarily» couple a prayer for rnesne proﬁts along with a prayer for ejectment and possession of the property in question while ﬁling a suit. ' /

(b) The second type of cases would arise when the wrongful nature of the possession of the defendant and the consequential receipt of proﬁts by him is declared -to be so by a judgment or decree of an appellate court. In such a case. the possession,and receipt of proﬁts would have been lawful, but for the reversal of the judgment appealed against and it is in the ﬁtness of things that a department of the-court should take upon itself the responsibility of restitution so has it been done by section 144, C.P.C.

32.89. The second situation' merits detailed discussion. It would be interest- Comments from ing to take a stock of the comments which were received when the draft bill of Sma" Causes Court Judge~--

1871 leading to the Act, was circulated Mr. N. H. Thomson," Esq. referred Calcutta.

to some High Court judgn/ientsi' and observed :

\ 1Paragraph 32.88 (b) supra. _ "~'Oﬂ'iciating First Judge, Small Causes ('ourt _Calcutta. Letter dated l')th December, 1870} Nationa ArchivestFilc I871, Paper No. l. 3(3) Jar curun V. Rtmce Ax/mmzl/I I\'m'r. 5 W.R. I25. .

(b) Masltook Ali Khan v. Jowalu Buklrs, I.L.R_ 2 All. 290.

126

Restitution.

a Supreme Court judgment as 'to restitution.

89m REPORT or LAW COMMN. or INDIA ON THE LIMII'/\I'10N ACT, 1963 . (Chapter 32-« ---Articles 6 I0 55: Suits Relating to Contracts.) "But what should be the rule when the party suing for the mesne proﬁts has been dispossessed of the land in respect of which mesne proﬁts are claim- ed, by a decree of court afterwards set aside on appeal."

5 32.90. From the legislative history' of article 51. it would be seen that the clause pertaining to recovery of possession consequent upon a decree being set aside an appeal (obtaining in the third column of article 109 of the 1871 Act and the 1877 Act) has been omitted in the 1908 Act. Commenting on this omission, the Mysore High Court' after comparing the phrascology of the two Acts, observed: ~ "In my opinion, this deletion indicates the intention of the legislature that article 109 (article 51 in the Act of 1963) would not be applicable to a suit for restitution."

,This reasoning has been adopted by theiAl1al1abad3 and Andhra Pradesh' High Courts, ' 32.91. Earlier, the High Courts of Lahore', Allahabad" and Bombay' had held otherwise.

The change inthe phraseology of the third column was noticed by the Madras High Court*': ' "The reason for omission was probably the change which section (144, clause (2), C.P.C. 1908 introduced, as a separate.' suit for recovery of such proﬁts was barred by that section."

32.92. The Supreme" Court has since held that an application for restitu- tion under section 144, C.P.C. is an application for execution of a decree and is therefore governed by article .182, Limitation Act, 1908 (present article 136)

--and not by article 181 of the Limitation Act, 1908 (present article 137)----a residuary article of limitation for applications. This position needs no change.

32.93. The Calcutta High Court'" has held that the true test for determining when a cause of action has accrued is to ascertain the time when the plaintiff could ﬁrst have maintained his action to a successful conclusion. Carrying on this analogy of "cause of action" to the Limitation Act, the Court held that a plaintiff who could sue for mesne proﬁts for the period from 1913 to 1918 only on 22nd ' June, 1918 is not debarred from maintaining the suit which was instituted on 28th April, 1921.

32.94. However, the general trend is represented by an earlier Allahabad judgement" which ruled that the period of limitation cannot be suspended once it has begun to run (unless that suspension is itself provided for in the Limitation Act) and that the plaintilfs are not entitled to get a decree for mesne proﬁts for more than three years prior to the date of the suit:

.. _ ' 'Para'32.87 snpra.

2BaIappa V. Waman, A.1.R. 1962 Mys. 235. 237.

"Ram Krishna Kaponr v_ Be/tart' La]. A.1_R/1963 All. 44.

'Venkata Ramanayya v. Sir1gay_\'a, A.I.R. 1967 ALP. 78.

5Basheshar Das V. Diwan Clzand, A.l.R. 1933 Lab. 615. "Ubaid-Ullah Khan V. Abdul Jalil Khqn. A.1.R. 1937 All. 481. 7Dullabhbl1aiHan.s'ji V. Gulalrbhai Morarji, A.l.R. 1938 Born. 153. 5Ran,t,-aswumi v. Al'agu_wmmzu/, A.l.R. 1915 Mad. 1133. "MaIiijib/mi V. Mani/rlmi, A.l.R. 1965 SC. 1477.

"'Dwijcndra Nurain Roy v. Jogcs Chandra Dc, A. LR. 1924 Cal. 601). "Ram Charmt Sahu V. Mata Prasud, (1927) I.L.R. 49 All. 565, 573.

89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Clmpitr 32 /Irticlrnr 6 to 55: Suits Relating to Comracis.) _ "It would be dangerous to lay down generaliy that there is some prin- ciple outside the Indian Limitation Act under which Limitation can be sus- pended. Such' a conclusion would be quite contrary to the intention of the legislature."

32.95. "Their Lordships of the Privy Council in the case of Soni Ram v. Kanihaiya Lalf themselves remarked that there was nothing in the Indian Limi- tation Act which would justify the Board in holding that' once the period of limi- tation had begun to run it could be suspended. Their Lordship considered that if they were to hold that by some reason the period of limitation was suspended. they would be deciding contrary to the express enactment of section 9 that 'when once time has begun to run, no subsequent disability 'or inability to sue stops it'. This remark of their Lordships clearly indicates that the period of limitation can- not be suspended once it has begun to run, unless that suspension is itself pro- vided for in the Act. We are, therefore, unable to' accept any universal principle of suspension of limitation outside the Limitation. Act'). --

127

32.96. The Calcutta High Court* ruled in 1908 that the words "when the pro- No changa as ' ﬁts are received" mean "when the proﬁts are actually received". As the point has '° """5"3 not recurred in recent cases. there appears to be no need to suggest any amend- ment on that score. "

32.97. Most of the suits under this article coming from the-mofussil relate Starting to agricultural property and the point of time _from which limitation should be deemed to be running (in regard to mesne proﬁts of agricultural land) became a matter of controversy. Unlike the occupant of a tenement or a building (the rent whereof is payable on a ﬁxed date of a month), a person in possession of an agri- cultural farm would be cutting the crops, drying them and selling them in the Mandi at various times of the year, and, depending upon the fertility of -the soil, might reap two or three crops a year. When the Draft Bill of the 1877 Act was circulated for comments, two views were expressed. The National Archives ﬁle for the 1877 Indian Limitation Bill contains a summary of the various opinions:

"Balu Opendro Nath Mitra, Government Pleader, Dacca is of the opi- nion--and.in this opinion the judge of that District by whom he was con- sulted, concurs----that the time allowed (three years) should be at least 'six years. if not twelve,~the time allowed for a suit for the recovery of the land "from the wrongful holder: and that the cause of action for proﬁts receivable in each year, should be. held to accrue on the ﬁrst of the following year. In any case the judge thinks that time should begin from when the proﬁts were "receivable", not "received", whatever the number of years the legislature may allow." ' "Mr. W. J. Money. Oliiciating Judge of Maimansingh, said the clause is very generally worried and it is not clear whether it is applicable to suits for mesne proﬁts. Added that it would seem. from the time when-the periodbegins to run being' ﬁxed to be "when the proﬁts are received", that the clause is not applicable to cases of dispossession and suits for mesne proﬁts' thereon; inasmuch as the rule for the calculation of the latter is that their determination is not limited to the amount actually received. but to that which, according to the assets, might with due care and diligence, have been realised, and the period of limitation dates from the time of dispossession." ' 'Sam' Ram v. Kanirhaiya Lal, (1913) I.L.R. 35 All_ 227, 237. (R.C.). "Pear_v Malian Roy v. Khclara-m Sarkar, ( I908) I.l..R. 35 Cal. 996.

128 89rH aeponr or LAW cmnm. or INDIA (DI THE LiMtrArro:~J ACT. 1963 | (C/Iflplcr 32 .»1rrr'clo.v 6 ID 55: S'uifs Reiatirzg to ('mm-(I('I.r.) '3238. "Mr. Charles D. Field,' :1 practising Banister of Calcutta, comment- ed in 1877 as under:

"'I think theptime in the third column ought to be, in respect of each / , years proﬁts, the close of the year in which they were collected. It would be extremely inconvenient to count the time for each instalmentpof proﬁts re- ceived on the gale days within the year."

b "lilhe Judicial Commissioner, Central Provinces also wrote in the same reat :

\ "Profits (as for example, rents from the ryots) might be received in small sums and on various dates. and it wouldbe a matter of no small dith- culty to determine when they actually reached the wrong doer. Mesne proﬁts as a general rule, cannot be ascertained until after the end of the year, and time ought to run from the date when they become annually due according to the custom obtaining in the place." l 32.99. "I:he Nagpur Judicial Commissioner's Court9 held that the appropria-

tion of crops commences from the date when the crops began to be cut and limitation runs from that date. notwithstanding the fact that the standing crops . were sold without the knowledge 'of plaintiff much earlier. This was a case under the C. P. Tenancy Act, 1920. But earlier the same court. while dealing with a case?' under article l09 of the Limitation Act, 1908. had held that the actual re- ceipt of proﬁts gives the starting point for limitation. In this judgment, the earlier views of Calcutta High Court. to the effect that the cause of action does not arise till the end of an agricultural year, were not followed.

¥'oints arlising . 32.100. For reasons not appearing from the Archives _ﬁle_ no attempt was cgignmgﬁsf made to pin-point the starting point of limitation with any exactitude. The pro- » how far they blems posed in the comments were two-fold : the ﬁrst was. whether the article s"W.iv°'» applied at all to the cases of mesne proﬁts and second, whether the starting point "of limitation should be taken to coincide with the actual cutting of the crops.

(i)4As regards the ﬁrst point (applicability to ntesne proﬁts), it can be said that the deﬁnition of "mesne proﬁts" in section 2(12) of the Code of Civil Proce- dure, 1908 and the elaborate manner in which section l44'of that Code deals with an application for restitution makes it clear that thearticle is inapplicable to cases of mesne profits to which the plaintiff is entitled. as a result of reversal of a lower court's order or decree. This has now been ﬁnally settled by the judgment of the Supreme Court.' * (ii) Coming to the second question (starting point) raised in 1877, it appears

--- to us 'that in these days of advanced methods of agriculture and crop rearing. when as many as three crops can be taken from the same land within a year. it would be impracticable to stipulate a particular day of the year, (such as the end of the agricultural year under the Land Revenue Codes), as the starting point of limitation. It could' happen in some cases that the farmland in question has been leased out by the defendant to a third party and the lease deed contains detailed stipulations about the mode of payment of the lease money. ln such a case, it would be open to the plaintiff to compute the running of time from such dates 'Letter dated 19th April, 1877. National Archives .File IR77, Paper 8. page 9.' 'Na¢huIa'll V. Shankerlal. A.l.R. 1924 Nag. 87. _ 'Gan~pat'rao V. Janga1'a._A.L.R. 1914 Nag 65.

'Mahijibhai V. Patel Manhlmi, A.l.R. 1965 S.C. 1477.' 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Clzapter 32- --Arti('/cs 6 to 55: Suits relating to Contracts.) stipulated in the lease deed. But amending the third column of the article under discussion would be no answerfor meeting such a contingency, because the phra- seology even now is adequate enough to take care of such cases.

32.101. As a result, no change is needed in article 51.

32.102. Article 52 reads as under:----

"For arrears of rent. When the arrears become due."

It is identical with article 110 of the Acts of 1908, 1877 and 1871.

Three years.

The article needs no change.

32.103. Article 53 reads as under:--

"By a vendor of immovable pro- Three years.

perty for personal payment of unpaid purchase money.

The time ﬁxed for completing the sale, or (where the title is accepted after the time ﬁxed for completion) the date of the acceptance."

It is identical with article 11 of the Act of 1908.

A In the Act of 1877, the corresponding article was article 111. which read as 'under:-- ' The time ﬁxed for completing the sale, or (where the title is accepted after the time ﬁxed for completion) the date of the acceptance."

This was identical with article 111 of the Act of 1871.

"By a vendor of immovable pro- Three years.

petty to enforce his lien for un- paid purchase money.

_ 32.104. The stages through which article 111 of the Act of 1871 has passed' show that in 1908 there was 'a shift from the concept of enforcement of lien for unpaid purchase money to a contract for personal payment of unpaid purchase money. The earlier position about treating the suit as based on the lien gave rise to considerable diﬂiculties, asis apparent from the statement of objects and rea- sons annexed to the Bill? which became the Act of 1908.

i"The amendment proposed will make it clear that this article is appli- cable only to suits to enforce the personal liability of the purchaser."

"It has been held -by the High Courts of Bombay, Madras and Allahabad that a suit by an unpaid vendor to enforce his charge on the land for the un- paid purchase-'money is governed by article 132 and not by this article: Chu- nilal v. Bai Fetha, I.L.R. 22 Bombay 846; Virchand v. Kamaji, I.L.R. 18 Bombay 48; Har v. Muhamdi, I.L.R. 21 Allahabad 454; Ramakrishna v. Subrahmania, I.L.R. 29 Madras 305 F. B., _overruling Natesan v. Saundra, I.L.R. 21 Madras 141 and Avuthala v. Dayumma, I.L.R. 24 Madras 233."

32.105. The Draft Bill which was circulated for comments evoked two. sug- gestions. The Advocate-General, Madras3 wrote :--

"In article 110, in the ﬁrst column, the words 'as a personal claim' may be added to make (the) meaning quite clear."

'Paragraph 32.103, supra, 2National Archives File, 1908, page 6.

3Mr, P. S. Sivaswamy Aiyer. Acting Advocate 'General Madras, letter dated 26th De- cember, 1907, National Archives File 1908, paper 5, page 1.

18--14 Moi' LJ&CAINDl83 No change needed in article 51.

Article 52.

Article 53.1 History.

_ 129 130 The starting point of limitation. ' No i change needed. -

Article 54.

. . .

Comment on the Bill 'of 1877.

I date of registration of the sale deed, probably because the draftsman 89TH REPORT or LAW COMMN. or INDIA ON THE LIMLTATION ACT, 1963 (Chapter 32--«Articles 6 to 55: Suits relating to Contracts.) And the Chief Justice of Bombay' suggested that:--

"This amendment is capable of improvement as it stands, it would cover a bit to enforce a lien for unpaid purchase money. I would suggest some such words as these 'for personal payment of unpaid purchase money'."

That is how the -present emphasis on "personal payment" came to be incor- porated in the article.

32.106. The third column of the article does not speciﬁcally refer to the intended to cover cases of sale of immovable property worth Rs. 100 /- or less, which can be conveyed by delivery of possession without any writing.

All the same. the tenor of the text of third column points out to the date of registration of the sale deed as the startng point, and the Patna High Court' has held that a suit for recovery of unpaid consideration would be time-'barred if not ﬁled within threeyears from the date of the accrual of the cause of action, which was the date of compulsory registration of the document.

32.107. There _is suggesion in a Madras case" to 1he'eﬁect that time should start running from the date when the vendor suﬁers some damage by the pur- chaser's default in not honouring promises to pay a part of the consideration of the transaction to a third party. Such a contingency cannot, however, be ' generalised and put in the language of the article. Depending on the facts of the / case, the vendor may not take recourse to this article at all, but to the agreement' to pay a part of the consideration to a third party at a future date incorporated in the deed of conveyance.

32.108. In the result, no change is recommended in article 53.' '\ 32.109. Article 54 reads as under :

"For speciﬁc performance of a Three years.

contract.

The date ﬁxed for the perfor-

' mance, or, if no such date is ﬁxed. when the plaintiff has notice that performance is refused."

It is identical with article 113 of the Acts of 1908'and 1877. Article 113 of the Act of 1871 was as under:

"For specific performance of a Three years.

When the plaintiff has notice that contract.

his right is denied". ~ 32.110, The history given above shows that the language in 1871 was different. When the draft Bill of 1877 Act was circulated for comments, the Secretary, Legislative Department commentedz' "No. 1l3----Speciﬁc performance----'When the plaintiff has notice tlgt I ' his right is denied'. This is from Angel] on Limitation, 5th ed., p. 73, citing _1Chief Justice L. Jenkins letter No. 2469, dated 18th December, 1907 from Acting Registrar, Bombay National Archives File, 1908, paper 6, page 13. ' 2Kazi'm Sher V. Jaswanr Devi (1969) B.L.J.R. 500.

3Navamam' Nadar v. Vedamanicka Nadar, A.I.R. 1933 Mad. 424. .

'Note by the Secretary. Legislative Department on Sir Richard Garth's remarks (on the Limitation Act) dated 22-10-1876, National Archives File 1877, page '7.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 A 131 (Chapter 32- Articles 6 to 55: Suits relating to Contracts.) Brown v. Tillson, 25 N.Y. 194, and seems in substance correct. But after 'night' insert 'to have the contract speciﬁcally performed."

Further, Mr. Charles D. Field' suggested the following improvements:

"I would add in (the last column as to all these articles 'or might with an due diligence have become known .

The expression "right is denied" in third column was replaced in 1877 by words referring to refusal of performance.

32.111. The' article has not given rise to any conﬂict of views. There wasArbit1'a1i0n a suggestion in earlier cases of the Allahabad High Court3 (though not followed awards' later on)'', that an award can be equated as a "contract" and a suit to claim speciﬁc performance on the basis of the award comes _within the purview of this article. The point has lost its practical importance, because,'in view of section 32 of the Arbitration Act, 1940, no suit can be ﬁled to enforce an award. ~ 32.112. However, evenlnow it is possible to envisage certain awards saved No Change from the purview of the Arbitration Act by virtue of sections 46 and 47 of that needed' Act, but in such cases, the statute setting up the machinery of arbitration would usually itself provide for theenforcement of the award. If not, the residuary ar- ticle in the Limitation Act can apply. Consequently, we recommend no change in article 54. ' 32.113. Article 55 rcads~as under : ' V . AY'i°1° 55- "For compensation for the breach Three years.' 'When the contract is broken or of any contract express or im- ' (where there are I successive plied not herein specially pro- breaches) when the breach in vided for. respect of which the suit is instituted occurs or (where the ' breach is continuing) when It ceases."

Articles 115 and 116 of the Act of 1908 were as follows:

¢'l15. For compensation for the Three years. When the contract is broken or breach of any contract, express (where there are successive or implied, notin writing regis- breaches) when the breach in tered and not herein specially respect of which the suit i:

provided for. instituted occurs or (where the . breach is continuing) when it , ceases. \ "116. For compensation for the Three years. When the period of limitation breach of a contract in writing would begin to run against a suit * registered. brought on a similar contract not registered."

This was identical with articles 115 and 116 of the Act of 1877. In the Act of 1871, articles 115 and 117 were in the same terms.

32.114. In the Act of 1908, article 115 'dealt with unregistered contract, haw Commis; either oral or in writing, while article 116 provided) for registered written con-S'°"5 R°P°"-

I 'Letter dated 19th April, 187]; National Archives File 1877, page 9. 5(a) Talewar Singh & Ors. v_ Balteri 'Singh, (1904) I.L.R. 26 All. 497.

(b) Raghubar Di' v. Madan Mohan Lal. (1893) I.L.R. 16 All. 3.

(c) Sukho Bihi & rs. v. Ram Sukh Das, (1883) I.L.R. 5 All. 263. . 3(a) Surat Singh & Ors. v. Umrao Singh & 0rs., A.I.R. 1922 All. 410,

(b) Shea Narain v. Rem' Madho, (1910) I.L.R. 23 All, 285.

132

Article 56.

No. 93. Declaration of forgery of /89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 32~~ArtI'cles 6 to 55: Suits relating to Contracts.) ( Chapter 33 ~Ar-ticles 56 to 58: Suits relating to Declarations.) tract. This dichotomy was found unnecessary by the Law Commission which', in its Report on the Act of 1908, recommended as under: I "If simpliﬁcation is desirable, as undoubtedly it is, all the above-men-

. tioned 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 three years may be prescribed. It is not necessary to retain the period of six years in case of registered contracts on the analogy of speciality debts under English law.''. ' The change has put an end to many of the earlier controversies which had i centered on the difference between the two articles. No further comments are needed on article 55.

L CHAPTER 33 ARTICLES 56 TO 58: SUITS RELATING TO_ DECLARATIONS 33.1. Article 56 runs as follows'.--

"To declare the forgery of an Three years. When the issue or registration instrument issued or registered. ' becomes known to the plain- C tiff." _ Originally a single article 93 appeared in the Act of 1871, which ran as under:-- ' "To declare the forgery of an Three years. 'The date of tlie issue, registration

-- instrument issued, or registered, or attempt."

or attempted to be enforced.

_ When the Act was proposed to be 'replaced in 1877, a Draft Bill containing the article the following revised form was circulated for comments :-

"'To declare the forgery of an Three years. The date of the issue, regis~ , instrument issued, or regis-

tered, or attempted to be en-

forced against the plaintiff.

33.2. Sir Richard Garth" found fault with the last paragraph of the proposed article and wanted that discovery of the forgery should be made the starting point :

tration or attempt, whichever last happens."

"I do not understand this. Suppose an instrument is ﬁrst forged and a month afterwards registered, and three years afterwards attempted to be enforced. From what time does the limitation run? I should have thought.

the time ought to run from the discovery of the forgery."

On these comments of Chief Justice Garth, the Legislative Secretary, Arthur Hobhouse, noted? ' Does it not want the addition, "whichever last happens,"

and attempt to enforce against the plaintiff .7"

instrument----The mere forgery of an instrument is not a cause of action, it is the issuing of it, or the attempt to enforce it, that is the important matter.

'I think the number is right as it stands.

'Law Commission, 3rd Report (Limitation Act. _1908), page 39. para lO7._ 3D.0. from the I-Ion'ble Sir Richard Garth (Chief Justice of Calcutta High Court) to the Hon'ble Arthur Hobhouse, Q.C., dated 24th July, 1876.

'Noted by the Secretary Mr. Arthur Hobhouse, Legislative Department on Sir Richard Gartlfs remarks on Limitation Act dated 12-12-1876; National Archives File 1877, Paper I, ' P385 7.' s 89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (C/mptcr 33-~ Articles 56 to 58: tS'uits Relating to Declarations.) 33.3. In addition to the point taken by Sir Richard Garth the draftsman had also to consider the opinion given by the Judicial Commissioner, Central Provinces, Nagpur, who made out a case for splitting up of article 93 into two' articles, one when the plaintiff' seeksto declare that an instrument is a forgery and another when a person attempts to base a claim on such instrument. He commented:---

"Art. 91, C01. 3, "WHICHEVER LAST HAPPENS". Better "as the . case may be," otherwise, it might be pleaded in the case of an instrument issued only that as the period of limitation begins to run from the date of the attempt to enforce it, and as no such attempt had been made, the period of limitation had not begun to run, and a suit could therefore be brought though more than three years had elapsed since the issue. If this is the intention of the Article had better stand:

Col. 1 Col. 2 Col. 3 To declare the forgery of an ins- Three years. ' When the instrument is attempted trument. . to be enforced.

"But, if not, it would seem better to divide the article into two parts thus:--

To declare the forgery of an ins- Three years. When the issue of registratioh trument issued or registered. becomes known to the plaintiff » (See Arts. 89, 90, 92, 93, 94).

To declare the forgery of an ins- Three years. When the instrument is attempt- trument attempted to be en- ed to be enforced against the forced. , plaintiff."

33.4. One can recapitulate that the draftsman also aware of the provisions Sectipn 42, of section 42 of the Speciﬁc Relief Act, 1877 which had been just passed and§_':'1'i°e'§°Act hence the suggestion of the Judicial Commissioner, Nagpur, regarding declaration1877. , ' simpliciter was accepted readily.

- 33.5. As a result of that article 93 was split uprinto the following two arti- Act of 1877. cles in the 1877 Act:

"92.To declare the forgery of an Three years. When the issue or registration instrument issued or registered. becomes known to the plaintiﬁ'.

93. To declare the forgery of an Three years. The date of the attempt".

instrument to be enforced ' ' against the plaintiff.

This scheme was continued in the 1908 Act and the present article 56 and the general article 58 cover the old articles 92 and 93.

33.6. It would be of interest to note that the shift from the date of issue or registration to the date when such issue or registration becomes known to the plaintiff only brought the statute book in harmony with a pronouncement of the Calcutta High Court' which had interpreted old article 93 of the 1871 Act as under :-- ' "The time when the period begins to run in such suits is 'the date of the issue, registration or attempt'. I should be disposed to hold that these dates were aipplicable respectively to the circumstances in which the instru- ment has been,published,--~that is to say, where it has been issued, the time begins to run from the date of the issue, where it has been registered, the {Fakharooddeen v. Po/gose, (1879) I.L.R. 4 Cal 209, 212.

134

No change needed.

Article 51.

89m REPORT or L.\W (Jt)M!\lN. or INDIA ON THE Lll\-ll'l'ATl0N AC1', 1903 (Chapter 33--~ArtI'c/r.'.s' 50 to 58: Suits Relating tuﬂDcc/arations.) time runs from the date of registration, and so on. But it is clear that the suit at any rate would be barred at the expiration of three years from some one or other of the acts described in the third column,~that is to say, the issue, registration, or attempt. The actsor matters speciﬁed in the third column of that schedule are acts which, acco'rding-\ to the intention of the legislature, put the plaintiff upon the assertion of his rights, and in the case of an instrument which is said to be forged, 'and which prejudices the plain- tiﬂf, the legislature apparently' thought that'he bught to commence the suit as he has notice of the instrument by the issue, registration, or attempt to enforcei "' 33.7. As 'the present article has not given rise to any controversies, no change is recommended. ' 33.8. Article 57 reads as under :--

"To obtain a declaration that an Three years. When the alleged adoption alleged adoption isgginvalid, or becomes known to the plain- never, in}f-act, took place. tiff."

This is identical with article 118 of the Acts of £908 and 1877.

In thelearlier Act of 1871, the corresponding provision was in article 129:

"To establish or set aside an adop- Twelve years. ;_ The date of the adoption, or tion. A (at the option of the plaintiff) the date of the death of adoptive fat;her."

33.9. The expression "to establish or set aside an adoption" in the ﬁrst column (1877 Act) was found to be a curious one by the Privy Council:' "It must be confessed that the words of the article are 'not such as to prevent doubt or difficulty in its construction. The expression 'suit to set aside an adoption' is not quite precise as applied to any suit. An adoption may be established, but can hardly be set aside, though an alleged or pre- tended adoption may be declared to be no adoption at all."

And further:

"It thus appears that the expression 'set aside an adoption' is and has been for many years applied in the -ordinary language of Indian lawyers to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature." ' 33.10. Article 129 of the Act of i871 was in 18771 split into two articles, articles 118 and 119. The expressions 'set aside' and 'establish' were also dropped and the starting point was altered. This scheme continued in the Act of 1908 and the Act of 1963. This change of cxprcssion is discussed in a Privy Council" judg- ment, thus: p ' "In the Act of 1871, as observed in the judgment in Jagadamba Chowdhrani's case, the wordsiusedv had no technical meaning, and they were treated as ex- pressing popular Ianguage to which in popular reasoning the meaning which . prevailed could attach. In the Act of 1877 and 1908, the matter is otherwise, The words 'a suit to obtain a declaration' are terms of art. They relate back "to llagadamba Clraodhranf V,' Dr:-khina Mohun Roy Chaodhri. ( 1886) I.L.R. 13 Cal. 308, ' 319, 320 (RC).

' 3Kalyana'appa V. Chanbasappa, l.L.R. 48 Bombay 411-, 425 (P.C.). ' .7 A of 1871 was criticised by Mr. A. B. Falcon' thus :-- _ 5 80m REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chdpte'r 33-Artie/cs 56 to 58 :Suits Relating to Dec/arrztions.) the Speciﬁc Relief Act passed in the same year l877, being Act No. 1 of that year, whereas the Limitation Act is No. XV.

Section 42 of the Speciﬁc Relief Act deals with declaratory decrees, and the illustration (Letter f) is much' in point : -- A "A Hindu widow in possession of property adopts a son to her de-

ceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, 'obtain a declaration that the adoption was invalid."

It is to this class of suit that this particular limitation applies. The date from which the time begins to run is a subjective or personal date; and the condition of obtaining the particular relief which is soughtrin a declaratory "suit is that the plaintiif should not be guilty of laches. the measure of laches being ﬁxed by th statute as six years. 4 33.11. The alternative starting point of 'death of adoptive' father in the Act 1871 Act-

criticised.

"With reference to No. 139. Mr. A. B. Falcon. officiating Judge of , Rangpur. raises the question whether the time allowed should not be extend- ed to twelve years from the death of the adoptingiparent; otherwise suits might. he observes, lie to recover 'possession from an adopted son many years after a suit to set aside the adoption was barred." v 33.12. The Limitation Bill 1877 reproduced article 129- of the older Act in corresponding article 125 of the Bill". When this Bill was circulated for comments and opinions, Babu Opendro Nath M-itter, Government Pleader, Dacca wrote':---

"The cases of adoption which come before the Court are generally cases of adoption made by a Hindu widow; after the death of herhusband. Suits to set aside adoption are therefore generally brought by reversionary heirs, ' who might or might not be in existence at the date of the adoption or the death of the adopting father. It need hardly 'be; said that they must be in existence at the date of the death of the adoptive mother or her daughter."

"The clause in column 3 is wholly insuﬂieient to meet the necessities of the case. The suit should be allowed to be brought (during the life of the adop- tive mother) at any time within twelve years of the date when the 'plaintiff's right to sue accrued, or after her death, within twelve years of the time when the plaintiﬂ' acquires a vested right in the property left by her husband."

"The wording of No. 125 is likely to induce a son illegally adopted by a Hindu widow to believe that after twelve years from the date of his adoption, his title as adopted son of the widow's husband will be un- impeachable. But under N0. 138 a Hindu reversionary heir may bring suit for possession at any time within twelve years of the death_of the widow or other female heir of the last male owner."

. "Suit to set aside an adoption should be expressly limited to declaratory, suiz'_r.'. In"suits to establish an adoption. the period of limitation should run from the denial of the adoption by the adoptive father, if the adoption took place during his lifetime. In other cases, it should run from the time when the plaintiff's right as adoptive son are interfered with. on the allegation that he has not been legally adopted."

'letter N0. M6 dated 2nd February 1871 National Archives File 187] paper 5. page 21. 5National Archives File 1877. nage l9.

3Letter dated 2nd March 1877. National Archives File 1877 Paper No. 1. page 4. 'Emphasis added._ 135 136 Suit for gleclaration

- 'simpliciter----

doubted.

Comments as to adoption.

Draft article-

1908.

"To obtain a declaration that an Six years.

alleged adoption is invalid, or never in fact, took place.

891'!-I REPORT or LAW COMMN. or INDIA ON THE LIMITATION Acr, 1963 (Chapter 33-------Articles 56 to 58: Suits Relizting to Declarations.) "In declaratory suits to set aside an adoption, the period should run from the time when the plaintiff knows of the adoption; while suits for posses- sion by setting aside an adoption, should be allowed to be brought within twelve years of the time when the plaintiffs right to possession accrued."

33.13. Another point of view, expressed in 1877, as summarised by Mr. N. H. Thomson was as follows' :--

"There seems to be a doubt whether a suit to set aside an adoption will lie unless consequential relief be asked, I.L.R. l Bombay, 248 and see L.R. 3 Incl. Ap. 72, 84."

33.14. Adoption offered a fertile ground for litigation and evoked comments from many quarters :--

Mr. O. Kinealy's note is instructive.

"'The period of limitation given for these suits seems intended to meet two cases of adoption, in the lifetime of the adoptive father, and adoption after his death by a widow under a power. The time ﬁxed from which the period of limitation begins to run seems open to objection as givingian option to the plaintill. Since, as far as possible, this period should com- mence at the time the cause of action arises, except in cases of fraud or concealment, and these are provided for by section 19, would it not be better if the third column ran thus: (where the adoption has taken place in the lifetime of the adoptive father) the death of the.adoptive father. (where the adoption has not taken place in the lifetime of the adoptive father) the date of the adoption?" 2 Another comment on this pointiwas as under:--

"The adoptive mother's death should also be added to the third _co1umn. . Having reference to article 138, a reversioner can sue for posses-

sion within twelve years from the death of, the widow (adoptive mother) by proving the invalidity of the adoption set up by her."3 Yet another comment was as under:--'\ "These sections provide for suits to obtain a declaration that an adop- tion is valid or that it is invalid. They do not provide, however, for a third class of cases, namely, those where a declaration is sought that an ' alleged adoption which is set up by the opposite partyx-never in point of fact took place."' 33.15. The draft article in the Bill' that led to the Act of 1908 read:

When the alleged adoption be-

comes known to the plaintiﬂ", or to some person who is' a nearer reversionary heir to the 4 person to whom the adoption is alleged to have been made.

than the plaintiff."

--'Note by Mr. N. H. Thomson, National Archives' File, 1877 paper No. 2, page 3. 2Note by J.O. Kinealy, Additional Judge, 24-Parganas National Archives File 1877, paper No. 5, page 3.

3Letter dated 22nd May 1877 from Babu Ramdas Sen for the members of Committee of the Murshidabad Association. National Archives File 1877 paper No. 18, page 2, 'Letter No. 233 D.A. dated 1'4th May, 1877 from Mr. W. H. Rattigan, Ofﬁciating Gove-

rnment Advocate. National Archives File 1877, paper No, 24, page 12 5National, Archives File, 1908 I I 39TH REPORT OF LAW C-.).~.tMN. or INDIA ON THE LIMITATION ACT, 1963 . 137 (Chapter 33 Articles 56 to 58: Suits Rrrlariizg to D('(-/almiolis.) The necessity of this amendment was brought out in the statement of Objects and Reasons' annexed to the Bill that led to the Act of 1908, in the following words :--

"The amendment is proposed to remove a conflict of authority, and it adopts the view taken by Bhashyam .Ayyanger, J.i,,in Chiruvolu v. Chim- volu, I.L.R. 29 Madras 3%' In a suit to set aside _an adoption where, but for the adoption. the estate would be in a Hindu female, remote reversioner has been held to claim through the presumptive reversioner in the, following cases:--~ Ayyadore v. Solar', I.L.R. 24 Mad. 405;

Chiruvolztiv. Chirzltvolu, I.L.R. 29_ Mad. 390 F.B;

Harmzth v. Mandi], I.L.R. 27 Cal. 379, at page 403;

Sr_'ini\'asa'v. Hmzm>z'nt, I.L.R. 24 Bom. 260 at page 266;

Siddeswar V. Sham C'/mm]. 23 W.R. 285 (decided under Act IX of' 1971);

Mririomovee v. B/zoolmn, 23 W.R. 42 (decided under Act XIV of 1859).."

T The contrary View has been taken in the following pases:--

Abinaslz v. I-Iarimzth, I.L.R. 32 Cal. 62, at page 71 ;

Bégwanta v. Suklzi, I.L.R. 22 Cal. 33, at pages 44, 45.

A' In the case of Chiruvolu v. Chiruvolu, I.L.R. 29 Mad. 390 F.B., however, . the Court observed that in suits relating to the alienations by a qualiﬁed owner (such 'as a Hindu widow) the presumptive reversioner cannot. on the current - of authority, be held to represent remote reversioners (at page 411). The con- ﬁict therefore is limited to suits relating to adoption."

33.16. On this darft, Sir B. K. Bose, Government Advocate, Nagpurg, made gommenb the following comment: . A§33Z'$i'§?"' Nagpur.

"The High Courts are in disagreement as to the scépe of these articles. Whether they apply to suits where consequential relief in the shape of possession of property is asked for or to mere suits for declaration without . any prayer for possession'. The present opportunity to clear up the matter should not be lost. The legislature waits until the Privy Council happens to settle the existing conllict of opinion."

33.17. Similar arguments were put by Rai Bahadur Sharat Chandra.Sanyal.C<.m_1r_ncnt- Divisonal Judge. Nagpur*:--~- 'M ]J?J"'1';:'f'1'3,;1gpuE_ t "The proposed amendment introduces a. curious, state of affairs and ' . it is. that limitation will run against one. when the knowledge of the alleged adoption is in another.

'National Archives File 1908. page 7. ' ' ""Letter No. 2063/V. 4-5 dated 19th December 1907 National Archives File 1908, Paper No. 2. page 5. _

-'Emphasis added. _ .

- 'l.e'l'i'er No. 2063/V. 4-5 dated 19th December, 1007 National Archives File 1908. Paper .

No. 2, page 7. 7 "

19-91}: M ofLJ&CA/ND/83 138 Comment-

Oudh.

Comment-

; soci tion, NW.

89TH REPORT or LAW comm. OF INDIA on THE LIMITATIoN- ACT, 1963 (C/mplcr 33- /lrIi(>/es 56 In 58: Suits Relating In Declarations.) Declaratory suits are often availed of as a matter of precaution for perpetuating evidence. The nearer reversionary heir may be an old man who may not care to undergo the worry and expenses of a litigation whose fruits he may not live to enjoy. Why should a remote reversioner (who does not claim through the presumptive reversioner) be deprived of his rights because he hears of the alleged adoption later? Though remote the eventual chance in his favour may be greater by 1' on of youth. This is after all a kind of -suit in which the court has a e discretion. I would word the amendment thus:»--'or to some person who is a nearer reversionary heir"

to the person to whom the adoption is alleged to have been made, then the plaintiff and through whom the plaintiff claims."

"I have assumed that article 117 (persent article 118) applies to decla- ratory suits only.'. But there are judicial authorities holding that it is available against possessory suits where the displacement of the alleged . adoption is the substantial dispute, and that the case of Jagadamba Chou-

dharani (I.L.R. 13 Cal. 308 P.C.) is still good law; (see I.L.R. 20 Mad. 40. I.L.R. 24 Mad. 405; I.L.R. 26 Mad. 261; I.L.R. 24 Born. 260 F.B. over-

ruling .I.L.R. 21 Born. 159 and I.L.R. 25 Cal. 354: I.L.R. 27 Cal. 242'.' I.L.R. 24 All. 195; I.L.R. 26 All. 40).

"In a Privy Council case (I.L.R. 25 Born. 337) Lord Hobhouse ignored the distinction between a declaratory/' suit and a suit for possession in which the same issue arises; observing that there was no principle in the 'doctrine of subserviency'.

of the present Limitation Act. But the opinion, coming from such an eminent authority might be quoted to support the View adverted to.

"It is desirable that the litigant public should know what 'the law is intended to be on this point by some contrivance "in the 'Description of Suit' column whether this "article applies ipurelyzto declatory suits or extends to p(.'.tse.ssor_\' sm'I.s as we] ."

33.18.' This uncertainty and conﬂict of opinion was also pointed out by the Judicial Commissioner and Additional Judicial Commissioner of Oudhi:

"Here, again, no one knows what suits will ultimately be held to be governed by this article. Some authorities consider that it applies only to cases in which a declaration_ is sought by the plaintiff: others "held that it ' applies to a suit for possession of property where the plaintiff became en- titled to possession on the death of a Hindp or Muhammadan female. It is needless to elaborate the difficulty. whichis well known."

33.19. This argument was supported by Babu Durga Charan Banerji.' Honorary Secretary Vakils Association. North-Westem Provinces:

("Article 117 (old article 118) is another article upon which there is a great deal of conﬂict of authority. Cases of adoption are generally cases relating to property "of large value and affect very large interests. The ﬁrst point of controversy is whether the article applies only to declaratory suits, or is also applicable to suits for possession of land in which the defen-

T dam in possession sets up an adoption which the plaintiffs must show was in-

valid or never in fact took place. The Calcutta and Allahabad High Courts 'Emphasis added. ' 3Letter No 2196/Vll-l. dated 16th December 1907 from FM. Desc. Chamier Judicial Commissioner Oudh. National Archives File 1908, Paper No. 7. page 3. -

3Letter No. 2196-VII-l. dated 16th December. 1907 from F,.M. Dese. Chamier' Judicial Commissioner Oudh. National Archives File 1908. Paper No. 7. natze 6.

.x. ,;.

: \ The case came under article l2(al of the 2nd Schedule' 89TH REPORT or LAW COMMN. OF lNl)lA ON THE Ll.Ml'l'ATlUN AC1', 1963 C ' 139 (Chapter 33----Artic/es 56 to 58: Suits Relating to 1)eclaratioIz.) and the Punjab Chief Court takes one view and the Madras and the Bom- bay High Courts take another."

33.20 Some other aspects of the subject were discussed by Mr. F.D.P.lL$psi:inn'i:t:nJt'-Id C Oldﬁeld,' Acting District Judge, Tanjore, whose comments, however, are 11otTanjore_ 3 ' material for the present purpose.

33.20(a) The Advocate-General, Madras, Shri P. S. Sivaswami Aiyax',Coniment-

' , P. S. Shivaswamy i wrote*-- [ye,-_ . , _ . , Advocate "It is to be regretted that these articles have not been amended so as G¢nm,1_ to exclude front their scope suits for the possession of property in which aM'ad""- question may be raised as to the validity of an ad.0[)ti0n". It may, on the one hand, be urged that questions allecting the status of persons should be set at rest in as short a period as possible. On the other hand, the view adopted by _somc of the High Courts that these articles' govern a suit for possession also has led to very serious hardship and in my opinion much greater than the hardship supposed to arise from the opposite view. The object of declaratory suits being merely to preserve evidence, the omis- sion to bring such a suit ought not to be made to affect substantive rights. The subject is exhaustively discussed in the dissenting judgment of Bhashyam Aiyangar, J., in 26 Mad., 291 and the hardships and anomalies ﬂowing from the View of the majority in that case are fully pointed out by him."

33.21. Sir Lawrence Jenkins, Chief Justice, Bombay High Court, expressed ggmmcnt. . himself this' : ' Chm' 3"5"°'

- L.Jenkins.

_ _ _ _ Bombay.

"It is most necessary to set at rest the question whether these articles apply where the assertion or denial of an adoption is a necessary step towards relief. ' It is a question of policy which view should be taken. I am strongly in favour of the article being made applicable, as this will tend to diminish litigation and prevent hardship. I think it most undesirable that questions as to adoption should be raised after a long lapse of time when proofs have disappeared and modes of life formed on the assumption that the adoption is good." ' ' 33.22. Mr. Justice N. G. Chandavcrkar of the Bombay High Court agreed cognmem-

with the Chief Justice," and commented as under". ' MR Justice N-G; . ' Chandavetkar. ' "I concur in all the suggestions made by the Chief Justice in his minute.

I too think that the conﬂict of authority as to the~applicabiIity of articles 118 and _119 of Schedule 2 to the Limitation Act-should be set at rest and that the shorter period of limitation (6 years) should be deﬁniteljnprescribed by the Legislature' for all suits relating to adoption. whether they are for the recovery of the possession of property or not. The necessity for which aaclear pronouncement on the part of the legislature will be taken 'from a few considerations relating to adoption cases and an adoption is made generally of a minor and it is made either a sonless Hindu or by his 'Letter No. H304. dated 9th December 1907, National Archives File 1908, pages 14-15. 3Letter No. 352, dated 30th April, 1908 National Archives File 1908 Paper No. 27, ' page 1.}. I * 3Emphasis added. I 'Chief Justice L. Jenkins. Bombay High Court letter No. 2469, dated 18th December. l907. National Archives File 1903. Paper No. 5, page 13. . ' 5Parapragh 33.21, supra. 5 -

'Letter No. 2469, dated 18-l__2-1907, National Archives ﬁle 1908, Paper No. 5, page 14.

140 "

Commentg.

l_2-at AS59613-' ziou, Aimroati.

~/ Comment?

District Judge.

Vimgapatnarn.

Alternatives open to .

pi-esuinptive reversioner 89TH itiziroitror LAW cumin. or INDIA on rite LIMITATION ACT, I963 (Chapter 33~Ar/isles 56 to 58: Suits Relating to Declarations.) widow on his death. When it is by thefomier, generally again, in fact in 99 cases of a hundred, he adopts when he is about to die. On his death, if the widow is favourable to the adoption, there are the so-called reversio- naries of the deceased who are ready to take advantage of her positionland involve her and the boy in litigation. 'In such cases it is adding to the-

difficulties of the widow and the minor to prescribe a longer period than 6 years for a suit attacking the adoption either on the ground of its lactuiii or invalidity. It is the same if -the widow is not favourable to the adop- tion or where the widow herself .has adopted, a boy. In advocating the shorter period of limitation 1 am relying upon what I believe has been the beneﬁcial result of the Full" Bench decision of the Bombay High Court in Hanmanth v. Srinivas. Before the -decision," litigation relating to adop- tion had been much more ripe in this residency than it li_as since been now. The shortness of the period has 'made it more tlillicult for the party to fabricate evidence. because genuine evidence is more available to the other side and perjury and forgery can be more easily exposed than was the case formerly." ' 3,123. in "addition to the opinions above 'quoted, there were some sugges- tions regarding the drafting of the article. The Honorary Secretary, Bar Asso- ciation, Amroati', gave following suggestions:----

"Articles 118 and ll9._----The words 'merely' should be added after the word 'declaration' in both these articles." '

- 33.24. The other drafting suggestion was from Mr. V. A. Brodie, District Judge, Vizagapatnamf as follows :---- -

"It is better to make it clear that this article is applicable only to suits brought fofsuch declarations without consequential relief for the sake of perpetuation of testimony (vicle XVII, Allahabad 167. XIV Allahabad I56 and XIII Bombay 160). In both I would insert the words 'without consc- queritial relief' after the word 'declaration'. This would leave it free from doubt that.where conscqueiitial relief is sought, and the declaration only asked for 'as an ancillary relief. limitation is governed by the article appli- cable tothe main relief prayedfor." -

"33.2S._ A presumptive reversioneriwho seeks to challenge an adoption made by' a Hindu female has two courses open to him. Lln the first place. he can straightaway file a suite for declaration (governed by this article) without claim-

ing any consequential relief. because, as on the date of the suit, his right-is merely a spes successionis liable to be defeated' by subsequent events taking place till the succession opens upon the death of the Hindu woman. Or in the 'alternative, he may wait till the succession opens upon the death of the Hindu fe"inale and ﬁle a suit within twelve years from the opening of the succession.

Such was the view of the Privy Council3, which relied on illustration (f) to _ section 42 of the Speciﬁc Relief Act. 1877 as being 'indicative of the [act that the legislature intended a period of six years prescribed under article H8 of the Limitation Act, 1908 as a reasonable period beyond which a plaintiff seeking a , _ declaratory relief wouldbe deemed to be guilty of laclies.

'Letter No. 5/8-V. 4-5. dated 2lst March, l908. National Archives File 1908, Paper No. 25. page 2. ' 3I-cttcr No. 264. dated 3rd Fe-briiiiry 1008, National Archives File l'lt)S. Piiper No. 27, _ page' 9.

_ 3KU'.WHdt7.'1Pt_t V. C'l1anl)ri.<uppcI, A.I.R. 1924 RC.» 137.

89'rn REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, I963 14l » (Chapter 33----;Artic/es 56 to 58: Suits Relating'to Declarations.) 33.26. This case came up for. consideration before a. Full Bench of, the Privy Council Andhra Pradesh High Court' and Subba Rao Chief Justice, (as he was then) §';,s°A;%'l'f,l:°r°d had to write a separate concurring judgment to make the point that a presump- Pradesh High tive reversioner, in his representative capacity, can ﬁle a suit for a declaration C°""' that an alienation, either by the widow or by the alleged adopted son or even by a third party, is invalid and is not binding on the reversioner. Viswanatha .Sastri, J. stressed the fact that a failure to bring' a declaratory suit under article 118 of the Limitation Act, 1908 would not bar _the- plaintiff from ﬁling a regular ' title suit under article 141 of that Act (now article 65). The dissenting judge Umamaheswaram, J. was. however. emphatic that a _declaratory suit of the nature does not lie under section 42 of the Speciﬁc Relief Act. nor does any alie- nation elfeeted by a trespasser during the widows life-term afford a cause of 3 action to the rcversioncr.

33.27. The Bombay High 'Court? drew a distinction between (i) suit for Bombay view.

declaration simpliciter and (ii) a suit to recover possession after the death of (the Hindu widow and held that the question whether article I18 (now article 57) p or article I4] of the Limitation Act, I908 (now article 65) applied, depended upon ifwhether the plaintiﬂ was seeking. in substance, to escape the period of limitation by ignoring the--adoption and b;ising his right on some other act consequen- tial on the adoption. l i A - 33.28. In view of the dissenting opinion expressed in the Andhra Predesh Recommenda-

case,3 and the dichotomy introduced iii the judgment of the Bombay High "On Courti.' we are of thelview that the matter deserves to be cleared once and for allnbecause such suits generally involve claims to large properties. The necessity of clariﬁcation acquires an added edge when one appreciates that the illustration (f) to the old section 42 of Speciﬁc Relief Act, 1877 has now been omitted in the new section 34 of the Speciﬁc Relief Act. l9(>3.

' \ . 33.29. Consequently, we recomniend that article 57 should be revised as Reeominenda-I f9llows:---- A T ' '"'"'i V _ \ "57. To obtain a declaration that an Three When the alleged adoption becomes " alleged adoption is invalid. or years. known to the plaintill".

never, in fact, took place. where nofurther re lief is sought.

33.30. "This takes us to Article 58 which reads as under: Article 53-

"To obtain arty other declaration . Three Whrj.n the right I6 sue lirst accrues.

- - years. ' The corresponding articles 95. H9 and 129 of the Act of 1908 were as follows:--

' "93. To declare the forgery of an inst-- Three The date of the attempt. rument attempted to be enforced years.

against the plaintiff.

i ll9.To obtain a declaration that an Six 3 When_ the rights of the adopted adoption is valid. . years. .s"on,'as such are interfered with. l29._ By a Hindu for a declaration of Twelve When the right is denied."

his right to maintenance. - years. ' u 'N. Jmu'/cumma V. Mallurvdr/i. A.l.R. 1956 AP. 141. ' "Vi!/wbu Bhuuji v. Vi!/ml .Sakruu, A.l.R. 1958 Born. Z70. . M "N. , Janikamma v. Mattareddi, _A.1.R. 1956 A.P. 141. (supra).

\ 142 Law Commission Report.

Comment in 1871.

Applicability-

Suits for declaration.

with conse-

quential ' relief.

'Calcutta I view. ' ' the above observations have been interpreted the Calcutta High Court5 89m REPORT or LAW COMMN. or INDIA ON THE LIMITATION Aer. 1963 (Chapter 33- -}1rticles 56 _to 58: Suits Relating to Declarations.) Articles 93 , 128 and 129 of the Actof l87l were as"under:

"93. To declare the forgery of an ins-- Three' The date of the issue, registration or trument issued, or registered, or years. attempt. attempted to be enforced.

Twelve When the maintenance sued ll.-r is years. claimed and refused.

129. To establish or set aside an adop- Twelve The date of the adoption, or (at the tion. years. option of the plaintilf) the date of the deatltrof the 'adoptive father."

128. By a Hindu for maintenance.

33.31. The present article applies only to» suits for declaration simplicitcr and combines articles 93, I19 and 129 of the Act of 1908. The different periods of limitation in the earlier Act are, nowmade uniform (three years) in the Act. This amalgamation of articles follows the recommendation of the Law Com- mission.' 33.32. Some comments received at the time of drafting of the I877 Act have been discussed earlier", but one additional comment deserves notice. . One Mr. N. H. Thomson" expressed the following view on the subject matter of arti- cles 119 and 129 'of the Act of 1877 :---- (the gist whereof is now combined in article 58).

"No. 124.--Where no maintenance has been received 1 would make the period begin to run from the time when the right to maintenance accrued. Where the suit is for arrears, from the time they were payable.

"No. 125.----Therc seems to be a doubt. whether a suit to set aside an adoption will lie unless consequential relief be asked."

33.33. The doubts expressed by Mr. N. I-I..Thomson about the applica- bility of the article to suits for a declaration coupled with consequential relief persist even now; In a case which went upto the Supreme Court' (though not directly concerned with the implications -of this article) it was observed as under :--

"A suit for declaration with Li consequential relief for injunction, is not a suit for declaration simplicitcrz it is a suit for declaration with further relief. Whether the further relief claimed-in a particular case is conse- quential upon a declaration is adequate must always depend upon the facts and circumstances of each case.,' ........ .. A suit for a declaration of a right and an injunction restraining the defendants. from interfering with the exer- cise ofthat right is governed by article 120 of the'Limitation Act and in such a 'suit the right.to sue arises when the cause of action accrues."

33.34. Though the Supreme Court did not refer pointedly to article 58, to mean that a suit for declaration of title and for permanent injunction restraining the defendants from interfering with possession is governed_by article 58, when the properties are not trust properties and the plaintiffs are not in possession. However,'the Orissa High C/0llI'_t"' has held that article 58 will apply only to a 'Law Commission of India, 3rd Report (Limitation Act 1908). page 53. 5'See discussion of articles 56 and 57. supra.

3Letter in National Archives File 1877, Paper No. 2, page 3.

'Mohd. Ymms V. S_\'('dIlIlIli.V.Yll. A.l.R. 1961 S.C. 308 810.' 'RudIiu Gohimla v. Kcwulu Devi. A.l.R. 1974 Cal: 83.

"Gaurungu V. Bliagu Sn/iu, A.l.R. 1976 Orissa 43. I:

89in REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT. 1963 \ ' 143i (C/1(1pI'€t' 33-; Ai'Ii'rfcns' 5640 58: Suits Relating to Declarations.) . (Chapter 34----AI-tI'r.lcs 59 in 60: Suits Rclmiiig to D€{'l'('('S and Instriimcins.) suit for declaration siinpliciter and will have no application to a suit seeking a .declaration that the plai'ntiﬁ's adoption, in fact, took place and claiming parti-

HOD.

33.35. The tenor of the passage from the judgment) of the Supreme 'Court [recommenda-

quoted above' shows that the court regards this article to be applicable only to "03- a suit for declaration simpliciter. We recommend that the matter should be put , beyond doubt by revising article 58 as follows :---- . .

. 5 "To obtain any other declaration Three When the right to sue first accrues.' without see/ring further it'/ief years.

CHAPTER' 34 ARTICLES 59-60: SUITS RELATING "H? BECREES AND . INSTRUMENTS: ' i 34.1. Article 59 reads as under :-- Arm!' 59-

"To cancel or set aside an instru- Three When the facts entitling the plain-' ment or decree or for the rescis- years. tiff to have the instrument 0?

, sion of a contract. decree cancelled or set aside or 1 the contract rescinded first be-

E come known to him."

It combines the substance of articles 91 and 114 of the Act of 1908, which .were as follows:-- I "9l . To cancel or set aside an instru- Three _ When the facts entitling the plain- ment not otherwise provided for. years. tiff to have the instrument cancel- ledor set aside become known to I him)!' "1l4. For the rescission of a contract. Three When the facts entitling the plain- years. tiﬂ' to have the contract rescinded ﬁrst become known to him".

- Articles 91 and N4 of the Act of 1877 were in the same terms.' Articles 92 and 114 of the Act of 1871 'were 'as under:--

"92. To cancel or set aside an instru- Three 5 When the instrument is executed. ment not otherwise provided for. years. ' 1~l4. For the rescission of a contract. Three 5When the contract is executed by : years; 'thp.plaintitl"'.

' Acting on the recommendation of the Law Commission', articles 91 and I14 of;-the Act of 1908 were combined into 3. single article 59 in the Act of 1963. and the scope of the article was also enlarged so as to make it applicable to the can- cellation to decrees as well.

_ 34.2. The expression "set aside" in the article under discussion was adver- The exptgisiﬁn sely commented on by a District Judge", in 1907. _He suggested that the words 5°' as'd° 5 "or to declare the inoperative character of " should be added after the words "set aside". ' 2 '

-_1Mol1d. YllIll_lS _v. S_\'('dllIlll'l".$'S(I, A.l.R. 1961 SC. 808' supra. , fLa_w Commission of India, 3rd Report (Limitation Act, 1908). page 53, para 139. 'Diwan Bahadur S. Gopalachariar Avergal, District !udge,:Guntur, 'Letter No. 2/55, dated 30th December, 1907, National Archives File :_1>908:,- paper No. ll, page 10.

. &i_,:.V 144 89rH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT. 1963 A ' .

(C/111/tier 34------ /irticI(=s 59 In 60: Suits Ru/nring I0' Dt'('i-mic mm' Insrrzlrnmrr.) It may be recalled' that the expression "set aside" was also adversely com- mented upon by the Privy Council in the context of adoption9:----

, * "It must be confessed that the wordsof the airticle are not such as to prevent ' doubt orldilﬁculty in its construction.' The expression "suit to set aside an adoption" is not quite precise as applied to any suit. An adoption may be I _ established. but can hardly be set aside,' though an alleged or pretended adoption may be declared to be no adoption at all."

A 'And further: .

"It 'thus appears that the expression "set aside an adoption" is and has been for many years applied in the ordinarflanguage of Indian lawyers to proceedings which bring the validity of an alleged adoption under question. and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature". ' No change

34.3. However, article 59 deals not with adoption as such but with setting needed. . . . . .

aside instruments and decrees, and so does the next following article 60, dealing with the transfer of property. Consequently, though the wording "setting aside an adoption" may be unhappy, there appears' to be no reason why the expression cannot be used in article 59 as well as article 60. Hence, no change is needed in the article.

Article .60. 34.4. Article 60 reads as under :--

"60. To set aside a transfer of property made by the guardian of a warda .

(a) by the ward who has attained Three When the ward attains majority.

majority; - years. ' -

' (b) by the ward's legal represen-

' tative-~------

(i) When the ward dies with- Three When _the ward attains majority. in three years from the years.

date of attaining ma-

jbrity.

(ii) When the ward dies Three When the ward dies." before attaining majority. years.

Article 44 of the Act of 1908 read as under:

"44. By a ward who has attained ma- Three . Wl1en_th_e ward attains majonity. jority to set aside a transfer of years. ' property by his guardian. _ » Article 44 of the Act of 1877 was as follows:

"44. By ward who has attained majo- Three When the ward attains majority. \ rity, to set aside a sale ofltis guar- years. dian. . A j The Act of 1871 had no corresponding Article. ' ' De );a_cro ' 34.5. The courts are sharply divided as to. whether the word "guardian"

guar lﬂﬂ.

_ ' occuring in this article, includes a "de facto" guardian. The Madras High Court." the Punjab High Court', and the Jammu and Kasliniir High ('ourtsff 'See discussion as to article 57, supra. ' -

3Cliaodhram V. Dakhina M0/um Roy Chaodhri, (1886) I.L.R. 13 Cal. 308, 320. 3 ta) Ramaclrandr-an v. Rumkangadan, A.I.R. 1975 Madras 60.

(b) Sivanntalai Gomidan v_. Amncha/a Ga ndan, A.I.R.'l938 Madras 822. 'Pmn Natl: V. Bal Kixhan, A.l.R. 1959 Punja 313 ' ' 'L01; N111]: V. Rah/u Rum. A.l.R. 1051 .l&K 25. _/ /L 89TH REPORT or LAw COMMN. or INDIA on ma LIMITATION ACT, 1963 .145 (Chajzter 34----zlrticles 59-60: Suits relating to Decrees and instruments.) (Chapter 35--Articles 6 I to 67: Suits relating to immovable property.) _ '\ éhave held that an article takes care of "de facto guardian". On the otherhand, the Patna High Court' has held that another article (article 144 of the Act of 1908') would apply to a suit to set aside an alienation made by the de facto guardian of a Hindu minor. » A ' 34.6. We. should mention in this context that the Law Commission.' in its Recorcgneodnﬁon Report on the Guardians and Wards Act, 1890, has recommended the addition. ::dt%V,,¢u:ﬁ".'. in section 4(2) of that Act, of a suitable Explanation which would make it clear reiterated.» that a de facto guardian is included within the deﬁnition of 'guardian' for the purposes of that Act. We are of the view that if this recommendation is accept- ed, the controversy 'should not survive in relation to. the law of Limitation also.

. ' we reiterate the reconInIendation made with reference to the Guardians and . Wards Act,' 1890.

CHAPTER 35 1 ARTICLES 61 T0 67: SUITS RELATING TO IMMOVABLE PROPERTY ' \.

'35.l. Article 61 reads as under 2 / ' ' A"i¢1= '51'-"' "6l..By a mortgagor----

(a) to redeem or recover posses- Thirty When the right to redeem or to sion of immovable property years. recover possession accrues. mortgaged; ' -

"(b) to recover possession of im- Twelve When the transfer becomes. known ' movable property mortgaged years. to the plaintiff.

and afterwards transljerred / by the mortgagee for a valu-

able consideration;

(c) to recover surplus collections Ihree When the mortgagor re-enters received by the mortgagee years. on the mortgaged property".' " after the mortgage has been ' satisﬁed.

This article replaced articles 105 , 134 and 148 the Act of 1908; which » piwere as follows: ' ' W ' \'148.~ Against a mortgagee to redeem Sixty When the right to redeem or to' I orto recover possession of immo- years. recover possession accrues; p1'o- '

- vable property mortgaged. . vided that all~claims to redeem . arising under instruments of mort-I / < . gage of immovable property.situa-

' te in 'Lower Burma which had ' ' ' been executed before the ﬁrst day t. of May, 1863, 'shall be governed ' ' ' by the rules of limitation in force in that State immediately before' the same day.

"I34. To recover possession of immo- Twelve When the transfer becomes known lvable property conveyed or be- years. to the plaintiff. - queathed in trust or mortgaged ._ ~ _ .

and afterwards transferred by the trustee or mortgagee for a valu- A able consideration.

'Kaﬂash Chand_ra Pradhan v. Rajdni Kama, A11}. 1945 Patna 298. 3c.f. Present article 65. _ , ,« 4 . . ' _ ~ , -

3Law Commission of India, 83rd Report (Guardians and Wards Act, 1390), I-lmgrapn 4.13. ~ . » To becarried out with reference to the Gnrardiantgand Wards Act; 1890.' f:29.~é»i4iit~ér1.1s:écA,tN1JiIs3 "

I 7-x 8911! REPORT or LAw COMMN. or INDIA ON THE LIMITATION ACT, 1963) \ (Chapter 35~Articles 61 to 67: Suits relating to immovable property.)

105. Bya mortgagor after the mortgage Three. / When the mortgagor re-enters on has been satisﬁed, to recover sur- years. the mortgaged property." plus, colle'ctions received by the mortgagee.

The corresponding provisions in the Act of 1877 were articles 148 , 134 and 105, respectively. 1 ~~ 35.2. The Law Commissio? recommendedlin its Report on the Act of 1908 that the period of limitation o 60 years allowed for the redemption of a mort- gige in article 148 of the Act of 1908 should' be cut down to 12 years. on the ' analogy of the practice available in England. As regards article 105, the Com'-

mission recommended the retention of the period, and, as regards article 134, "the Commission recommended that it should be split up in so far as it related to mortgages. However, all these articles were clpbbed into one article and enac- ted as article 61 in the Act of 1963, "with the reduction of the period of limitation ' for redemption from 60 years to 30 years only.

35.3. The Bombay High Court has held" that a suit by a puisne mortgagee who had not been impleaded by a prior mortgagee and who sought to enforce his mortgage rightragainst his mortgagor was governed not by article 132 of the Act of 1908 (now article 62) but by article 148. The Calcutta High Court has held' that Where a prior mortgagee obtained a decree on his mortgage without impleading a puisne mortgagee, purchased the property in execution and entered ' into possession, a suit by the puisne mortgagee (who also purchased the property under his decree without impleading the mortgagee)_'for redemption and posses- sion against the prior mortgage was governedwby -article 132 of the Act of 1908 (now article 62) and not by article 148 (now article '61). A puisne mortgagee is an assignee of the equity of redemption and is, tlierefore, entitled to redeem a prior mortgage in accordance with the provisions of sections 91 and 94 of the Transfer of Property Act which -incorporate the familiar rule 'redeem up, fore- close down'. The distinction seems to be this. A suit to redeem' is governed by article 61. A suit to enforce paymentifalls within article 62.

35.4. The Madras High Court hasheld' byiinaiority that article 134 of the Act. pf 1908 (now article 61) did not apply»to a transfer from a trustee or (mort-

"'15vhéi'e possession was not taken by ithetrirnsfeiee. Wallis, C.J. and Courts Tmtter, JJ, however, dissented from the aforesaid (inajority) view and held that ' the article 134 applied to a transfer froma trustee or mortgagee under which possession was not taken by the transferee. Walﬁs. CJ. further observed that it not be held that the intention of the Leﬁslature in enacting article 134 W35 tomake 'a provision in favour of the cestuti quetrust or mortgagor and give a furthergperiod than he would otherwise have had. On the contrary, the, intention was clearly restrictive. The Indian' Legislature must have been perfectly well aware that in the case of sales and mortgages -alike, possession was rarely given on the date of transfer and if the legislature had intended the date of tanks ,ing possession under the sale or mortgage to be the starting point, nothing woulg have been easier to say so.. It had i1ot'done'*so, and it was not open to the judiciary to effect this by taking out of 'thearticle nearly all the cases which

- would therefore fall within it.

'Law Commission of India, 3rd Report imitation Act, 1908), paras 48-49, 129-130. 'Nagu Tukaram v. Gnpal Ganesh, A.I.R, 1 323cm. 3105. e' . ' l,:)I&iIl;tl1iI¢£haI;vs__ Jo_vKGopaI, zklll. 19I%6 Ca-l'.'h5&). * \ u a itri em' utti V. . M. . Ku ' 'Par ' AIR. 1919 M d. 972; I.L.R. 40 Mad. I040; I054 (1=.a.). '; . am' a ' nnronr or LAW COMMN. or INDIA ON TI-IE: Lx1ui1rArioN Aer, 1963 _ (Chapter 35----ArticleIs 61 to 67: Suits relating to immovable property.) However, it should be stated that most other Courts have taken that -- view that article 134 (now article 61) does not apply where possession is not transferred.'-2 The Madras High Court has, in a later case," held that for /the application of article 61,' it was not the intention or belief of the mortgagee who .- uansferred the property» that mattered, but the fact that. though he was a mort-p gagee, he, in fact, purported to transfer absolutely to a third party the property covered by the mortgage in his favour. The fact of his belief that he was trans-

-terrhig some other property could not make any difference, so long as it was ultimately found that the property transferred by the mortgagee was the pro- perty which was the subject of the mortgage. - .

35.5. In the post-1963 period article 61 has not given rise to any serious No change controversy, and hence needs no amendment. » "°°d°d' T 35.6. Article 62 reads as under :-- Article _s2} M "62. To enforce payment of money Twelve When the money sued for becomes . secured by a mortgage or other- years. due".

. _ wise charged upon immovable property.

. Article 132 of the Act of 1908 was as under:----

"l32. To enforce payment of money Twelve When themoney sued for becomes charged uponimmovable property. years. due.

,. E.xplam-tion:----For the purposes of this article/-

(a) the allovvance and fees respectively called malikhana and haqqs, and

- _(b) the value of any agricultural or other produce the right to receive which is secured by a charge upon immovable property, and

(c) advances secured by mortgage by deposit ottitle, deeds shall be deemed to be money charged upon immovable property."

Article 132 of the Act of 187'/"was as under: ' 'F132. To. enforce payment of money T vxelve What the money sued for becomes charged upon immovable property. years. due."

Explonation.----The allowance and fees respectively called malikhana and haqqsshall, forthe purpose of this clause, be deemed to be money charged upon immovable property." _ ' ' . ' "Article 132 of the.wAct of 1871 was in identical terms. 1. 35.7. Article 132 of the Limitation Acts of 1871, 18:77tand 1908 provided L_aw Commis-

ﬂh .f1)r_.gx_sf'orci;.jg'_payment of money charged upon intmosgable gproperty. Though '°"°" R°p°"' the "article did not speciﬁcally refer to mortgages, the.P'r_ivyI Council held' that a.-sp_it=,'o_n ;a simple mortgage bond to enforce payrnentrgygtsgvgoverned by article

132.,In the Report on the Act of 1908, the Law? Cogigion recommended' amendment of the article to extend it speciﬁcally to Thc Commjg. recommended deletion of clause (c) of the Explanation to the article.

i élnuthe. present Act, not merely clause (c) of the Explanation. but the entire Explanatiomhas been omitted. » ~.

.. -EN Hoit'.Abdur Rehim, (1920) I.L.R. 47 Cal. $866,, goo.

<1 ' 'v. Sushila, A.I.R. l947,.Cal. 461, '-

"D.Imna1ukshmi Animal v. G. Amhurai, A.I.R. 1972 Mad. 186,

- '1'l'I€E.1¥_lanation. does not appear in the present Act. _ . 'Vas'udeva Mugialiar -v. S_rinivasw Pillai (190?) I_LR 30 Mad;.4&6(I!C).

'Law Cohnnission of India; 31-d Report fhnntatron Aet,§l9(B;.§;agq-48 para 128.

_' ~ wrap . , .« ' '.§:VZ'. 3 l-1'43 Nochange Article', 161. ' ' Law Connois-

sion's Report.

89TH REPORT or LAW COMMN. or INDIA on me 1.'1M1rArroN ACT,_ 1963 (Chapter 35~--Articles 61 to 67: Suits relating to immovable property.) 35.8. Controversies may, in practice, arise as to the applicability of article to a particular case. where the exact nature of -the bond may be 111 issue, but these do not necessitate any amendment of the article.

V, 35.9. Article 63 reads as under ;--

"63. By a mortgagee :

(a) for foreclosure.

years. mortgage becomes due.

(b) for possession of immovable property mortgag/ed.

The corresponding provisions in the Act of 1908 were articles 135 , 146 and 147, which read as under:----- ' "_l35. Suit instituted in a Court not es-

tablished by Royal Charter by a mortgagee for possession of im-

movable property mortgaged.

Twelve: When the mortgagee becomes entit-

years. led to possession." ' Twelve When the mortgagor's right to years. possession determines."

146. Before a Court established by Thirty When any part of the principal or ' Royal Charter in the exercise of years.

its ordinary original civil jurisdic-

tion/by a mortgagee to recover from the mortgagor the possession of immovable property mortgaged.

interest was last paid on account o _ of the mortgage debt.

147. By a mortgagee for foreclosure or Sixty sale. years.

When the money secured by_ the mortgage becomes due."

In the Act of 1877, articles 135 , 146 and 147 were in' identical terms.

In the Act of 1871, Articles 135 and 139 contained the law on the topic in these terms: N ' 'I35: Suitinstituted in a Court not es-

tablished by Royal Charter by mortgage" ior possession of im-

movable property mortgaged.

139l Like suit when the purchaser had _Twelve The date of the dispossession." possession, but afterwards dis- years. .

possessed. / years. to possession.

35.10. The Law Commission, -in its Report on the Act of 1908, observed as under on the corresponding article of the Act of i908' :

"125. Before the decision of _the Pirvy (Council in Vasudeva v. Srinivas'a' the view was taken that a suit by a mortgagee for sale of the property was governed by article 147 which gives a period of 60 years for foreclosure or sale. This view is no longer tenable 'm' View of the decision ofthe Privy Council, where it was pointed out that article 147 applied only to an Eng"-i lish mortgage under which the mortgagee has the alternative of either bring- apsuit for foreclosure or for sale andrpthat 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 be- comes due. Under the existing law, the English mortggee has no right 'Law Commission of /India, 3rd Report (Limitation Act, 1908) pages 47-48. vaI'a»125-

127. . « 'Vasudevmy. Srinivasa, (1907) I.L.R. Made 433, 434. (PC).

as Thirty When the money secured by 'ht? _ Twelve When the mortgagee is ﬁrst entitled _ ' 89m nepopcr or LAW comm. or mom or me LIMITATION ACT, 1963 _ (Chapter 735----Articles 61 to 67: Suits relating to immovable property.) 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-."

"l26. In_the Limitation Act there are two articles. 135 and 146 which provide a period of limitation for recovery of possession by a mortgagee. If the suit is instituted in a court not established, by Royal Chartergthe period is 12 years (Art. 135) and if the suit is instituted in a court establi- shed by a Royal Charter the period: is. 30 years (Art. 146). In the former case, time begins to run when the mortgagor's right to possession determines while, in the latter, time begins to run when the "principal or interest was last paid on account of the mortgage debt. It seems to be unnecessary to maintain this distinction, even assuming that under the_present law the English mortgagee is entitled to recover possession of the property. The usufructuary'mortgagee is undoubtedly entitled to recover possession of the property, either from the date of mortgage if possession is not delivered or, subsequc_ntly, if having been put in possession. his possession is disturb- ed. It would be suﬂicient, therefore, to provide only one article for a suit by a mortgagee for possession 'of immovable property mortgaged to »him.

. A period of 12 years may be allowed. Time should run from the date when his right to possession accrues."

"p127. As, under an English mortgage, there is no right of foreclosure or sale in the alternative, article 147 which in view of the Privy Council deci-

' sioni applies only to such mortgages, should be deleted. It is, however, necessary to make _a fresh provision for a suit for foreclosure. A period of, 12 years for such a suit may be provided, counting limitation from the date 'when 'the money secured by the mortgage' becomes due, as in the ease of a ' ' suit "for sale." -

The legislature has, however, inserted a period of thirty years, in confor- mity with the period prescribed in the new Act for suits for redemption of mort- eases-. ' ' * 35.11. After the passing of the Act of 1963, no eontroversyhas arisen justi- No change tying a change in the.Act. r "°°d°d-

. .

.-

3512, This takes us to article 64, which reads as under :---

"64. For possession of immovable pro-

perty based. on previous posses-

sion and not on title, when the plaintiﬂ' while in possession of the property has been dispossessed.

Article 64 Twelve The date of dispossession."

years.

I "r 4 Article 142 of the Act of 1908 was as under: 7 Twelve The date of dispossession or dis-

years. contiri'uanee."

"I42. For possession of immovable property when the plaintiﬁ', while . in possession of the property, has . been dispossessed or has discon-

tinued the possession.

_ This was identical with article 142 of the Act of 1877 and article 143 of thesct of 1371. i' . --

A49.

130' , 89TH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 (Chapter 35---ArticIes 61 to 67: Suits relating to immovable property.) The present article adds the words 'based on previous possession and not , on title". The change, to some extent, follows the scheme suggested by the Law Commission in its Report2 on the Act of 1908.

'This article needs no change. .' ' Article 35.13. Article 65 reads as under :--

on "65. For possession of immovable Twelve When the possession of the defen- , property or any interest therein years: daut becomes adverse to the plain- .

based on title. tiff. -

Explan_aliorr.----For the purposes of -this al'ticle-

(a) where the suit is by a remainderman. a revisioner (other than a land- lord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the rernainderman. revisioner ' or devisee, as the case may he, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of T immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a decree when the/judgment-debtor was out of possession at the date of the sale", the purchaser shall be deemed to be a representative of the judgment-deb-v tor who was out of possession."

This article has replaced article 144 of the Act of 1908, which was as under-:---- . ' "144. For possession of immovable Twelve When the possession of the defen- property or any interest therein years. dant becomes adverse to the plain- not hereby otherwise specially T tiﬁ'.''w ' provided for. ' This was identical with article 144 of the Act of/1877; Article 145 of the Act of 1871 was as under: T "I45. For possession of immovable Twelve When the possession of the defen- property or any interest therein years. dant,' or of some person through not hereby otherwise specially whom he claims, became adverse provided for. to the plaintiff." -

The wmon' _ 35.14. The doctrine of acquision of title by adverse possession is deeply _of the' illccal rooted in our system of jurisprudence. The doctrine is derived from the Roman ucwpmyt Law concept of usucapio and longi tetnporisiliraescriptio, but in Roman~Law, there was an added requirement that the possession must be bona 'ride and for "justa'causa". English law has not insisted on the requirement of justa causa.

The UK. Law Reform Committee?' has defended the doctrine by observing that' "certainty of title to land is a social need and occupation of land which haslong 'been unchallenged should not be disturbed." Thus, the English version is just the opposite of the Roman concept. a \ . 'See para 3S._l7, infra. _ , _ _ _ ' . 'Law Commission of _Ind1a, 3rd Report ([.1nntatmn;z_&¢t). D3368 49-52. ' 'Law Reform Committee, 14th Report (on aeqnﬁmoh of easements and proﬁts by' prescription), emnd. 3100, page 12, para 36. _--

-, , , ' *f§(icl_iael I, n, "Adverse Possession--Morality and 89TH REPORT or LAW COMMN. or INDIA oN-- E 'LIMITATION ACT, 1963 (Chapter 35--Articles 61 to_ 67: Suits relating to immovable property)

-In the registration systems of certain Commonwealth countries, a distinc- tion is, made between the acquisition of title_by an adverse possession to regis- tered land and unregistered land, with the result that a rank trespasser or a squatter is notable to extinguish the title of a registered proprietor.'-3 35151 This,ihowever, is not the position in England. A person with evil _' ntions can usurp somebody else's land, even after forcibly evicting him, and still perfect his title by adverse possession. On the other hand. if he enters into possession in a __bona ﬁde manner and with "justa causa", he would not be able to perfect his "title. When the inequity of the position resulting from the interpretation ofthe word "adverse" was argued in England. before Harman If'.

(is he then was), he had interjected as under:

"You are worse off when you enter lawfully"

To this, the reply from the Bar was~"Yes, often; the case is by no means as startling as it sounds, because one has a comparable situation in detinue."

35.16. In view of the possibility of unjust results ﬂowing from the applica- tion of this doctrine, one writer' poses two questions:

(I) Has "squatter's title" to land, with its undertones of "land-stealing", any place in a civilised society, particularly a society committed ultimately to univer-

sal state registration of title to land? (2) If, "squatter's tit " can still perform a useful, indeed a necessary, function, ought it to require that the "squatter" sheitgid have a particular intention or motive before allowing him to acquire title? --However, after an exhaustive discussion of ,_;the merits, the same writer proposes the following answers to the questions so posed: ' (1). Acquisition of title by adverse possession is. not immoral and can have f inﬂuence on the social policy that security should be given to the long 1 e possessor of''1and.

' {2)The motive, intention or belief of the allegedly adverse possessor is im-

T material. The deliberate evicter and the mistaken encrotcher should both be able to acquire title. Long-continued possession should ipso facto confer title. unless it is proved that that possession began and continued tinder a valid tran- with the true owner, i.e. that the possession was purely derivative. ad-

' possession. But if the defendant trespusser is a person who wishes to oust 'tile plaiiitiif who was himself a prior trespasser or a person who did not come iiito possession as a trespasser but continued to hold it as such, in order to enable "the plaintiff to continue his wrongful possession without disturbance. law must undoubtedly step in and give relief to, the plaintiff. As against the lilac owner, a. p'erso_n who is in possession for a length -of time short of the stattitory period is not entitled to any protection; but the net result of the deci- sions-under article 142 is that the true owner must prove that he had a subsist- itigtitle on the date of suit. g i We therefore suggest that in order to avoid injustice and inequity to the owner and to simplify the law, article 142 should be restricted to suits based ptissessory title and the owner of the property should not lose his right to it the. defendant in possession is able to establish adverse possession."

'Michael 'J. "Goodman," Adverse Possession, Morality and Motive (1910) 33 Modern Law Review 281, 282. - ' "CE. I. S Williams, "Title by Limitation in a registered conveyancing system" (1968) 6A! " Law Rev. 69. I _ .

y " yes v. Mees, (1957) 1 Ch. 475, 481 : (1957) 2 All ER. 571,- See Michael Goodman. '--'AIvérs'e *Pas's:ssion----Morality and Motive" (1970) 33 Modern 'I':|.W Rev. 281. 285, 286 and in. 35. -

, _ active'? (I970) 33 Modern , _ {I81 (Q ' ' us) 288, (Answers). A =3; .33; ; _ . , Argument of .15.}.

152 ' Law Com-

missions 89TH REPORT or LAW COMMN. or mom ON "rm: LIMITATION ACT, 1963 (Chapter 35--Ar!icle.s' 61_ to 67: Suits Relating to Immovable Property.) 35.17. Reverting. to the text of article 65, the articles relating to possession were examined in great detail by the Law'Commission' in its Report on the Act of 1908. There was .a preliminary observation that articles 142 and 144 had introduced a good deal of confusion in the law relating to suit for posses- sion 'by the owners of property. The law, Commission also discussed the Privy Council case? on the subject, which had settled the proposition that the rule of prescription should be applied not to cases of want of actual possession by the' plaintiﬁ, but to cases where the plaintiﬁ had been out of possession and another person was in possession for the- prescribed time. The Commission then made the following recommendation on the subject:

"In our opinion, article 142 must be restricted in its application only to suits based on possessory title. The plaintiif in such a suit seeks protections _ of his previous possession which falls short of the statutory period of pres- cription, to recover possession from another trespasser. The plaintiff':

' prior possession no doubt entitles him to protection against a trespasser. L though not against the true owner. The true owner's entry. would be a' rightful entry and would interrupt.

35.18. For these reasons, the Law Commission (in that Report) recom-

mended a re-draft of article 142 as under:-- L "For possession of immovable property based on possessory title where the plaintiif while in possession of the property has been disposses- sed-----l2 years from the date of dispossession."

A new article was to govern suits" based on title----the 12 years period to be counted from the time when possession becomes adverse. -

4 35.19. The amended article, though' phrased somewhat differently has not given rise to any serious controversy and the Supreme Court. in a recent judg- ment on the subject, has succintly summarised the law on adverse possession 'or hostile title thus? ' T ' "Adverse possession or hostile title" must be established by' a consistent course of conduct and it cannot be shown by a stray or sporadic act possession. However, all that the law requires is that the possession must be open and without any attempt at concealment.

of the owner. Such a requirement may» he insisted on, where an ouster of title is pleaded but that is not the case here. One of the important facts.

which clearly proves adverse possession, may be that the possessor had let ~ out the land for cultivatory purposes and used it himself from time to time without any protest from the owner or any serious attempt by the owner to evict the possessor. knowing. full well that he was asserting hostile title in respect of the land. If a person asserts a hostile title even to a tank which, as claimed in they present case by the owner, i.e. the municipality, belonged to it and despite' the hostile assertion of title no steps were taken by the owner, to evict the trespasser, his title by prescription" would be complete-after thirty years." 7 F 131 to I36. - .

'- 'Agency Company v. Short (1888) 13 A.'C. 793 CP.C.). l'Ka_.s-hitish Chandra Bose V. Commijgbnerjof Iiglnchi (1981) 2 S.C.Q. 103.

It is not necessary that the possession must be so effective so as to bring it to the speciﬁc knowledge 'Law Corrimission of India, 3rd' Report'(Liri1itat:'on Act. 1908), pages 49 to 52. 1 1 (Chapter 35--/-Articles» 61 to 67 : Suits Relating Immovable Property) 35.20. \In England, certain developments in the theory of adverse possession -Dedclopngems have taken place as regards proiccting_the real owner of the land (who has. reserved the same for development or some speciﬁc' purpose in mind. to be exe-

' ' cuted at a future date). In Wal1is's case', Lord Denning M.R. observed as i ' underrz r "Possession by itself is not enough to give a title. It must be adverse - * possession. The true owner must have been 'dispossessed and another must' a have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor."

_ 35.21. The Law Reform Committee3 in England (after some discussion)' 'concluded as under, on the subject: ' p-- ' views of_ "There has now apparently been established a quite: general doctrine" of an implied licence from the true owner to the would-be adverse possessor permitting him to commit the acts of possession upon which he seeks to rely, without any speciﬁc or factual basis fo" such an implication. The effect of implying such a licence is to prevent ,time runningir; favour of the adverse possessor, since time 'does not run in favour of the licensee. If this doctrine extends as far as it appears to have been extended (by, Gray v. Wylcoham- Martine). It amounts. in effect, to a judicial repeal of the statute. The philo- sophy behind this approach has been expressed by Lord Denning M.R., as follows; - ' A "'I'he'reason behind the doctrine is because it 'does' not lie in that other person's mouth to assert that he used the land of his' own wrong as a trespasser. . Rather,' his user is to be ascribed to the licence or permission of the true owner."

'We, however, prefer the more traditional approach recently restated by c \' Sir John Ponnycuick, delivering the judgment of the Court of Appeal in Treloar v. Nate' in which he said: T i J ''........:...If a squatter takes possession of landbelonging to another and ,/ remains in' possession for twelve years to the exclusion of the. owner, that repre-

A sents adverse possession and accordinglyat the'end_oit twelve years the title "of the owner is extinguished. That is the plain meaning? of the statutory provi- sions .......... ..". » «. ~ ii » 35.22. The'Law Reform Committee further considered it clear that the two \ approaches could not be reconciled. It concludedas under:

"We consider that the law should be restored to the law as stated'in Trelocn: v. Nutc.°' There can,~in' our view. b'e no,iustiﬁ:<;ati¢'_an fq implying a licence, or V other similar position. in any case where there is no éictual basis for such an implication. The precise formula for such a. restoration is not easy, since the present law is that if the land is in the possession of some person in whose favour the period of limitation can run, then' such' possession is 'adverse' (Limitation Act 1939. s':l0(l) and this appears to be ;quite plain. We do not .. 3

-p 'WaIli.s's Cajitrin Ba)' Holiday Camp Ltd. v. Shell Mexifand B.P. Ltd. (1975) QB.' 94, r 103, ' , 'Seek for further discussion. ( W80) Current Law Part 5. page 241. \ "Law Reform Committee Report. (September 1977) C '£6925, Para 3.50 to 3.12.

-ffréloar V. Nute. (l977), All. E.R..(230); (1976) l 1295 C.C.A *TreIaar v. Nut: (1977) 1 All ER. 230.

:e!:ée.<wNDI83 l 89TH REPORT-OF LAW comm. or mom ON rue LJMITATION ACT, 1963 A , 15$ l54~

-Amendment .

/ Act'. l980(UK). _ « r .

/ needed. 'i._, . ' 1m 1 ;

cle 66.1' 89TH REPORT or LAW COMMN. or men on THE LIMITATION ACT, 1963 (Chapter 35--~-Artfc/es 61 to 67: Suits.Relating I0 immovable Property) considerthat the suggestion of the lnstitute~--that there would be a presump- tion that possession is adversewwould really add anything to this existing' provision. Accordingly, we think that it may be necessary for amending legislation expressly to provide thattfor the purposes'of the Limitation Act "possession" is to bear itsordinarymeaning, in law, so that it is not to be artiﬁcially stripped of its character of being adverse by the application of any implication or presumption not grounded upon the actual [circumstances of_'the case"; ' 35.23._As a result of the recommendations of the Law Reforms Committee, the Limitation Amendment Act 1980 was pasisedtin England. The following sub- section has -been added as sub-section (4) ofsection 10 of the Limitation Act . 1939, by the Amendment Act of 1980. 1 "(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land, it shall not be assumed by implication of law that this occupation is by permission-. of the person entitled tothe land merely by virtue of the fact 'that his; {eccupation is not 'inconsistent with ' the latter's present or future enjoyment of the land.

This provision shall not be taken as prejudicing a ﬁnding to the effect that a person's occupation of any langl is: by ingplied permission of the person entitled to the land in any case where-such ﬁnding is justiﬁed on the actual/ facts of the case." ' 1 The Commentator of the Current Law Sfatutes§Annotated' has observed (with '_ reference to this provision) that this amendment' is; "another round in the Legis- _ lature v. Lord Denning saga".

35.24. We have made a passing refeajencehto the fact that like many other well established legal doctrines, the doctrine of adverse possession has also attracted '- the adverse notice of some jurists. Ho\yever:,:as ':§,St3tCd above, the philosophyi underlying the same has become an int,egrai1IParft of. our jurisprudence. Both on the merits and on the ground just no?»v mentioned, the doctrine deserves not to be disturbed in its essence. . . : _ 3 We have also referred to the developrhentg lifngland as a matter of interest.

_In 'India, these controversies have not a§'iseu*' Asfcordingly, we 'do, not recom-

l' mend change in the article.

35.25. This takes us to article 66, whid; asgunder :_ "66. For possession of immovable pro- Twdveeggwhejl the forfeiture is incurred or '. perty when.the plaintiﬁ' has be- A. years. -"§the"5;ondition is broken." come entitled to possession by -1 ' reason of any forfeiture or breach , ' ?

of condition- ' 3' ' ,.

Article 143 of the Acts of 1908 and_ﬁ187i§:§vae as under:----

~ "I43. L1ke suit, when the plaintiff has Twdve _ the forfeiture is incurred or-

' becomeentitled by reason of any yeah. *1; itlaeéondition is broken."

- forfeiture or breach of condition. . . ~ In the Act of 1871, article 144 was in identical terms.

10980) Part 5 Current Law page 24/4; ' 891:3 REPORT or LAW cozmvm. or INDIA on The LIMITATION ACT,- 1963 -95 « (Chapter 35~-Artilc/es 61 to 67: Suits Relatiten to Jmmo vizble Property) _ 35.26. Many of the judicial decisions usually discussed under this article. Caseglsw' : ' involve matters of substantive law and we need not pause to discuss them. It is enough to mention one important aspect which Wasin issue in a Madras case.' Defedants in that case were in possession of a land on-tenancy basis by virtue of a deed executed in l§36. In 1871, the defendants'. setup a right of permanent . tenancy. In 1894, the plaintilf gave notice to the defendants to give up possession of the lands and ﬁled a suit for eviction.» The defendants contended that the 'suit was barred by limitation. The High Court held that the suit was not , barred by limitation and that the tenant repudiatinge the title of land became ' liable for immediate eviction at the option of-'the landlord, but until the landlord , indicated that he intended to exercise- the option, the tenancy subsisted from year to year and article 139 of the' Limitation Act of 1908' (present article 67) applied. But the same High'Court, in a later case," held that the landlord had got a right » 'to recover possession the moment the forfeiture incurred, and no overt act I (i.e. no act or intimation of an election to avoid the lease) was necessary before bringing an action for ejectment. -- In such a case, 'article 148 (present article 66) * applied and limitation began to run from the:date of fbrfeiture incurred (i.e. the 'date of wrongful alienation of the property), unless the lessor, by a positive act, .aﬂirmed the tenancy and thereby waived the forfeiture. .fI'hese and similar rulings' are concerned essentially with the law of landlord and tenant. Depending on the "'view taken on the question of substantive rigits of the parties, there may result 3 diﬁerence as to the precise article 'of the LiIT_n'£ati;on Act that would be attracted to the particular situation. For that reason, it seems hardly necessary to-pursue the matter further. -- I ' I . 2 .1 ' " ~ $5.27. It may also be mentioned that tenalnciesv of agricultural lands are nowimostly regulated by the Land.Reform I.'=.aws_, enacted' by various States. As regards non-agricultural land, again, various ;r_ent;contl;ol laws now contain the of forfeiture. _ «law in respect of residential buildings in urban areas. The area where the {pro- p visions of the general law of landlord and tenant applicable to tenancies has now considerably shrunk. Thus, the article undet'_iiisei.Ission has limited utility, I which is" practicablye conﬁned to residual grolmjds not touched by "special 7 legislation} ' I p I 35.28. In the above position, a change in the particle is not considered No' Chang. ' p "-necessary. ' I "°°d°d* ' g;dgj§7._ 3 (35.29. Article 67 reads as under:----

; "$7. By a landlord to recover posses- Twelve iwhénatheg tenancy is determined." sion fromatenant. years. ' " ' -

'It is identical with article 139 of the Acts "of and 1877, and with article; 140 of the Actof 1871. I .

35.30. Some controversy seems to exist as regards? the legal representatives Represgmgigiga of a tenant. In one case,' the Madras High CotIrt'obfserIied that a tenant holding §21:i;En;1'}:r'__ over after the expiry of his term became a tenant onlsulﬁerance. The High Court whcther at " further held that the representatives of a tenant on sulferance were mere trespassers @031"- e and the lessor could not (by his assent alone} convert such representaitives into "tenants"_ Without their concurrence. However; inatiother case of the same'High ' lsrjnivas Ayyar v.§Mut}zusami Pillai. (I901) I.L.Ri14 Med. 246. ' 'Afrnamaiai V. Vythilinga, A.l.R, 1937 Mad. 295. g; ' "

I 3 I 35.32,'f. . .2 , ; ;I%;d:lnpst(t,IlFa1l;7'lt§{?asimh:z'r1nrav. Dronamraju, (I908)'!l.:L.l:lm' hgad. 163.

, 2'1 C. 1,56 Mortsasee in .

possession-,-

4240 change ngsded. -

Argicré 68. , _ a'landlord.- >-

'\

- "68.l/Tor speciﬁc movable _ 548. For speciﬁc movable property J». "48. For speciﬁc movable property I ' - .. i . ' ,--.

8911+ REPORT or LAW_ COMMN. or INDIA on-inns LIMITATION ACT, 1963 \ (C/zapteir 35 ~ Articles 61 to 67 .' Suits Relrzting to lmmoivable Property) (Chapter 36-- -Articles 68 to 71: Si_u'ts Relating to Movable Property) A i A . \ Court} this view was dissented from and _i.tiwas'held that a suit againstthe representatives of a tenant after the deteigminaﬁioniof the tenancy was governed"

' by article 139 of the Act of 1908 (present artic1e67). The Allahabad High Court"-' has also 'concurred in the latter Madras view. In such a case, the landlord ' should' be able to give his assent to their coﬁtintting in the p0ssession,----as he_. could have done if the deceased had been alive. As the latter view seenis to meet the requirements of the provisions of section its T.P. Act.

35.31. In one case,' the erstwhile Hyderabad High Court held that where the mortgagee leased the mortgaged property to the mortgagor as his tenant and subsequently sued the mortgagor for ejec§trr1et:Yt,fthe. claim for possession was not by the mortgagee as such, and would be7governed,by article 139 of the Act of 1908. But the Lahore High Court has observediftltht the plaintiff was not suing the defendant merely as a landlord -for theiriiejéecnnent, but he had brought the 'suit on theybasis of his right as a mortgagee possession.

. / , 35.32. Ordinarily, we would have gone -into details of such controversies, revealing a disparity of views. However, "the general law of landlord and tenant

-has now veryilimited application," and the article: is how needed' only for tenancies ' not embroiled by special legislation; Its utility.' being so limited, we would leave' the matter at that. ' . ' e 3 ; In the result no change is needed in article. I CHAPTER K T ARTICLES 68 to 71: SUITS ﬁl0VABLE PIIOPERTY 36.1.'ArtiC,le 68 reads as under :-- I M' i / M / 'iwhen the person having the righ to possession of the property ﬁrs' . » learns in whose possession it is."

property Three lost, or acquired by theft, or dis-' years.

-honest misappropriation or con-

- version. -

This corresponds to the ﬁrst part of an article 48 of the Act of 1908. The' second' partsof that article forms part of present article 9.l(a). Article 48 of that I Act is reproduced below : -

Three ;Whct§ the person having the right years. '_''»to ﬂte possession of the property learns in whose possession, 3 ﬁt isz'? \ lost or acquired by theft, or dis-

honest misappropriation or con-

version--or for\wrongfully taking or detaining the same. / Article 48 and' 49 of the Act of 1877 wieire-_a_s. : --

T-hmie {When the person having the right yeuis. to the possession of the property_ ' (7.ﬁrst learns in whose possession it is.

' lost,' or acquired by theft, or dis-

honest misappropriation or con-

version, or for compensation for wrongfully taking or detaining the same. .

'-Sulvbravcri Rzzmiah v. Gundala Ramanna. (19.10) I."L.R. 33 Mad. 260.

"Shea Dulare Lal Sah V. Ammt Ram, A.I.R. 1954. _ ,. 47§. 3See also Sizrdaraman v. Sundar Lal, A.I.R. 1968 17361 'Ranba v. Bartsila/, A.l.R. 1953 Hyd. 231. L~ , . p 5 5Amru v. Santa, A.I.R. 1936 Lah. 441. -' ' " "

'See' discussion relating to article ~_b6, para 1 V.

33. For iastoccurring in the a to' change the same.

article. . )

- 'Law 89TH REPORT or LAW' com/.viN. OF INDIA 'ON' Tina" LIMITATION ACT: 1953 (Chapter 36-. e/lrtic/es/68 to 7/: Suits to Movable Property) "49. For other specific movable pro-

perty or for compensation for 3 wrongfully taking or injuring or wrongfully detaining the same.

Three Wllienithe property is wrongfully years. taken or injured, 'or when the 'detainer's possession becomes un- -

lawful."

Articles 26 , 33 , 34 , 35 , 47 , 48 of the Act or.1;s71 were as under:----.

W "'26. Fo;'tal<i11g or damaging movable property.

wrongfully detaining title deeds. ' For wrongfully detaining any other movable property.

35. For speciﬁc recovery of movab-

le property in cases not provided for by this Schedule numbers 48 and 49. ' (47. For lost movable property not dishonestly misappropriated or converted.

- V, .48; 'For movable property acquired _by theft. extortion, cheating, or dishonest misappropriation or.

cpnversion.

- 1 36.3. Some case law has gathered around 'the expression "

rticle.' However, this_is a of art a gWe would not therefore 'recommend any change in the Article 69 reads as under :-

'!.'69. For other speciﬁp movable pro-

/ .

perty.

W second part of that article forms part of was as under:----

"49. For other ..,speciﬁc movable pro-

petty 'or for compensation for V wrongfully taking or injuring or ' wrongfully detaining» the same.

N ~ . - i v ' sion of India, 3rd Rcport<(Limi\_t*If¢§zi':§{§§:..;i9.08), page 45. bara 12:.

One : Whentlie taking or damage occurs.

year. ' Two When the title to the (property com-

years. pfisedjn the deeds ls adjudged to ' the plaintiff, or _' the deta1ner's possession otherwise becomes un- lafwful. A Two' I the detainer's possession be-

years. 3 comes unlawful.

Two I When the property isldemanded and years. refuscti. _ 1 ' .

/l A Three. When the property is demand years. and refused. ' .

Three Ditto."

years. .

/ 36.2. The»Law Commission, in its Reportlvorigthe Act of 1908, recommended that in respect of article 48, the period of .3 date of accrual of cause of action should be 'madeihe starting point of limitation. ;In thepresent Act, article 48 of the 1908 Act been split up.

years plight 'be retained, but the 9 'Three When the property is wrongfully years. taken." ~ .

W * jThis corresponds to the first part of ¢f..the Act of 1908. [The present 9l(b)]. The whole article Three When the property is wrongfully years, taken.or injured or when the de-

'"¥iii1er's: possession becomes un- '? lawful."

~ Article 49 orme Act of 1277 was in gdeeoéeall terms.

.< Law Com-

mission'! , :V Report, movable property" tl::d';:""° nd we do not wish ' Article 1'-l

-av:

158 ~ A 89TH REPORT or LAW COMMN. or INDIA ON' THE LlMll'ATlQN ACT, 1963 (Chapter 36~-Articles 68 to 7/: Suit: Relating to Movable Property) Articles 26 , 33 , 34 , 35 , 47 and 48 ot_ the Act 'of 1871 read as under:~--

"26. For taking or damaging movable One When the taking or damage occurs,' .

property. year.

33." For wrongfully detaining title Two When 'the 'title. to the P1'_0P9TtY V deeds. years. compiisedln the deeds rs adjudged'

- . ~ to the plaintiff. or the deta1ner's possession otherwise becomes un- lawful. _

34. For wrongfully' detaining any Two _»When the possessionibecomes un- other movable property. years. lawful.

35. For speciﬁc recovery of movable TW5 K When the property is demanded and . property in cases not provided for years. . refused. . r - by this» schedule numbers 48 and ' 49.

47. 'For lost movable property not Three' iWl1eV'ih the pT'.;pC'.'i.)'iS deﬁrzmded and --

dishonestly misapp.opriated or years. reitired. ' converted.

48. For movable property acquired by Three _Ditto."

theft,/extortion, cheating or dis- years. ' honest misappropriation or con-

. version...

No change is needed in the article. \ I 7-1 Argick-_ "lo, » 36.5. Article 76 reads as under :--,-- i ' . '7 4 ,_ - . . ' '70. To recover movable property de- Three The date of refusal after demand." ' posited or pawned from a depo- years.

sitaryfbr pawnee. ' It corresponds to article 145 of the Act of,l1908, which was as under:------

A "145. Against a depositary or pawnee Thirty 'The date of the deposit or pawn." to recover movable property de- years. -

posited,or pawned. ' ff his is identical with article 145 of the l{f8'l7 Act. Article 147 of the Act of 1871 was as under : ~ - ' "I47. Against a depository or pawnee Thirty 'The ;date of the deposit or pawn to recover movable property de- years. V unless where an acknowledgement posited or pawned. ~ of the title of the depositor or ' pawner, or of his right» of redemp-

3 ..tion', has before the expiration of .the:.':prescribed period been made r l in writing, signedby the deposi-

\ . tar}; or pawnee, or some person claigning under him, and in such 'case, date of the acknowledge= .; meat." L. -

In the present Act, the period is three §'ea;§;;'but§ it is to be computed from -the date of refusal after demand. 1 ' . . -- ' E,;'C';,g_ _ 36.5. The Law Commission, it its _R::éportg;on%thei-- Act of 1908,' observed A ' I that in article 145 of that Act it would be' more appropriate to make the date of refusal' after demand as the starting limitation and that the period should'be ﬁxed as three years from that data. 1 The recommendation has been accepted in article 70 of the prese Act of 1903. T _ _ -

- _ 'Law Commission, 3rd Report (Limitation j,jAct,='E (8)5 page 45, para 121. . p ' V - .1 g .- R ugh - 2: ' 13; act,'_enacted place of article 145 of the, 89TH REPORT or LAW COMMN. or INDIA ON me LIMITATION ACT, 1963 . j i i (Chapter 36»-Articles 68 to 7/: Suits Relating 'to Movable property) ' 36.6. There is some diversity of views as to the expression "movable pro- Money?-

. perty" as occurring in the article.' One" view; is that money is "movable property'":a:'g°;p";g;;

" for the purposes of this article. A contrary view has, however, been taken by Q0nﬂ10t.= some High Courts? In an Allahabad case, the main relief claimed by the plaintilfs ' "was the recovery of certain sum which repnesented the price of goods deposited, and interest on "the same. It was held that such a' suit could not be described to be a. suit for the recovery of "speciﬁc movable property deposited' or pawned"

. within article 145 of the Act of 1908. » The expression "movable property" has 'been_-deﬁned in various Central Acts. ' Thus, section 22 of the Indian Penal Code restricts the expression "movable property" to 'corporeal property, that is, property which might be perceived by the senses. Section 3(36) of the General Clauses Act, 1897, deﬁnes "movable property" as meaning property of every description, except immovable property:

. The Transfer of Property Act,'1882, does not- deﬁne the term at all. Section 2(9) of the" Registration Act, 1908 makes a special provision for including certain items aspa species of movable property. Section? 82 of the Companies Act, 1956 3 makes a share or other interest of any member in a company to be a "movable property". None'of these Acts. however.' speciﬁcally provides that money is movable property. . I 36.7. Ordinarily such a conﬂict of views would need to be attended to. But No change ' A t we note that in the Andhra Pradeshocase, this was only one of the grounds of ''°°d°'''' '' * decision, and the decision was based on a number of alternative grounds. We do. not therefore consider it necessary to recornmendfany change in the wording of the article. We may add that the recenttrend "is not to include money in this' article. --

' 36.8. Article 71 reads as under 2-: ' A - I A."i°1° 71- ,"7 1'. To recover movable property de- Three' When the sale becomes known to posited or pawhed, and afterwards years. the plj.intiﬁ'."

\ bought' from the depositary or A I ' ' ' .

pawnee for a valuable considera-

tion. -

K It corresponds to the latter half of arﬁcle 48.-A. of, the Act of 1908. This ' splitting up of the article was done on the recbmmepdation of the Law Commission inyits Report on the Act of'l908.' ' ' s > Article 48- of that act was as under :--.~ "48-A. To recover movable property Three." the sale becomes known to ~ ' conveyed or bequeathed in trust, ' years. pl§.intiﬂ'."

deposited or pawned, and after- . j wards bought from the trustee, depositary or pawnee for a valu- I x.

able consideration. ' ( = 'In article 133 of the Act of 1877, the starting point was the date of the :purchase and the period prescribed was 12 years; V 1(a) Central Warehousing Corpn., New Delhi' v. C"entrq1_ Bank of India, Hyderabad, A.I.R_ 1974 AP. 8. 'f ; ; ' (ls) Ahilyamba v. Subramania. A.I.R. 1954 Mad. 101:',

(c) Lula Govind V. Chairman, 6 C.L.J. 535_ ,L 2(a) Khairul Basheer v. Thanna Lal, A.I.R. 1957 A1,}. 553., { ' (b) Balakrishna v. Narayanswami, I.L.R. 37 75 ' _ "Law Commission of India, 3rd- Report (Lirni , ' V_f§E5.z:t,%1908), page 45, para 121.

160' Art,iete<72. . -

I A report 3 0I,.the« Law Qommisgiong I ' 'ﬁ72. For compensation for doing or One' r ' 1 89TH REPORT or LAW COMMN. or lNDlAs.ON' THE LIMITATION ACT, 1963 '(Chapter 36--Articles»68itoL71: Szlirs Ilielattng to Movable Property) Chapter 37~--ArticIes 72 to 91 : » Suits Relating' to tort) » In the Act of 1871, article 133 reads as' under :--

"l33. To recover movable property Twelve The,date of the purchase."

' conveyed in trust, deposited or years.

pawned and afterwards bought from the trustee, depositary or paw-nee, in good faitli-and for 'value.

' \ The article needs no change. .

' CHAPTER 36 ARTICLES 72 TO 9i=/ SUITS RELATING TO TORT 37.1. Article 72 reads as under :~= ' i_ . A ~ _ . When the act_ or omission takes for omitting to do an act alleged year.. place."

to be in pursuance of any enact- 7 ment in force for the time being Q' in the territories to which this Act extends.

- Article 2 of the Act of 1908 was in the same language, but the period was .90 'days. ' V Article 2 of the Act of. l877 wasas under:---

'"2.' For compensation for doing, or _ Ninety' When the act or omission takes for omitting to do, an act alleged' days. " place." 'to be in pursuance of any enact- ' ment in force for the time being in British India. / _A.I'tiC1€'2 of the Act of 1871 was in identical terms. 37.2. he Law Commission,' in its Repoxjtbri the Act of 1908. recommended at periodpof 3 years for such suits. The reasons -given were as under:---- ' ','Arlticle-=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 11] India.' The period of limitation is 90 days and time beings to run when the act or omission takes' place. This article is intended to cover the case provided' for in England; by section 8 of 'the Public Authorities (Protection) Act, 1893. The provisions therein' are somewhat elaborate and the period of 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 pubiic duty, or authority, or in' respect of any neglect or default or in the execution of such Act, duty or authority. It protects the public autho 'ties'by providing' a shorter period a of limitation. It has been held that.' so long the officer concerned acts honestly and bonaﬁde. he gets the adiantage of the shorter period of limita- tion. If the statute authorises the injury, no action lies. If an oﬂicer pur-- porting to act, in pursuance of statute,-'does; sonrething which causes an injury or by reason of his omission toido an act an injury results, the person 'Law Commission of India, 3rd Report Aét), "vanes 40-41. ' . {T} It 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 ~ . (Chapter 37»--Articles 72 to 91 .' Suits Relating to T art) 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 ac-

tion 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_ six 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 8 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 of the Act was repealed and a proviso to sub-section (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 injury. whether caused by a private individual or by a public authority is 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 for all suits on tort for which we propose to prescribe a period of three years from the date of accrual of the cause of action. There does not seem to be any justiﬁcation for making a distinc-

' tion between public authorities and a private citizen except in matters like notice under section 80. C.P.C. Further, if a shorter period for suits against public authorities is prescribed, it will compel parties to rush to a suit with- out exhausting the possibility of getting redress by negotiations which neces- sarily 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 subject. 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." -

37.3. The dissenting note of Dr. N. C. Sen Gupta,' to the Report of the Law Commission on the Act of 1908. was as under :--

"The reasons for the proposed amendments in respect of article 2 are ﬁrstly, that there should be no difference 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 enactment in force is nothing but a tort for which the Government is liable. To the general principle of parity between the Government and private persons in respect of limitation, I have no serious objection. But there are important differences between suits for ordinary torts by private persons and suits under this Article. There may be suits of this character which a're 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 inter- pretation 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 thepdecision goes against the action of a particular oﬂicer. the Government maytake early steps that further action may not be taken on the erroneous view of law. Further, it must be re- ' membered that the Government is made vicariously responsible for the acts of: its oﬂicers and having regard to the extremelv large area of Government activities and its responsibility for acts of a multitude of officers, it is neces-

22---14'Mof LJ & CA/NDI83 .'Law Commission of India, 3rd Report (Limitation 'Act, 1908) pages 69-70.

\ Dr. Sen Gupta':

dissent -to the earlier Report.

162

Need for amendment and recom-

mcndation.

Time taken in prelim1- I. 119-1'? 3993- 89111 REPORT or LAW COMMN. or mom on me LIMITATION ACT, 1963 (Chapter 37----ArticIes 72 to 91: Suits Relating to Tort) sary that the courts' decision about the correctness or otherwise of the , act of such oﬂicers should be made known to the government as soon as possible.

"Public policy requires that acts of government ofﬁcials 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 administration may not 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 discrimination 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 justiﬁesa short period." ' A 37.4. The recommendation made by the majority of the Law' Commission in its Report on the Act of 1908 was to increase the period to three years, but the period has been increased (by the Act of 1963) only to one year.

37.4A. In this -connection. an aspect to which attention must be drawn IS the fact that where a private person Wants to sue the Governmenf"or a public oﬂicer in respect of an act alleged to have been done under an enactment. consi-

derable time of that private person is taken up in certain preliminary stcps. These preliminaries include----

(i) collecting the necessary information:

(ii) getting the necessary copies of documents etc. from the public office concerned;

(iii) taking legal advice; and

(iv) arranging for the payment of court fee and other expenses.

Furthermore. the scope and importance of suits governed by article 72 is daily increasing. as almost every official action affecting the rights of a citizen now takes place under the colour of some enactment or the other. To put the matter in different words. the sphere of common law wrongs is diminishing and the sphere of wrongs taking place under the colour of statute is expanding in volume. day by day. It is. therefore, necessary that the increased importance of such acts should be realised and reflected in the law of limitation. For this important reason, we recommend that the change mentioned above so as to increase the period of limitation to 3 years should be carried out. In reaching this conclusion. we have not overlooked the points that were raised in the dis- senting note of Dr. Sen Gupta appended to the report of the Law Commission' on the Act of 1908. However, on deep reflection. we have come to the conclu- sion that the increasing importance of suits falling under article 72 and the diﬂiculties of the litigants (in the shape of time consumed by preliminaries to such litigation) must be given great weight. It. is true that there is need to ensure that the validity of an official act is decided without unreasonable delay-which was one of the points made by Dr. Sen Gupta. However. three years would not be ' too long a period or an unreasonable one.' having regard to the considerations that have been mentioned above.

'Law Commission of' lijziort (Limitation"Actr,"r~l9lllll/ 3'5, supra. ' F \ 39TH REPORT or LAW CQDMMN. or INDIA ON THE LIMITATION ACT, 1963 168 (Chapter 37----Artic/es_72 to 91: Suits_Re/ating to T art) 37.5. We must also state that recently there has been a spate of cases alleging Diﬁipulty torture' of undertrials'-3 and these were detected after a long time. Thus, the gag?"

litigant against the Government suing for acts done under alleged statutory autho- Government. rity has to face a serious practical difficulty. In fact, the Judicial Commissioner, Nagpur," had as long back as in 1877, anticipated that damage caused by a public servant may not come to be noticed for quite some time :--) "The period of limitation provided is very short. In many cases notice of one month has to be given before suits of the kind referred to in this article can be instituted, so that the party injured has only two months after the act or omission takes place, within which he must make up his mind to bring his action. Section 424 (Bill No. IV) Code of Civil Procedure. pro-

poses six months as the period of limitation for a suit "against a public _ officer for compensation for an act allegedito be done in his official capa- 1 city." The same period might well be allowed, for actions of the kind referred to in Article 2, especially when it is remembered that material damage would in many cases not have resulted in the short period allowed by the present law".

37.6. We are mentioning this to show that a tort committed by public servant Recommenda- may remain undetected for a considerable time and hence we re-iterate the earlier "°"- recommendation of the Law Commission about enlargement of the period of limitation to three years. ' 37.7. This takes us to article 73, reading as under :--+~ . Article 73.

"73.'_For compensation for falseimpri- One 'V When theimprisonment ends."

sonment. year._, It isidentical with article 19, of the Acts of 1908 and 1877.

In the Limitation Act of 1871, article 21 was_as under:--

"2l. For false imprisonment. One V When the imprisonment ends."

» \ year.

The words 'For compensation' were added in the year 1877 in the first column. «This, probably, was done as a result of the suggestion received through the Com- missioner, Central Provinces. on the draft article 'of 1877 Act: ' 7 "Better say" for damages or compensation "for false imprisonment."' The Law Commission" made the following observations on the corresponding article of the Act 'of 1908, in its Report on that Act:-- , "Article 19 provides for suits for compensation for false imprisonment, a period of one year from the time the imprisonment ends. This is a suit 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." ' ' As the article has not given rise to any serious controversy, no change is recommended.

' 'Khatri v. State of Bihar, (1981) l S.C.C. 623, 627.

"Ant! v_ State of Bihar, (1981) 1 S.C.C._ 622.

3Judicial Commissioner, Central Provinces, letter No. 461 dated 12th March, 1877, National Archives File, Paper No. 7, page S. _ . _ _ _

- 'Letter No. 778 dated 12th April, 1877, Judicial Commissioner, Central Provinces, National Archives File. 1877._ Paper 11, page 6_. _ _ 1 . 'Law Commision of India, 3rd Report (Limitation Act, 1908), page 41, para 110.

o \ 164 Article 74.

History. -

I.a_w_ Com-

\li1lsS.l0n'I recommenda-

Vticm.

Article 74- Controversy as _to starting I paint of limitation.

89m REPORT or LAW COMMN. or INDIAAON Tl-IE LIMITATION ACT, 1963 (Chapter 37--Articles 72 to 91 : Suits Relating to Tort) 37.8. Article 74 reads as under :--

"74. For compensation for a malicious» One When the plaintiff is_ acquitted or prosecution. year.

the prosecution is otherwise ter-

tminatcd."

It is identical with article 23 'of the Acts of 1908 and 1877. Article 23 of the Act of 1871 was as under:

"23. For a malicious prosecution. One When the plaintiff is acquitted."

year. 1 37.9. When the draft Bill of 187.7 was circulated for comments, the earlier phraseology (Act of 1871) was changed by adding the words "or the prosecution is otherwise termiIIated".1 The following comment was received on the proposed change:---

"When can a prosecution be said to have terminated? Has it terminated if the accused be released on the ground that a conviction was held before a Court which had no jurisdiction, or upon some other technical ground which leaves the accused still liable to be prosecuted? See Chambers v. Robinson. 2 Str. 691; Wicks V. Pentham 4 T.R. 247; and T ippet V. Neasm, 4 B. & Ald. 634. An acquittal upon a technicality is a different thing from a convic- tion set aside for want of jurisdi'ction.""' The other comment seems to be more pertinent and applauded the proposed change as follows :--

"The note in 'Thomson' as to this is quite correct-- an acquittal is not necessary for the purpose of bringing an action. The termination of the prosecution is the time from which limitation should run."-"

_ \ The then Secretary, Legislative Department agreed' with the latter view and the text of the article was ultimately passed as it was proposed.' 37.10. The Law Commission in its Report on the Act of 1908 recommended' a uniform period of 3 years for suits founded on tort. [It had no speciﬁc comments on the corresponding article of that Act as such].

However, the recommendation to increase the period to three years was not ' accepted, and the period of limitation has remained the same as before (one year).

37.11. A controversy still exists in regard to the starting point of limitation period in the third column. There are two starting points given in the third column. They are--(l) when the plaintiff is acquitted, or (2) when the prosecution is "otherwise terminated."--a test added' in 1877. According to the Bombay ,High Court', these two different points are applicable to two dissimilar circum-

stances. The order of acquittal or of discharge passed by the trial court remains (agsorcling to this view) operative for the purposes of limitation and the ﬁling of 'Statement of Objects and Reasons; National Archives File 1877, page 1.

"Letter dated 19th April, 1877 from Charles D. Field, National Archives File 1877, Paper No. 8, page 8.

3Demi Oﬂicial letter from the Hon'ble Sir Richard Garth to the Hon'ble Arthur Hob- house dated 24th July, 1876_ National Archives File 1877, Paper 2, page 4. 'Note in National Archives File 1877, Paper 1, page 5. 5Law Commission of India, 3rd Report (Limitation Act, 1908), page 44, para 116. "Paragraph 37.9 supra. ' * 7(a)Bhaskar v. Kishanlal, A.l.R. 1968 Born. 21.

(b) Purshortam Vithaldas V. Rnvji Hart', A_I.R. 1922 Bom. 209.

2 Court observed' as under:

89m REPORT or LAW comm. or man ON me LIMITATION ACT, 1963 (Chapter 37~~Artz'c/es 72 to 91 .' Suits Relating to T ort) an appeal or revision in superior courts does not stay its operation so far as limitation is concemed.- In one of its more recent cases on the subject, that High "The original acquittal is still operative and on the language of the provi- sion, it is the date of acquittal from which time begins to run. The other alter- native is that 'the prosecution is otherwise terminated'. Now, whenever a prose- cution is started, it may not necessarily end_ in an acquittal. ' A prosecution may end, either in acquittal or conviction. If it is the first, then, it is governed by p the first part of this provision, and it it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissaljof the com- plaint if the complainant is absent on the datepﬁxcd for the hearing of the com- plaint. The latter part of the provision 'the prosecution is otherwise terminated' is intended to meet such cases, and here again. it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run."

The High Court further pointed out that whenever the Legislature intended that the time should commence to run from the ﬁnal order, it had expressly said so. The following observations of the Allahabad High Court in its earlier case" on the subject reﬂect the same approach : --

"A perusal of article 23 of the Limitation Act (of 1908) goes to show , that that article deals with two alternative' cases: one envisages acquittal and the other termination of the prosecution. So far as the second alternative or the expression 'termination of the presecution' goes, that is not applicable to the present case. That governs such cases as those of discharge. It is the first alternative which will govern the case of acquittal; and 'acquittal' would mean acquittal from the trial court or if there is conviction from a trial court, then the order of acquittal was passed in appeal or revision. In a case where acquittal has been ordered by the trial court and the complainant has ﬁled revision, the ﬁling of revision cannot alfect the order of acquittal already passed. It will remain an order of acquittal till the acquittal is converted into an order of sentence. It would thus appear that under article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the trial court or in appeal if there was conviction from the trial court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal."

On this view, the ﬁling of a revision against acquittal does not suspend the running of limitation which has once started. * 37.12. The opposite view has, however, been taken in a later decision of the Allahabad High Court?' A full Bench of the Madras High Court took this view quite a long time back.' A Same view has been taken in comparatively more re- cent judgments of the Mysore" and Rajasthan" High Courts.

The pivotal objection of the Bombay High Court to the acceptance of the Madras view' is contained in these observations in one of its judgments."

'Bhaskar v. Kisanlal, A.I.R. 1968 Bom. 21. 22, para 3.

2Madho La] v. Hari Shankar, 'A.I.R. 1963 All. 547, 548, para 5 (M. Lal J.).

'Madha Lal v. Shyam Sundar Vaish. (1969) All L.J. 587, 589 (See paragraph 37.13, infra). ' 'Kulasekara Chetty V. Tholasingam Chetty, A.I.R. 1938 Mad. 349 (FR).

5Basappa Sangappa v. Narayanappa Kriyappa, I.L.R. (1973) Mys. 201, 206 (See infra). .

°Ramvilax v.'Gopal Lal, (1973) Ray. I..W. 92 (See paragraph 37.14 infra).

7Kulasekara Chetty v. Tlzolasingam C/telly, A.I.R. 1938 Mad. 349. _ ' 3Bhaskar V. Kisan_IaI, A.I.R. 1968 Bom. 21, 24. . _ Opposite school of thought.

1,65 _AlIahabad judgment.

V statesman 'ﬁt'.

edz' hit ,4 89rn neporgr or LAW camw. or lN)IA on me u.\rr'r,x'r1o,N AC1', 1963 (Chapter 37- --Articles 72 to 91 .' Suits Relating to T art) ''In our view, therefore, there can be no justiﬁcation to add the word 'ﬁnal' before the word 'acquittal' according to the Madras .High Court, and the word 'ﬁnally' before the words 'otherwise terminated'."

This objection has been met by the Mysore High Court, which has observ-

"lhe criticism, therefore, that the Madras view illogically imports the idea of ﬁnality or actually adds the -word 'finally' or 'final' to the language of the third column is, with respect, not justiﬁed. Finality is actually inher- ent in the choice of the word 'terininati0n'. Taking, therefore, the two things together, viz., that one of the essential elements in the cause of action for malicious prosecution is termination of proceedings in favour of the 'plaintiff and that there can be no termination if proceedings are continued until one reaches the stage where further continuance is not possible, then it follows that if the acquittal entered by the trial court is taken up on appeal: the plaintiff is not in a position to say that the proceedings have terminated in his favour, and that, therefore, the cause of action itself is not complete so as to start the running of time in favour of the defendant."

37.13. The Allahabad High Court has also, in a later case held' as under :--

"The phrase used in article 23 'of the Limitation Act ﬁxing the point of time from which the period of limitation begins to run as 'when the plaintiff is acquitted or the prosecution is otherwise terminated', must be construed as equivalent to 'when the rosecution of the plaintiff is termi- nated by acquittal or otherwise'; and determination of the prosecution by acquittal shbuld be deemed to occur only when all appeals and revisions that may have been filed' against the basic order of acquittal have been ﬁnally disposed of. This interpretation obviates the necessity for making an illogical distinction between cases of acquittal and cases where the prosecu- tion is terminated by discharge, and it has the further merit of avoiding the possibility of hardship for the plaintiff by permitting him to wait until his acquittal has been placed beyond doubt before he ﬁles his suit for compen- sation for malicious prosecution." V 37.14. In the Rajasthan judgment," the following passage represents a simi.

view:--

"The phrase used in article 23 ﬁxing the time from which the period of limitation begins to run as 'when the plaintiff is acquitted or the prose- cution is otherwise terminated', must be lnterpr-stcd as meaning 'when the prosecution of the plaintiﬁ is terminated by acquittal or otherwise' and the termination of the prosecution by acquittal should be ('seemed to occur only when the appeals and revisions that may have been filed against the order of acquittal have been ﬁnally disposed of. I am further of the opinion that the words used in article 23 of the Limitation Act 'when the plairitiﬁ is acquitted' must not be read independently of the words or the prosecution is otherwise terminated'. The illogical distinction pointed out by the Bom- bay High Court between the cases of acquittal and those where the prosecu- tion is terminated by discharge would only lead to hardship and one will have to incur expenditure of ﬁling the suit even before the order of'acquitta_l added) 'Basappa Sangappa V. Narayanappa Kariyappa, l.L.R. (1973) Mys. 201, 206 (Lin Jhasis 'lVladho Lal. v. Shyam Sunder Vaish, (1969) All. LJ. 587. (D.B.) [The earlier case of 1963 does not appear to have been cited].

"Ram Vilas v. Gopal Lal, (1973) Raj. L.W. 92, 94 (Modi J.).

89TH REPORT or LAW COMMN. or mm». ON THE LIMITATION ACT, 1963 (Chapter 37--«Artic/es 72 to 9] : Suits Relating to T art) passed in his favour is still sub-judice under appeal or revision ﬁled by the complainant or the State."

37.15. In this context~.ethough this is a matter of substantive law»--it may American be worth mentioning that the Restatement of the Law '(Second) on Torts' has R°sm°m'm' this to say regarding the termination of proceedings for the -purpose of the tort_ of malicious prosecution:~----

"658. General Rule : To subject a person to liability for malicious pro- ,secution, the criminal proceedings must have terminated in favour of the accused."

"659. Manner of Termination: Criminal proceedings are terminated in favour of the accused by

(a) a discharge by a magistrate at a preliminary hearing, or

(b) the refusal of a grand jury to indict. or V (C) the formal abandonment of the proceedings by'the public prosc-

cutor, or (ti) the quashing of an indictment or information, or

(e) an acquittal, or

(f) a ﬁnal order in favour of the accused by a trial or appellate court."

37.16. Street has dealt"-' with this ingrediant of malicious prosecution thus: English "The proceedings must have terminated in favour of the plaintilﬁ §'§',',"," to Even though the plaintiﬂ has been convicted of a lesser offence', or has had 05 his conviction quashed on appeal, or has been acquitted on a technicality, ,§','{,';°,2d3.,,, e.g. ardefect in the indictment, this requirement is satisﬁed. If the conviction of the plaintiff stands. then even though there is no right of appeal from it and although he can satisfy the court in the instant proceedings that the conviction was grossly unjust, there is no cause of action in this tort. The ' plaintiff seems to satisfy the present requirement if he proves that the defen- dant has dis-continued the proceedings; the plaintiﬁ cannot sue, it seems, while the proceedings are still pending."

37.16A. It may also be added that Charles D. Field hit the nail on the head in 1877 when he asked the question: "when can a prosecution be said to have terminated"? Even now, the ditference of opinion continues. A review of the' state of_ the law made above shows that the majority of the courts would be reluctant to entertain an action for damages for malicious prosecution unless they are satisﬁed that the judgment may not be rendered infructuous by a subsequent decision 'in the criminal proceedings. ,9 _ 37.17. The net result of the above discussion is that there is an obvious con- Recommengi. ﬂict of views between the--Bombay High Court on the one hand and the other "°" ' High Courts on the other hand. There seems to be a need for clarifying the ' 'American Law Institute Restatement (Second) on Torts (1977) Vol. 3, Articles 658, 659_ ' 3Harry Street, Law of Torts (1976). page 397.

-"This requirement is not imposed where, for example, an arrest or search warant is procured. . _ \ 'Cases cited in suport of the discussion have been omitted.

\\ .

163

Article: 75-76.

English lapv.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37-----Articles 72 to 91 : Suits Relating to Tort) position.

of the Allahabad High Court and the rulings of the High Courts of Madras, Mysore and Rajasthan), we recommend that in article 74, before the word "terminated", the word "ﬁnally" should be added. Apart from the fact that i . such an amendment would be in harmony with the majority view, it will be of considerable practical utility and avoid the ditliculty that might be caused. if limitation is to start running even where the proceedings constituting the cause of action have every possibility of being rc-opened in a higher court.

37.18. The next two articles are concerned with defamation, and may now be taken up.

(a) Article 75 reads as under:--

One" When the libel is published."

year.

"75. For compensation for libel.

It is identical with article 24 of the Acts of 1908 and l877. - ~ L Article 24 of the Act of l87l reads as under :---~ ''24. For libel. ' One When the libel is published."

year.

(b) Article 76 reads as under:

When the words are spoken, or, if the words are not actionable in themselves, when the special I damage complained of results."

"For compensation for slander. One, year.

It is identical with Article 25 of the Act of 1908. ' In. the Act of 1877, Article 25 was as £ollows:----

When the words are spoken, or, "For compensation. for slander. One _

- if the words are not actionable year.

in themselves, when the special "

damage complained of results."

' Article 25 of the Act of 1871 was as under:--

"For compensation for slander. One When the words are spoken."

year.

Though libel and slander fall under the general heading of the tort of defa- mation, the Limitation Acts, right from 1871, have been treating'the causes of action for these two types of torts as. distinct.--though the period of limitation is' one year in both the cases.

I p 3'7.19. Halsbury states the position in England thus' :

"In an action of libel time runs from the publication, but where, for exam- ple, a block or newspaper is published and offered for sale, a fresh cause of action arises on each sale, notwithstanding that more than six years have elapsed since the ﬁrst publication. In an action for slander where the words are actionable without proof of special damage, time runs from the utter- ing of the slander. Where the words are not actionable without special damage, time does not run until the dainage occurs." A 'Halsbury, 4th Ed, vol- 28, para 689. -

In conformity with the majority view (that is to say, the later ruling, 'S9111 REPORT or LAW COMMN. or INDIA oN'-mg LIMITATION ACT, 1963 (Chapter 37---Articles 72 to 91 : "Suits Relating to tort).

37.20. Before 1871, the period of limitation} in India probably followed L¢_=8iS1|ﬁV0. the English practice. The period of one year proposed for suits for libel was Hlst°ry'~ _ explained in the statement of Objects and Reasons annexed to the Bill that lead to the Act of 1871, as follows : ~é "On the other hand, we have diminished to one year the period ﬁxed for suits for false imprisonment, for any other injury to the person, for a mali- cious prosecution, for libel, for slander, for taking or damaging movables, for loss of service occasioned by seduction, for inducing breach of contract, for illegal distress, and for wrongful seizure of movables under le-gal pro- " cess'." - ' -

-37.2l.iWl1en the draft Limitation Bill 1877 was circulated for comments, a plea was made for counting the period from the_~time when the libel came to the knowledge of the person libelled. One comment, makingxsuch a suggestion, _ «may be quoted:---- ' I ' "I would suggest an alteration in the period applicable to libel; for I think the term now ﬁxed, namely, one yeartfrom publication, may, as I know it has done, work a great hardship on the person libelled. The term should in my opin-ion, run from the date when the libel became known to him. I do not refer to cases of libel published in newspapers, for there a man reads at once what has been written of him, and can generally bring his action without further delay: but I alude to private communications, or those written under a sense of duty to a publicoﬂicial, where the person libelled, although he may have sustained loss from what he knows has been said of him, still is unable, through obstacles7put in the way_either by the writer or receiver of the communication,' to discover what has been said , against him until the year from the date when it was sent has expired, and so, though the statements or charges madefagainst him may 'have been totally unfounded and grossly calumnious, and he'has suffered the greatest loss, still because of the present state of 'the law. his suit would be barred unless it was brought within a year of the time when it was sent to the post. Section 19 of the Act would not help him, for he may have been kept from the knowledge of his right to sue without any fraud on his libellefs part, but by simple obstructions which he has put in his way. Or if it be said he knew of his right to sue before the time of limitation expired, inasmuch as he had ' been told he had been libelled, still he might not have been able to bring a suit, because. he could not, until it was too ilate,' see or get a copy of the libel-

lous document. A case of this kind occurred some 'few years ago in Calcutta where great injury resulted to a merchant whose conduct in a certain mer- cantile transaction had been improperly and falsely 'represented by his Coun- ' «. sel to the Minister of Foreign Affairs of' their country. The High Court was of opinion that the communications were'-'highlyjlibellous, and that the plaintiff would have been entitled to heavy had it not found' that the suit had been brought beyond the period alfliywqd from the date of pub-A lication, although it was brought at the earliest oﬁportunity. The case is

-- ' Charriol v. Lombard, and is reported in 1 Ihdian Jurist N.S., page '209 at _ ywq."2 ' . -(I \ .

'Another suggestion made by Mr. Field was to combine the two articles deal- . with 'libel' and 'slander' into one composite'ar[ticle*for defamation' :

'Statement of Objects and Reasons'; National Archives Bile 1871, page 4. - 'C. J. Wilkinson, Recorder of Rangoon to the Secretary to Chief Commissioner, British Burma, Letter No. 57-33, dated 27th April 1877. ~ National Archives File 1877, Paper No. 19, p, 11, ' , ».

p':ge'Il.§tter.No. 19th April 1877, Charles D. Field, National Archives File 1908, paper 6, «*3.-like-ma/sis >.;\~ xx ' ~ = '* Commt (1907) I Com-

mission':

Report.

Him'! 0' .

article relating to slander.

Position in India as to amendment hf the Limitation Act, 89rH REPORT or LAW COMMN. or INDIA ON THE LlMlTA'l'IO'N ACT, 1963 (Chapter 3717-Articles 72 to 91: Suits relating to tort.) "For 'libel' and 'slander' might besubstituted "defamation" which in-

cludes both, and which is thepeculiar term of Indian Law~--see section 499 -

of the Penal Code".

37.22. In 1907, Sir Lawrence Jenkins, Chief Justice of the Bombay High Court also expressed himself thusz' "Article 25 and 24 should be only one article providing for defamation."

37.23. The Law Commission, in its Report on the Act of 1908, did not exa- mine the above question, because it preferred one article for all tortious acts and observed thus":-----

"Article 24 relates to an action for libel and the period of limitation is one year from the time when the libel is published. Article 25 relates to slander and the period provided for is one year from the date when the words were spoken or, if the words are not per se actionable. when the special damage complained of results. It is settled law that the cause of action for libel accrues from the date of the publication of the defamatory statement. ' When slander is actionable per se. the cause of action is its publication and time runs from that date. If the action is maintainable only on proof of the special damage, the happening of the damage is the cause of action. (See Burry v. Perry' and also Darley Main Colliaryt Co. v. Thomas Wilfria'). In respect. therefore. both of libel and slander, the time from _which limita- tion runs coincides with the accrual of the cause of action. The suits under all these articles are suits founded on tort and a uniform period of three years may be ﬁxed for the institution of these suits, time running from the date of the accrual of the caus_e of action." ' 37.24. As regards the article relating to slander in the Act of 1877, in the third column of the schedule, the words "or, if the words are not actionable in themselves, when the special damage complained of results" were added, along- with the pre-existing words "when the words are spoken". Since then. there has been no change. The addition of these words was presumably intended tocover the cases which can arise under the rule of English Law that slanderious words are not actionable per se and a suit is maintainable only after when special da- mage is caused.

37.25. We have given anxious thought to the question whether articles 75 and 76 (libel and slander) should be retained as they are. This necessitates an examination of the substantive law of defamation as a tort. The common law position is that libel is actionable per se, while slander is actionable without proof of special damage (unless the case falls within certain exceptional categories). This distinction, however, hardly possesses any realistic importance in India. since most High Courts do not recognise the distinction between libel and slander. It can be asserted that net result of Indian judicial decisions is that both libel and slander are actionable as torts, without theneed to prove special damage. We are aware that there is one solitary ruling' which holds' that the distinction is still valid in the town of Calcutta, but the majority of -the High Courts have, as stated above. taken the view that the technical distinction made by English common law 'Chief Justice L. Jenkins, Bombay High Court Letter No. 2469 dated 18-l2-I901. National "Archives File 1908, paper 6. page 13. . 'Law Commission of India, 3rd Report (Limitation Act}. page 44., para 116 '(l725) Raym. I588. ' . '(1886) II A.C. 127. , 'Bhooni llloney V. Naobar, (1901) I.L.R, 28 Cai. 432, 452, 462, 463 (Case relating" to , Town of Calcutta). .

.\{ ' "75. F orlcompensation for defamation- One ' 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37---Artie-les----72 to 91 ---Suits relating to' tort.) hasno validity in India, and is not in harmony with justice, equity and good conscience and is out of tune with the notions of Indian society.'-''-3 It should also be pointed out that even in the West, the distinction between libel and slander has not been regarded as satisfactory, and has been very strong- ly criticised both by academic writers and by law reform agencies who have had occasion to deal with the subject. Though the distinction still exists in the United Kingdom, the English Committee of Defamation, popularly known as the Faulks Committee in its Report recommended its abolition and removal from the law of England and Wales, so that for the purposes of civil proceedings in England and Wales, slander should be assimilated to libel.

» In fact, in at least one Commonwealth country, namely. New Zealand. tho distinction has been abolished by statute.' It should also be recorded here that the reform eﬁected in New Zealand has not given rise to any serious problems. Sir Denis Blundell (who later became the Govemor-General of New Zealand), in his evidence given to the Faulks» Com- mittee, stated that in New Zealind the abolition of the distinction between libel and slander had not resulted in any spate of petty actions for slander.

The retention of the two articles in the present form in the Limitation Act thus tends to perpetuate a distinction which is unfair in principle, anachronistio in nature and, in any case. in the Indian context, almost out of tune with reality. It is also not in conformity with the position in substantive law, as generally understood in India. The Law of limitation should, as far as possible, maintain harmony with the substantive law and should not give a ﬁllip to a distinction that is already discarded.

37.26. In the light of the above considerations, we, are of the opinon, and we recommend, that in place of articles 75 and 76, one single article should be substituted, to deal with compensation for defamation, the period being one year and the starting poi-nt being the date of the publication or, where the defama- tory statement is not published in a permanent form, the date when the defamatory matter comes to the knowledge of the plaintiff. When the words are not published in a permanent form. it is fair that the starting point should be the plaim':iﬁ's knowledge, so that the short period of limitation available does not commence to run until he has knowledge. ' We, therefore, recommend that articles 75-76 should be replaced by one single article to read as under i--

When the defamatory statement is published, or where the defamatory statement is not published in a permanent form, when it comes to the knowledge of the plaintiﬂf"

year.

[To be substituted for present ar-

ticles 75-76.] 171- Recommenda-

tion.

37.27. This disposes of articles 75-765. Article 77 prescribes a time limit» of Article 77 one year for a suit "for compensation. for loss of service occasioned by the seduc-

and case-law non of the plaintilfs servant or daughter". The time limit is to be counted from "cm the date when the loss occurs. The article is identical with article 26 of the Acts of 1908 and 1877 and article 27 of the Act of 1871.

'A. D. Naryana Saha V. Kannamma (1931) I.L.R. 450, 451, 452. ' -

'Hirabai v. Dinshaw (1926) I.L.R. 51 Bom. 167.

3Sukhan v. Bipad (1907) I.L.R. 34 Cal 48.

'Section 4 of the (New Zealand) Defamation Act, 1954.

55 Mad 727: A.I.R. 1931 Mad 445, 172 Comments 1908.

Present English Law as to seduction.

Need for change in the law.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37--~-Artic/es 72 to 91----Suits relating to tort.) The ﬁrst case on this article is from Allahabad, in which a Hindu father claim- ed damages for the seduction of his married daughter and consequential loss of ser- vices as a result of abduction by the defendant. He also claimed the costs incurred by him in prosecuting the defendant for the offence of abduction. The trial court gave him a decree for Rs. 200 for the loss of his daughter's services and Rs. 300 for costs incurred by him in prosecuting the defendant. In appeal, the High Court dis- allowed the sum of Rs. 200 decreed as damages for the loss of service, while main- taining the decree for the costs incurred in prosecution. Stuart, C.J. discussed the English theory on which the remedy for seduction is based and expressed himself as against encouraging its introduction into the Indian legal system. He pointed out that in Scotland and other European countries, the seduced woman needed no help from her father or other relation "but may sue directly for the wrong done to her." His colleague on the bench, Oldﬁeld, J. was of the view that the English cause .of action for seduction was founded not upon the wrongful act of the defen- dant but upon the loss of service of the daughter in which service the parent is. by ﬁction, supposed to have a legal right or interest. He observed as under:---

"It would be very undesirable to introduce a fiction of this kind into the law of this country. The plaintiff cannot be allowed to maintain a suit on a contract for service which is not seriously asserted, nor indeed found to exist in fact, and which is not consonant with Hindu custom. Hindu women are no doubt dependent to a great extent on their male relatives, and they have certain household duties whichithey are expected to perform, but their position is not one of servitude, from which any contract of service can be implied."

37.28. In a Nagpur case, Mr. Justice Niyogi, while awarding damages for seduction, held that it was more appropriate to look at such a wrong as consti- tuting an invasion of the right of the family to the security of domestic relations, 'rather asian interruption of the service rendered by the daughter to her father.

However, this reasoning was not approved by the Division Bench that heard the matter on appeal. It held' that the law of torts was administered in the Central Provinces and Berar (as then constituted) under section 6 of the Central Provinces Laws Act as a rule of justice, equity and good conscience. The only law 'of se- duction was that found in the English law of torts applicable to India and it was not open to Indian courts "to invent new heads of law not covered by the Eng--

lish law, though the legislature can?"

37.29. It may be of interest to note that when the draft Bill which led to the Act of 1908 was circulated for comments, the District Judge, Guntur suggest- ed that the words "or daughter"' should be omitted from the article." On the other hand, Mr. Justice Knight of the Bombay High Court suggested a widening of the article by adding the words "or ward'";

37.30. It may also be mentioned that in England, by statute, actions for sed-I uction have been abolished?

37.31. Taking note of the case law as well as current thinking on the subject, we have come to the conclusion that there are two special aspects that necessitate a change in article 77. In the ﬁrst place, the element of "loss of service" is em-

phasised in the article, but, in India, as a matter of substantive law there is some ' 'Ram Lal v. Tula Ram (1882) I.L.R. 4 All 97.

2Babu V. Subanslzi Dlzobi. A.l.R. 1942 Nag. 97.

3Dewan Bahadur S. Gopalachariar. Avargal Distt. Judge, GIIntur. National Archives File 1908, letter No. 3073. dated 9th December, Paper No. 8, page 10.

*Letter No. 2469. dated 18-12-1907. National Archives File 1908, Paper No. _6.

-"Section 5, Law Reform (Miscellaneous provisions) Act. 1970 (Eng).

89TH REPORT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37~--Art1'cles 72 to 9l--~Sui(s relating to tort) uncertainty in this regard. This is apparent from the Allahabad decision men- tioned above.' How far the English common law rule which stresses the element of loss of service applies in lndia thus itself becomes doubtful. Secondly, in article 77, the laying of stress on loss of service amounts to lending prominence to an aspect that is totally out of tune with the views of society. No right think- ing member of society seeking conipensation for seduction would attribute any relevance to the economic factor represented by "loss of service" of the female'.

37.32, 111 this situation. the present wording of article 77 needs change. as it accentuates an unjust rule of the common law whi:;l1. even it' it is applicable at all, should not be given prominence in the law of limitation. We would. there- fore, re-word the article as one applicable to a suit in!' compensation for seduc- tion, thereby removing the objectionable part. By way of anticipating a possible objection to such an amendment. we may state that if. as a matter of substantive law, any High Court still takes the view that an action for seduction on the com- mon law pattern is still permissible in India, there will not be any casus nmissus in the Limitation Act. If article 77 as sought to be amended is regarded as in- applicable to such an action, the residuary article would still apply.

37.33. In the light of the above discussion, we recommend that article 77 should be revised as under: --~ "77. For compensation for seduction. One year.

When the sedzmio/z occurs."

37.34. This takes us to aritcle 78. Article 78 prescribes a period of limita- tion of one year "for compensation for inducing a person to break a contract with the plaintiff". The period is computed from the date of the breach. The article is identical with article 27 oi the Acts of 1908 and 1877, and with article 28 of the Act of 187-1.

In "this article also, having regard totthe position in substantive law, there appears to be need for a small change. This need arises from the fact that the concept of inducement of breach of contract as an actionable wrong is, as a matter of substantive law, subject to certain limitations. We deal with this aspect in the succeeding paragraphs.

37.35. inducement of breach of contract is actionable. as a tort if certain conditions are satisﬁed. But this is subject to two important limitations. In the ﬁrst place, by legislation, certain inroads have been made into the common law doctrine, legalising conduct that would otherwise be tortous under this head. Secondly, in some cases, even at common law, special circumstances supply a justiﬁcation for conduct that would be otherwise actionable under this head. These circumstances constitute an exception to the general rule that the direct inducement of breach of contract is a tort, and that where "the intervener, assum- ing he knows of the contract and acts with the aim and object of procuring its breach (he) will be liable if he directly intervenes by persuading A to break it?

To this general rule, however, there arise exceptions in speciﬁc circums-

tances.3> It is enough to cite the classic test of what constitute the essential ingre- dients of this tort as formulated by Romer, L.J.* namely, " .... ..regard might be had to the nature of the contract broken: the position of the parties to the con- tract; the grounds for the breach; the means employed to procure the brcaclI; 'Para 37.27 (supra)_ 9Thomson v. Deakin (1952) Ch..646. (I7!) (Lord Evershed).

3'Smi!hI'e.\' V. National Asmcizztft»/1 of ()perativc P/rIstert«'rs, (l90l)il 'South lVale.\- Miners Federal/mi. v. Glamnrgmi Coal Ltd. (1903) ll K.B, 310, 337.

2 K.B. 545.

Need for change.

Recommenda-

tron.

Article 78.

The tort and l'[S_ limitations.

173 174

Cases where inducing breach of . contract is not wrongful.

Recommenda-

tron.

, Articles 79 and so.

89111 REPORT 01: LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37~Articles 72 to 91----Suits relating to tort.) the relation of the person procuring the breach to the person who breaks the con- tract; and .......... ..to the object of the person in procuring the breach."

37.36. ft is not every inducement of breach of contract that is actionable. Sometimes, the justification constituting a legal defence is said to be analogoul to privilege in defamation.'-1 At other times, it is described as "acting in exercise of equal or superior right? It is the latter test that has been more current as the accepted one in recent years.'-" The more serious difficulties have arisen in regard to bonafidc advice given to a person to withdraw from a contract, particularly in the performance of a duty to give the advice that is given to a person to with-

'draw from a contract. This situation arises particularly in the case of advice to terminate a contract of marriage which the person giving the advice regards as harmful to the interests of the parties concerned." Similarly, in modern times, many cases concern the use of unlawful means such as violence. restrictions on liberty, intimidation. defamation and so on.' The substantive law on the subject has thus developed extensively, and it is desirable that article 78 should be re- vised in the light thereof. A 37.37. Having regard to the above considerations, it appears to us that the language of the article is capable of improvement, so as to make it conform to the substantive law without, at the same time, making it too cumbersome. We, therefore, recommend that article 78, first column. should be revised to read as under : ---- « "For compensation for wrong- (Rest of the columns as at present). fully inducing a person to break.

a contract with the plaintiff."

37.38. (:1) Article 79 reads as under :--

"For compensation for an illegal, One The date of the distress."

irregular excessive distress. year.

It is identical with article 28 of the Acts of 1908 and 1877.

Article 29 of the Act of l87l was as under:

"For anillegal, irregular or cxces- One The date of the distress."

sive distress. ' year.

(bl Article 80 reads as (1nder:--

"For compensation" for wrongful One The date of the seizure."

seizure of movable property under year.

legal process.

It is identical with article 29 of the Acts of 1908 and 1877.

Article 30 of the Act of 1871 was as under:

"For wrongful seizure of movable One The date of the seizure."

property under legal process. year.

'Cf. section 768, Restatement of Tort (Second) (1970).

"See note in (1902-1903) 16 Harvard law Rev. 299.

3Read V. Friendly society etc. (1902) 2 K.B. 96.

'Sayre, "Inducing breach of_contrac_t" (1923) 36 Harvard Law Rev. 663, 687, 696.

"Carpenter, "Interference with contract relations" (1928) 41 Harvard Law Rev. 728."

7]. D. Heydon, "Justification in international economic torts laws" (1970) 20 University Toronto Law Journal 139. 161. 163, 168 and 182.

7]. D. Heydon, "Justification in intentional economic torts law" (1970) 20 University of Toronto Law Journal 139, 161, 163, 168 and 182. ' 89TH REPORT or LAW' COMMN. or INDIA ON THE LIMITATION ACT, l963 (Chapter 37» -Articles 72 to 91~---Suits relating to tort.) V Articles 79 and 80 are taken together, since they represent one group of articles dealing with the subject to distraint of property under legal process or seizure by "extra-legal methods. The Law Commission' in its Report on the Act of 1908 had suggested their inclusion in one general article, dealing with torts, with a period of three years.

" .... ..there is no reason why they should not be brought under the general category of torts and the period of three years applied to them. The dates in column three coincide with the dates of accrual of the causes of action".

37.39. The expression 'legal process' occurring in article 80 had given rise to certain conﬂict. The Allahabad High Court" ruled that it included all processes issued under any law. In regard to the seizure of crops under tenancy law by the landlord. the High Court observed : ~--

g "In my opinion. a distraint effected under the local tenancy Act (No. II of \l90l) is a seizure of movable property under legal process. because it is done under the special provisions of the local act and subject to the due' observance of the procedure therein laid down."

A contrary view was taken by the Bombay High Court,' to the effect that the "legal process" envisaged by this article necessarily implied some process through the Court and accordingly a direction from the Collector, acting under the Bombay Land Revenue Code. was outside the scope of this article. Beamount CI. observed thus:---

"The learned Government Pleader has argued that the words 'under legal ii process' in article 29 means 'according to law is legal process'. In my opinion, that is not the meaning of the words. I think 'legal process' denotes proce- dure by some sort of Court, and the Collector acting under section 154. Bombay Land Revenue Code, is not acting as a creditor. He, as the officer entitled to recover arrears of land revenue, is given power to seize the de- faulter's goods. He is in a position analogous to that of a creditor who is given power under the contract to seize his debtor's goods, if his moneys are not paid. If legal process merely means process according to law, it seems to me that seizure under a valid contract would be just as much sei- zure according to law as seizure under aistatute. In my opinion, Article 29 applies to seizure under a process issued by a Court. Possibly a revenue Court may issue legal process, but in my view the Collector was not acting in any sense as a Court when he seized these goods."

_ However, in a later judgment of the Bombay High Court,' the meaning of the expression ''legal proceedings" was considered and the following observations made:~---

"It must be remembered in this context that the expression 'legal proceedings' is not synonymous with 'judicial proceedings'. Proceedings may be legal even if they are not judicial proceedings, if they are not authorised by law; 'and Mr. Palkhiwala, by his argument undoubtedly requires us to equate the expression 'legal proceedings' in S. 48 sub-section (2)(ii) with judicial pro- ceedings. for which. in our opinion. there is no warrant in law."

'Law Commission of India. 3rd Report. (Limitation Act. 1908), pages 44-45, para 118. 'Marrsmght. V. Ram Nath, A.I.R. 1924 All. 828. 'SIu'vrao Shsgiri v. Secretary of Stare, A.l.R. 1942 Bombay 300. Also see Paharf v_ Surat'. (1948) I.L.R. 27 Pat. 680. i 'Abdul Aziz v. State of Bombay A.I.R. 1958 Bombay 279, 282.

175

Expression "legal process"

in article 80.

I76 No change as to legal process.

Starting point-com-

ments (1908).

Suggestions considered.

Need for change in the law.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37---Artiéles 72 to 9I----Sm'ts relating to tort.) 37.40. It is likely that the expression "legal process' would also be held to encompass all processes issued under any law, as has been held by the Allahabad High Court.' As the matter has not been speciﬁcally raised after 1958 in report- ed cases, we would not recommend any amendment of the article on that score.

37.41. The starting point under this article requires some comments. When the draft Limitation Bill 1908 was circulated, Dr. H.S. Gaur made the_following comments also on the starting point of limitation : -

"At present, the starting point for Limitation is the date of attachment and not the release (Rcmmarain v. Umrao Singh, l.L.R. 29 All. 615). I submit that the starting point should be the release, not the date of attachment. In the view of the law, it may be that enquiry into the propriety of attachment may take a year or more and the party aggrieved may, in the meantime, lose its reniedy."-'~"

The opinion of Mr. Justice Banerji also dealt with the same diﬂiculty in these words:--» "Articles 29-30: In case of wrongful distress or seizure. limitation should be computed from the date of distress or seizure and where the distress or sei- zure continues. from the date of the termination of the distress or seizure. If property remains under wrongful distress or attachment it is diﬂicult for the plaintiff to assess his compensation until the property is released. The attachment may continue for a period exceeding one year. In such a case the owner of the property cannot. under the present law. get the compensa- tion to which he might be justly entitled. It is doubtful whether the attach- ment can be held to be a continuing wrong."

The Chief Justice of Bombay wanted to extend the scope of this article fur- ther, suggesting, as under:---- ~ "This might be extended to a prohibitory order.""

37.42. It is not clear from the ﬁle of the Act of 1908 as to why these sug- gestions were not accepted. We have however given some thought to the matter and ﬁnd considerable force in these suggestions. It is true that generally the person aggrieved would know about the wrongful attachment within a few days thereof, and can move the court or other authority issuing the process of attachment for relief. If the attaching authority takes only a few months to pass 'the ﬁnal order upholding the contentions of the petitioner, the latter would still have enough time left to file a civil suit for damages, as the prescribed period of limitation is one year.

37.43. However. considering the long duration of pendency of cases in courts and the time taken in their disposal, it is likely that the attaching authority may take a long time before objections regarding the attachment are decided. In such a case, a period of limitation starting from the attachment may cause serious hardship. Till the result of the objection ﬁled before the attaching authority is known, the civil court cannot decide the matter. It would rather be harsh to drive an aggrieved person to a civil court even before a cause of action has acc- rued in his favour. or at least before his claim can be effectively decided.

'Man Sing/I V. Ram Nath, A.l.R. 1924 All. 828.

3Dr. H. S. Gaur. Bar-at-Law. Raipur. Letter No. 2063/V. 4-5 dt. 19-12-1907 National Archives File 1908, Paper No. 2. page 9. _ 3Cf. Eng. Gim Molt V. Clzinese Merited Com. Bariking A.L.R. 1940 276 (F.B.).

'Mr. Justice Banerii. High Court of Judicature NW. Provinces letter No. 4021 dated 18th December. 1907 National Archives File 1908. Paper No. 4. page 'No. 8 '''Sir- Lawrence Jenkins. Chief Justice. Bombay High Court. 18-12-1907, National Archives File 1908, Paper No. 6, page 13.

letter No.' ' 2469 dated 89TH REPORT or LA\V COMMN. or INDIA ON 'IHE LIMITATION ACT, 1963 177 (Chapter 37~-----Articles 72 to 9I----Suits relating to tort.) \ 37.43. To obviate such hardships as well as to avoid a multiplicity of litiga- R°°°m'"°"d""

. -- . . . 3 tion, we recommend that the third column of article 79 should be rev1sed_as §','f'c,2§ 7'§_g0_ follows:' "The date of release of the distress."

Similarly, the third column of article 80 should be revised as under:---

"The date of release from the seizure."

37.44. Article 81 reads as under:---- Article 81 "81. By executors, administrators or One' The date of the death of the person representatives under the Legal year. wronged." Representatives' Suits Act, 1885.

.It is identical with article 20 of the Act of 1908. Article 20 of the Act of 1877 was as under:

."20. By executors, administrators or One' The date of the death of the person representatives under Act No. Xll year." wronged." of 1855 (to enable executors, ad- ' ministrators, or representatives _to sue and be sued for certain wrongs).

It was identical with article 12 of the Act of l87l.

(b) Article 82 reads as under:--

"82. By executors, administrators or Two The date of the death of the person representatives under the Indian years killed." Fatal Accidents Act, 1855.

It is identical with article 21 of the Act of l908 except that the period in that Act was one year.

In the Act of 1877, article 21 was as under:--

"21. By"executors,"'administrators or One The date of the death of the person representatives under Act No; year. killed."

XIII of 1855 (to provide compen-

sation to families for loss occa-

sioned by the death of a person caused by actionable wrong) Article 13 of the Act of l87l was in identical terms.

(c) 'Article83 reads' as under :~ "83. Under the legal Representatives' Two When the wrong complained of' Suits Act, 1855 against an execu- years. is done." tor, an administrator or any other representative.

Articles 33 , 34 and 35 of the Act of 1908 were as under:----

"33. Under the Legal Representatives' Two When the wrong complained of is Suits Act, 1855, against an execu- years. done."

tor.

"34. Under the same Act against an Two When the wrong complained of is administrator. years. done.

'Compare articles 73 , 74 and 90 and see Manga v. Changa Mal A.I.R. 1925 All. 1311.

24-14 M of I.J&CA/ND/83 178 Law com-

mission Report-

point con-

cerning survival

-of cause of action on death.

History.

Law Commis-

Iron Report-

point concern-

ing limitation.

35. "33. Under Act No. XII of l855 (to Two 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION AC1', 1963 (Chapter 37----~Articles 72 to 9I----SrIits relating to fort.) When the wrong complained of is done."

Under the same Act against any Two other representative. years.

Article 33 of the Act of 1877 was as under:----

When the wrong complained of is enable executors, administrators, done."

or representatives to sue and to be sued for certain wrongs) against an executor, administrator. or other representative.

Article 39 of the Act of 1871 was in identical terms.

years.

37.45. The,Law Commission' in its Report on the Act of 1908, while consi-

dering the scheme of the relevant Act, observed as under:~--

Act of 1908.

81 it is one year.

two years (suits under the Fatal Accidents Act, 1855).

"The maxim of English Law "actio personalis moritur cum persona" has been modiﬁed in India by various Acts. The Fatal Accidents Act provides that in the case of death of a person injured by a wrongful act, neglect or default, a right to 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 representa- tive of the deceased person. Under the Legal Representatives' Suits Act, XII of 1855, the executor, administrator or representative of any deceased person has been given a right to bring a suit for a wrong committed in the life-time of such person which occasioned pecuniary loss to his estate, provi- ded the suit was in respect of a wrong committed within one year before the death. Death will not abate any cause of action relating to loss of damage to property. The damages recovered form part of the estate of the deceased." A suit may be maintained against the executor, administrator or representative ofthe 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 306 of the Indian Succession Act provides that the right to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his death survives to' and against his executor, administrator or representative. But an exception is made in respect of a cause of action based on defamation, assault as "deﬁned in the Indian Penal Code, or other personal injury not causing the death of the party. 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 defamationior seduction 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 exceptions existing under the Indian Law and the English law."

37.46. Article 83 of the Act of 1963 replaces articles 33 , 34, and 35 of the The period under this article is two years, whereas under article In article 82. the period of one year has been increased to 37.47. The Law Commission" in its Report on the Act of 1908, observed as under : -

114-115.

'Law Commission of _ _ India, 3rd Report (Limitation Act 1908), page 41, para 112.

"Law Commission of India, 3rd Report (Limitation Act 1908), pages 42-45, para 113.

89TH REPORT or LAW COMMN. or INDIA on TH}: LIMYIATILN ACT, 1963 179 (Chapter 37----Articles 72 to 91--Suits relating to tort.) "ll3. Article 20 relates to a suit filed by a legal representative for torts causing pecuniary loss to the estate, while article 21 relates to a suit ﬁled by a legal representative for damages ior death, which has to be a representative action. Theother group of Articles 33 , 34 and 35 relate to suits against the legal representatives. Under articles 20 and Zl, the date of death of the person is taken as the starting point of limitation. Under the Fatal 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 depen- dants. The suit under the Legal Representatives' Suits Act is restricted to wrongs which occasion pecuniary loss to the estate of the deceased and 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 defamation, assault or per- sonal injuries not causing the death of a party. The substantive law preven-

, ting the abatement of the cause of action is laid down by the said Acts. The cause of action under the Fatal Accidents Act is the death and time under Article 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 and 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 contemplated 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 contem- plated by section 306 of the Succession Act, as it was assumed that the pro- visions 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 executor, administrator or representative and the time for limita- tion may be made to commence with the accrual of the cause of action. If a period of three years from the accrual of the cause' of action is provided, no hardship will be caused to either party. In view of the proposed period of 3 years from the date of accrual of the cause of action the period of one year before death provided in the Legal Representatives' Suits Act will have to be abrogated. lt may be observed "here that instead of leaving the question of survival of the cause of action to be dealt with by three separate Acts, a consolidating amendment in an appropriate manner may be made in section 306 of the Indian Succession Act.

"I15. There is also a conﬂict of decisions under section 306 5'r"'t'1'l'e Indian Succession Act as to whether a right to an action for malicious prose- cution is one relating to personal injury not causing the death of the party and whether it survives. This conﬂict may be set at rest by speciﬁcally bringing within the exception to section 306 of that Act, actions for malicious prosecution if it is intended that the cause of action in respect of such wrongs should not survive the death of the person aggrieved."

37.48. There is a period of limitation of one year under all these articles, Joint com- except in the case of fatal accidents under article 82, whére it has been increased mime Report to two years in the Act of 1963 on the recommendation of the Joint Committee. The Joint Committee Report stated' thus:

'Joint Committee Report, (1963 Act).

180

Comment.

Causes of _ action surviv-

ing on death.

Reason for special provision.

Article 84.

89mm REPORT or LAW COMMN. or INDIA ON THE LIMIFATION ACT, 1963 (Chapter 37~Artic1e.r 72 to 91--~Su1'ts relating to tort.) "The Committee feels that the limitation of one year provided for suits under the Indian Fatal Accidents Act, 1855, is short and should be increased to two years."

37.49. The period of one year in earlier articles (corresponding to present articles 81 and 83) was commented upon by W.J. Money, Oﬂiciating Judge Maimansingh, in his old opinion of 187l,'as to be too short for the purpose in hand: ' "That, under Act XII of 1855, there was a limitation of two years in the case of actions of a certain kind against executors, & c. points out that delay in instituting actions of this class may often be unavoidable, owing to the dilﬁculty of obtaining full information, and urges that it is not apparent.

therefore, why the period of limitation should be reduced to one year. He submits whether in such cases it would not be more for the public interest that the limitation should be ﬁxed at two years in the cases of actions both by and against executors, such limitation being in respect of wrong committed within one year of the death of the person, and to be calculated from the date of decease, and not from thecommission of the wrong?"

37.50. So much as regards matters of primarily historical interest. A ques- tion that may need to be looked into is this. Under section 306 of the Indian Succession Act, the right to prosecute or defend an action or proceeding in favour of or against a person at the time of his death survives to, and against, his executors, administrators or representatives. It seems desirable to refer to the impact of this provision on the law of limitation. In contrast with the gene- ral position, the starting point mentioned in article 81 is the date of death of the person wronged, and not the date of commission of the wrong. In other words, though the suit is in respect of a wrong committed in the life-time of a person, time is made to run from the date of the death, and the running of time does not synchronise with time with the accrual of the cause of action.

37.51. The reason why this special provision was made might be that the wronged person, when alive, might not have found time to take legal steps, and if the starting point is counted immediately from the date of commission of the wrong, then the prescribed period may, in many cases, terminate very soon while the executors, administrators or representatives are still taking time to settle down and to takestock of the situation.

In this context we have considered the question whether the enactment of the Indian Succession Act (which is not referred to in articles 81 and 83) had any impact on the articles under consideration. It appears that this question can, if necessary, be more conveniently considered when the Succession Act is itself taken up for review by the Law Commission."

37.52. This takes us to article 84, which reads as under:----

"84. Against one who, liaving a right Two . When the perversion ﬁrst becomes to use property 'for specific pur- years. known to the person injured there- poses, perverts it to other pur- by."

poses.

It is identical with article 32 of the Acts of 1908 and 1877.

'0ﬁ'1ciating Junior Secretary, Government of Bengal letter No, 416 dated 2nd Feb- ruary, 1871, National Archives File 1871, Paper No. 5. page 14.

"Articles 81 and 83 to be considered when the Indian Succession Act, 1925, is taken up for review. _ ~

"38. Against one who. having a right Two "SS. For compensation for obstruct- Three "37. For obstructing a way or water- Two "86. For compensation for diverting Three "32. For diverting a watercourse.

89TH REPORT OF LAW COMMN. or INDIA ON rm: LIMITATION ACT, 1963 (Chapter 37--~Artic!es 72 to 91----Suits relating to tort.) Article 38 of the Act of 1871 was as underzw The time of the perversion."

to use property for speciﬁc pur-- years.

poses, perverts it to other pur-

poses.

37.53(a) Article 85 is as under :--

The date of the obstruction."

ing a way or a watercourse. years.

It is identical with article 37 of the Acts of 1908 and 1877.

In the Act 1871, Article 37 was as under :~--

T he date of the obstruction."

course. years.

(b) Article 86 reads as under 2% The date of the diversion."

watercourse. years.

It is identical with article 38 of the Acts of 1908 and 1877. Article 32 of the Act of 1871 was as under:----

Two The date of the diversion"

years.

37.54. The starting point of limitation under these two articles of the obstruction or the date of the diversion, as the case may be. One learned writer has commented adversely on this point : ~ "The starting point of limitation is the date of the obstruction. If obstruc- tion to way or water--course is, as has been recognised, a eorztinuing wrong, it is rather diﬂicult to reconcile it with the third column which provides that the starting points of limitation is the date of the obstruction and not the

- date of the cessation or removal of the obstruction. It is noteworthy that articles 53 , 73 , 74 and 90 do provide for commencement of limitation from the date of the cessation of the branch of contract or the wrong, as the case may be. The point is, therefore, not free from diﬂiculty, due perhaps to illogical drafting?"

The above quoted passage referred to a single bench decision from Madhya Pradesh. wherein a suit had been ﬁled to recover mesnez proﬁts from a tres- passer, wrongfully occupying a house, Shri Dayal, J. observed in that ease:--~ "The time begins to run from the "date of tresspass" mentioned in the article which means every date on which the tresspass continues and is not restricted to the date on which tresspass commenced. A suit will be within time for the entire period of tresspass which falls within three years immediately preceding the suit, but not beyond three years."

37.55. We have given thought to the matter. However, if one treats the No change obstruction as a continuing wrong, tion of the wrong the starting point. The practical result would not be different from what it is now.

it would have the effect of making the cessa-

No change is, therefore, recommended.

'U. N. Mitra's Law of Limitation and Prescription (9th Edition), page 1801.

"Antoolal v. Chitarmal, (1964) M.P_L.J. (Notes) 106.

Articles 85 and 86.

J' point of limitation.

needed.

181 182

Article 87.

No change needed.

Article 88.

Case law on Act of 1871 as to "dama-

gcsu.

View of Dr. Stokes.

Period of limitation.

391"!-I REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37--~Articles 72 to 91---Suits relating to tort.) 37.56. Article 87 reads as under :-

"87. For compensation for t-resspass __ Three The date of the tresspass."

upon immovable property. years.

It is'identical with article 39 of the Acts of 1908 and 1877. In the Act of 1871, article 43 was as under:----

Three When the tresspass takes place."

"43. For tresspass upon immovable ' years.

property.

By the Act of 1877, the words "for compensation" were added in the first column (before the words "For tresspass upon immovable property"). This addition clariﬁed the position that the article is applicable only to suits for' damages, and not to suits for recovery of possession.

37.57. As there is no controversy under this article, we do not recommend any change.

Q 37.58. Article 88 reads as under :---

"88. For compensation for infringing Three The date of the infringement."

privilege.

It is identical with article 40 of the Acts of 1908 and 1877. In the Act of 1871, article 11 was as under:--

"l1. For damages for infringing copy- One The date of the infringemen ."

right or any other exclusive pri- year.

vilege.

37.59. The Calcutta High Court,' dilating upon the word "damages" in the Act of 1871, observed as under:----

"In my opinion article 11 of schedule (ii) embraces any suit or action brought under section 22 of the Act XV of 1859, and there was no intention of drawing any distinction between a suit framed as an action for damages, and one framed as a suit for an account. The taking of an account of proﬁts is 'only a mode of compensating an inventor for the infringement of his pri- vilege other than by an assessment of damages, and it seems unreasonable that if the period of limitation is one year in the one case, it should .be six years in the others".

37.59. This view was also favoured by Dr. Stockes, in the following words:----- ' e "The article should be extended expressly to suits for an account of the proﬁts obtained by infringement?" » Accordingly, in the Act of 1877, the word 'damages' was replaced by the word 'compensation'. ' 37.60. The present period of limitation under article 88 is three years. Chief Justice Sir Richard Garth and the then Secretary, Legislative Department had made certain comments on article 11 of the Act of 1871 (which had ﬁxed a period of one year).

'Kinmond v. Jackson, (1877) I.L.R. 3 Cal. 17, 19.

"Stokes, The Anglo-Indian Codes, Vol. 2 page 981.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37~--ArticIes 72 to 91~Suits relating to tort.) "By clause 11, one year only is ﬁxed as the period of limitation in case of infringement of copyright. This, certainly, seems an unreasonably short time. It must be remembered that infringements of copyright are from their very nature frequently, indeed generally, not discovered until long after the infringement has occurred. It is often the work of months, if not years, to make a book or a piece of music (unless it is of the very striking charac- ter) well known to the public; and in the greatest majority of cases, if such book or piece of music is an infringement of some author's copyright the author might probably not hear of the infringement until some time after it had taken place. This is, therefore, one of those instances, as it seems to me, in which it would be right to allow a plaintiff a much longer period of limitation."

And again observed 2* "Clause 11--~--The limitation, I think should be three years instead of one?"

Mr. J. H. Nelson stated:----- ' "Article 39----Literary piracy is theft; I would make the starting point the discovery of infringement?"

37.61. These views were endorsed by the Secretary, in the following note :--

Legislative Department, "No. 11----Infringement of copyright-The Chief Justice objects that the period of one year is too short. So it is, but it was the period prescribed by Act XIV of 1859, section 1, clause 2, and in framing Act IX of 1871, the old periods were, for obvious reasons, kept when possible." "I think we should lengthen the period if we alter the law at al .'"

37.62. Thus, the period of one year in the Act of 1871 and Draft Limita- Ea;-11¢; tion Bill, 1877 was changed in 1877 to three years. The Report' of the Law R°P°" °f . . . . . h L Commission on the Act of 1908 did not suggest any change in this regard. tc§m,$:sgon_ 37.63. There is a defect in the third column of the article under considera- Amendment tion. We think that it would not be reasonable to allow time to run against a zfmfgférds person, when he does not know that any of his rights have been infringed. It is point, and also necessary to widen this article so as to add, in the first column, at the end, 315° f°' . . . . . . . adding the words "or for restraining such infringement". The object IS to cover a suit inte11ecma1 for injunction. P'°P°"Y and injunction.

As to the meaning of the words "exclusive privilege" occurring in article 88, some comment seems to be in order, because these words are not very precise. We are of the opinion that in order to introduce a modicum of precision in this article, right to "Intellectual Property" should also be mentioned. alongwith "copyright".

' 'Sir Richard Garth, Demi-Oﬁicial Letter dated 8th March. 1876 to Arthur Hobhouse, National Archives File 1877, Paper No. 1,, page 2, 'Sir Richard Garth, Demi-Ofﬁcial letter dated 24th July E876 National Archives File 1877, Paper No. 1, page 3.

'J. H. Nelson, District Judge, Cuddapah, letter No. '34 dated 2nd April 1877 National Archives File 1877, Paper No. 25, page 8.

'Note by Arthur Hobhouse. Secretary, Legislative Department on Sir Richard Garth':

remarks. Natio1_1al_ Archives 1877, paper No. 1, page 5. . ' 5I.aW Commission of India. 3rd Report (Limitation Act, 1908). page 45, para 1.

183 184

Recommenda-

~ tion.

Article 89.

No change needed.

Article .90.

Need for amendment to cover wrongful attachment.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 37--Articles 72 to 91-----Suits relating to tort.) 37.64. To make the discussion concrete, we recommend the following re-

draft of article 88, so as to cover the points made above':

Three years.

"88. For compensation for infringing copyright or right to other intellec-

tual property, or any other exclu-

sive privilege, or for restraining sue/2 infringement.

When the infringement first becomes known to the plaintiff."

37.65. We now proceed to article 89, which reads as under:--

Three years.

"89. To restrain waste. When the waste begins."

It is identical with article 41 of the Acts of 1908 and 1877.

There was no comparable provision in the Act of 1877.

37.66. In the absence of practical difliculties, we see no reason to disturb the present article.

37.67. Article 90 reads as under :--

"90. For compensation for injury cau- Three sed by an injunction wrongfully years.

obtained.

It is identical with article 42 of the Acts of 1908 and 1877. In the Act of 1871, article 86 reads as under :--

When the injunction ceases."

"86. For compensation for damage Three caused by an injunction wrong- years.

fully obtained. ' When the injunction ceases."

When the draft of the Act of 1908 was circulated for comments, ajDistrict Judge suggested that attachment should be brought within the scope of those provisions. His suggestion was as followsr--

"Article 41--After the word 'an', I would insertz 'attachment' "

However, this suggestion does not seem to have been accepted.

37.68. We have given some thought to the matter. 'In our view, there is a case for adding in article 90 a suit for compensation for wrongful attachment. -

No doubt, as a summary remedy, section 95 of the Code of Civil Procedure, 1908 provides for the grant of compensation for arrest before judgment or attach- ment before judgment or issue of a temporary injunction, but this does not, bar a regular suit for compensation for such wrongful act3 arrest, attachment or injunc- tion. At present, it would appear that wrongful attachment is not a continuing wrong'. The article relating to compensation for statutory acts may not apply to attachment. As to attachment before judgment, old article 29 of the Act of 1908 (relating to wrongful seizure) seems to have been applied', under the Act of 1908. However, it is desirable to make article 90 comprehensive, and, for this purpose, to cover an attachment wrongfully obtained.

1Paragraph 37.63 supra.

'Dewan Bahadur S. Gopalacharia Avargal, District Judge, Guntur, Letter dated 30th December, 1907. National Archives File 1908. Paper No. 11. 3Harkumur V. Jagatbandliu. A.I.R. 1927 Cal. 247. 'Pannaji v. Firm Senaii, (1930) I.L.R. 53 Mad. 621.

5YelIammal V. Ayyappa Naick (1914) I.L.R. 38 Mad. 972. (Scope of article 29 of the Act of 1908 fully discussed). , No. 2155 89TH REPORT or L,\\\' (7()M\lN. or INDIA ON THE I_l\lITATI()N ACT. 1963 135 (Cliuplw -xli'tir(('.s' 72 to 9/: Suits re.'(rfiJtg (0 tori.) 37.69. Accordingly. [we recommend that article 90 should be revised as [l$;ommcnia- under:------ ' "

"90. For compensation for injury cau- Three When the injunction or nitric/intent sed by an injunction or arim-Izmc.=n years. ceases."

wrongfully obtained.

[One could even add arrest but for the fact that certain speciﬁc articles cxi it on the subjects] 37.70. Article 91 reads as under:-----v « Article 91-

"9l. (a) For coinpeitsation for wrong-- 'i'hrcc When the ])crsott having the right fully taking or detaining any years. to the pJ~'.'\'C'i-°.l0]", of the PT0P°TtY specific movable property first lcrirns in whose possession it lost, or acquired by theft. or is.

dishonest misappropriation or conversion.

(hi Forcompenszition l"oi'wi'oiag- 'i'lii'cc When the pralpcrty is xvioi-igltilly fully taking or injuring or ycztiis. taken or injiircd. or when the dc- wrongfully detc-.ii~_ing any taii~.ea"s possession bccotncs un- othcr speciﬁc movable pro- l:iwFu'i."

pcrty.

It COI'l'cSp0I1tl.\ to article 48 am! 49' of the Acts of I908 am! I577.

In the Act of 1871. six articles covered the subject matter. viz. articles 48 , 47. 35, 34, 33, and 26, with varying periods. lt is unnecessary to quote them for the present 'purpose, since they do not throw particular light on many important ingredients of the present article. ln,l877 and 1908, all these articles were brought under two articles. and a uniform period of limitation of 3 years was provided. The Law Commission in its Report' on the Act of 1908 recommen~ ded a different arrangement of the articles, but that recommendation has not been accepted.

37.71. The expression speciﬁc movable property" occurring in the article Case law as renders relevant a discussion' of two cases of application of the article to money to money ~, in specie (as against simple money claims). The first case is an Allahabad one.m Spam' in which a company had instructed its bahkcrs to make payment of excise duty amounting to Rs. 50,000 in the sub--trcasury and got the challan duly stamped and signed by the accountant and the treasurer. The amount paid was, however. defalcated by the treasury ollicials. and was not credited to the account of the Collector of Central Excise. As a result, the company had to make payment of the excise duty for the second time. The company then ﬁled a-suit for re- covery of the money from the State Government. The Allahabad High Court.

inter alia, heldi that thesuit was neither for certain "speciﬁc movable property"

nor for the return of particular coins or currency notes (which the plaintiff had deposited) and, therefore. articles 48 and 49 of the Act of l908 did not apply to the case. Holding that the suit was based on the liability of the Government for the misconduct of its servants. the High Court applied the residuary article 120 of the Act of 1908, which gave a longer period of six years to the plaintiff.

37.72. In the second case," which is from Rajasthan, a person had deposited money with the municipal council for the construction of a septic tank and soak- pit for the disposal of waste water. On the failure of the Municipality to carry 'Law Commission of India, 3rd Report (Limitation Act 1908) page 45. para 121 and page 83. articles 1.2.6. ' 3StrIIe of UP. V. Hindustan Lever [_.td.. A.l.R. 1972 All. 480.

3Chandrabhan Bunsilal V. Bikmier Mzrnicipulity, A.I.R. 1975 Raj. 35.

. 25-14 M of LJ&CA/ND/83 186 No change needed.

Article 922.

89TH REPORT or LAW COMMN. OF INDIA ON THE LIMITATION ACT, l963 (Chapter 37--~ArtI'cles 72 to 0/: Suits relating to tort. 5'/raptor 38 Aritr-/cs 92 to 96:

Suits relating to Trusts and Trust I'ropert,I'.) out the work, the plaintiff demanded the money from the Municipal Council, which refused the payment. The High Court observed that under article 9l(b), a suit for compensation for wrongfully detaining the movable property has to be instituted within three years from the date on which the detainee's possession became unlawful. The suit, ﬁled within three years from the date when the Municipality refused to adjust the amount towards house tax, was in time.

The judgment has not pin--pointed the exact article applicable. Articles 9l(b) and 55 (in addition to the residuary article H3) of the Act of 1963 have been taken as the articles possibly of relevance.

37.73. In this state of the case-law--~which does not rule out the residuary article--we do not consider it necessary to amend" the wording of article 91.

CHAPTER 33 ARTICLES 92 TO 96 : SUITS RELATING T O TRUSTS AND TRUST PROPERTY 38.1. Article 92 reads as under :

"92. To recover possession of iInmo- Twelve When the transfer becomes known vable property conveyed or be- years. to the plaintiff."

queathefl in trust and afterwards » ' transferred by the trustee for a valuable consideration.

The article corresponds to a part of article I34 of the earlier Acts. In the earlier Acts, the relevant articles were as under:

Article 134 of the Act of 1908.

134. To recover possession of immo-- Twelve When the transfer becomes known vable property conveyed or be- years.

queathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration.

to the plaintiff. [Before 1929, the third column read, "the date of the transfer]"

Article 134 of the enactment of 1877.

134. To recover possession of inImo- Twelve" The date of the purchase.

vable property conveyed or be- years. ' qucathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee for a valuable consideration.

Article 134 of the Act of 1871.

134. To recover possession of immo-- Twelve The date of the purchase. vable property conveyed in trust years.

or mortgaged and afterwards pur-

chased from the trustee or mort-

gagee in good faith and for value.

The amendments effected by the 1963 Act are in consonance with the recommendations of the Law Commission'.

'Law Commission of India, 3rd Report (Limitation Act, 1908), paragraphs 122-130.

891'H REPORT or LAW comm. oi INDIA ON THE LIMITATION ACT, 1963 187 (Chapter 38-~ArricIes 92 /0 96: Suits Relating to Trusts and Trust Property.) 38.2. In a Calcutta case' decided with reference to article 134 of the Act of Successor 1908 as it stood before I929, a trustee executed on 8th February, 1910 a lease mm°°' of the trust property in derogation of the trust. and subsequently appointed a successor trustee who ﬁled a suit to set aside thelease on 21st January, 19-32.

The successor to the original trustee was appointed only on 30th September, 1931. However, relying on section 2(8) of the Limitation Act, 1908, the court held the successor trustee to be within the deﬁnition of the word "plaintiff" and held that the suit was barred by time. With respect, this overlooks the context. The time should now begin to run only from the date of the knowledge of the succeeding trustee who brings the suit'. 1 I 38.3. No other points requiring discussion from the point of view of possible Nodclcllanize need for amendment in the article have come to our notice. In this position, no me 6 ' amendment of the article is called for.

38.4. Article 93 reads as under:--- _A"i°1€ 93- "93. To recover possession of movable Three When the transfer becomes known property conveyed or bequeathed years. to the plaintiff.''' in trust and afterwards transferred by the trustee for a valuable cor.-

sideration.

The parallel 'provisions may be found in afticle 48A of the Act 1968 and in article 133 of the Act of 1877 and 1871. They were as under:----

Act of 1908 "48A.To recover movable property Three When the sale becomes known to . conveyed or bequeathed in trust, years. the plaintiff."

deposited or pawned, and after-

ward b ought from the trustee, de-

pository or pawnee for a valuable consideration.

Act of 1877 ''I33. To recover movable- property Twelve The date of 'the purchase."

conveyed or bequeathed in trust, years.

deposited or pawned, and after-

wards bought from the trustee, depository or pawnee for a valu-

able consideration.

Act of l87l

133. To recover movable property con- Twelve "I he date of the purchase. veyed in trust, deposited or pawn- years.

- ed and afterwards bought from the trustee, dep Jsitory or pawnee, in good faith and for value.

Article 48A in the Act of i908 was inserted by Act 1 of 1929. It corres- ponded to the old article 133 which was repealed, with the third column chan-

The starting point of limitation was changed from "the date of purchase"

ged. .

Certain verbal changes were to "when the sale becomes known to the plaintiff".

made in 1963, when the Act was re-en&_1cted"'.

""""'""" V" T"""""""' G""&';i;i'..'I~',:'.";'.;.'.-'.'.;;'.'3.3.'. ?22..Eak.1'if'1%i% Mad. 920.

2 v[d~J 'd &'C..M. .

GOA" ms amna USS 0 V 134 which now forms part. of article 61(b)].

23. D ' ' th t part of article _ _ _ 9 3L[:1v::clCS<l)(i'ii1m(islsiona of India, 3rd Report (Limitation Act, 1908), para 122.

188

No change needed.

Article ')4 and 95.

State law:

as to public trusts.

Recommenda -

iron as to articles 94 to 90.

89111 RLi|'()Rl" or L\W CUM\tN. or INDIA UN THL. Ll»\1l'l'All()N ,-xcij. 1963 a (C/I{(])l('I' 38 .'li'lr'c'/cs' ')3 In 9.6: Sitils Re/rm'Izg Iii 'I'ru.\'/s am! 'i'i'u.s'l 1'rupcr(y.) 38.5. No diﬁicultics have uriscii under this article as enacted 1964, and no change appears necessary in the article.

A 38.6. Article 94 reads as under:------

"94. To set aside a transfer ofiimmo- Twelve _ When the transfer becoiitcs known vablc property comprised in a years. ' to the plaiii_tiﬁ'."

Hindu, Muslim or Buddhist re-

_ ligious or charitable endowment.

made by a manager thereof for a valuable consideration.

In the Act of 1908, the corresponding provision was article 134A. which was introduced by Act 1 of 1929. it was identical with present article 94.

(b) Article 95 reads as under:~ "95. To setasideatransfer of movable Three When the transfer becomax known property comprised in a Hindu. years. to the pla'intill"." Muslim or Buddhist'. religious or charitable endowment. made by a manager thereof for a valuable .

consideration.

The corresponding article in the Act of 1908 was article 48B. which was introduced for the first time by Act I of 1929. That article was as follows:~ When the sale becomes known to the plaintiif."

"48B. To set aside sale' of movable Three property comprised in a Hindu. years.

Muhammadan or Buddhist reli-

gious or charitable endowment.

made by a manager thereof for a valuable consideration.

38.7. Several States liayc enacted their own laws to regulate and make better provision for the administration of public trusts. These enactments contain, inter alia, provisions relating to suits concerning public trusts. Thus, under sec- tion SO of the Bombay Public Trusts Act. W50 permission of the Charity Coin- missioner is necessary for the institution of a suit. Then. by section 75-C of the Madras Hindu Religious and Charitable Endowments Act. l959 the right of suit has been speciﬁcally granted to any trustee or any person having an interest in the trust property.

38.8. Reverting to the articles in the Limitation Act, article 94-95 of the Limitation Act have not given rise to textual controversies. But we see no reason why articles 94 to 90 should not apply to religious or charitable endow- ments created by persons professing the Sikh or Jain faith. The legal doctrines and rules applicable to these endowments are not substantially dillcrent from those applicable to Hindus'.

We tl1crel'o1'e rcconimcnrl that articles 94 to 90 should he cxtcmletl to Sikh and Jain endowments also.

'compare & recommendation as to section 10, supra, I 891" l{l;'l".)l{l' UT LA\W CU?\l\l.\'. OF INDIA ON iltlll Lliwill.-\'llf)N -'\Cl'.

[Ci'iu;n'¢-r 38 ./ii':/'r/cs" ')2 in 96: Sitifs 1{<'/citing to :(.l.£[ls.{'\' mm' Trmt 1'm[Jc!'»')«'.) 38.9. Article ')6 reads as untlet'.~~ Article 90.

"96. Bytlieinanagerofzi Hindu. .'.-lu-:- Twelve The date oi' death. rcsignaiion or lim or Buddhist religious or cl1'.u'§-- years. rcm.oval ol' the tra.n=st"ci'or or the table cndowiitent to recover op _1s- date of appaintnient of the plain- session of movable or imnlovabie tiff as mzwagtr of the cizdc-wn1«::nt. property comprised inthe endow- whichever is latter." ' men?' which has been tro.nsfcrrcd by :1 previous ntzmager for 3. valu-

tthic co:tr;ic_iera.tion.

The corresponding provisions in the Act of E908 were articles i348 and E340 These articles read as unrlerzm Two l we years.

The death. rcsignatioi*~. or l'.i!1'\1\i3li of the trai1sl"ero r.

"l34B. By th niztnager of a. Hindu.

;\/lultamrnadan or Buddhist reli-

gious or charitable endowment to recover possession of immova-

ble property comprised in the endowment which i'i£l.S been tra.;is~ ferred by at previous 1n2Lna.ger for a valuable consideration.

"l34C. By the inztnager of 3. Hindu. Twelve The death. resignation or rentox-nl Muliammadan or Buddhist religi- years. of the seller." . ous or Cilitritztbie endowment to recover possession of inovtthle property comprisetl in the endow-

ment which has been sold by a previous manager for a. valuable consideration.

38.10. Inthe Act. of 1908. these articles were inserted in 1929, resolving the 1115;."-_ eonﬂiet between two Privy Council rulings.'-'-' They have been consolidated In article 96 in the Act of 1963. with the added advantage given to the plaintiff -- as respects the computation of time. The Law Commission, in its Report on the Act of I908. took notice of the fact that an intcrrcgnum might arise between the removal of one manager and the :tppoin';ment of a 5llCL'C.':'5Dl', and the succes~ sor should not be luunslrulig front lilirg :1 suit. only be-muse of such interregnum.' Under the present Act, the successor can compute the running of time from the date of his appointment. At the same time. the right of a person interested who may not be the manager to challenge the alienation of a previous manager who is no longer in office has been retained, as otherwise such a person would be required to wait for the appointment of the successor iiianager which may unnecessarily be delayed'. ~ _ 38.11. The only Change required in article 96 is its extension -to Sikh t1iitlgw,.mnmd;,. Jain endowments, as alrcacly recommended by us' Whlil.' considering artieles"°"- 94-95.

'Vidyu Vm-mfri v. BuIiixumr'. A_LR. W22 P,C_ 123_ 'A bdul Ruliim V. NHl'G}'£lI! Dos, I.L.R. (I922) 50 Cal,' 329 (P.C.).

3Law Commission of India, 3rd Report (Limitation'Act, 1909). page 46 para I23, 'Articles 94-')5_ 'Para 38.8 supra.

189 190

Article 97.

Pre-cmplion laws. \ No change needed.

Article 98.

89111 l{I3P0l{'l' or LAW COMMN. or mom TIIE ON LlMl'l'A'l'.l()N Acr. l963 (C/rapier 39-----«Artz'c/e.\' 97 lo I /2: Suit: Relating to A{i.\'cC//tlI1L'(Il(.S' JlIuticr.s'.) CHAPTER 39 ARTICLES 97 T0 [I2 : SUITS RELATING TO MISCELLANEOUS MATTERS 39.1. Article 97 reads as under :--

When the purchaser takes under the sale sought to be impeached.

physical possession of the whole or part of the property sold, or. where the subject matter of the sale does not admit of physical possession of the whole or part of the property. when the instrument of sale is registered."

"97. To enforce a right of pre-emption One whether the right is founded on year.

law or general usage or on special contract.

The corresponding article in the Limitation Acts of 1908, 1877 and 1871 was article 10, which in the respective Acts read as under : --

Act of 1908 "I0. To enforce a right of pre-emption One whether the right is founded on year.

law, or general usage. or or-. spe-

cial contract.

When the purchaser takes. under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered."

Act of 1877 Same as in the Act of l 908.

.AcI 0fI87l "l0. To enforce a right of preemption. One whether the right is founded on year.

law, or general usage. or on spe-

cial contract.

When the purchaser takes actual possession under the sale sought to be impeached."

39.2. Though the article recognises the right of prc-cmption in law as well as under general usage, most of the cases of pre-emption arose out of Acts passed by the State legislature in respect of agricultural land. However, many of the State laws granting a right of pre-cmption have now been amended, abolish- ing that right.

39.3. Though there has been some controversy regarding the date when possession could be deemed to have been taken under the sale, the matter is inte- grally connected with the substantive law. We do not therefore recommend any change in the article.

39.4. Article 98 reads as under :--

"98. By a person against. whom an One order referred to in rule 63 or in year.

rule 103 of Order XXI of the Code of Civil Procedure. _l908 or.a.n order under section 28 of the Presidency Small Cause Courts The date of the ﬁnal order."

89rH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 191 (C/mplcr .5') .'l/'tic/cs' 97 to /l.': Suits Relating to 1lli.s'cc//mtcous Matters.) Act, 188 2, has been made, to es-

tablish the right which he claims to the property compsised in the Order.

The corresponding articles in the Act of 1908 were 11 and 11A, which read as under:----

"ll. By a person, against whom any One The date of the order."

of the following orders has been year.

made to establish the right which he claims to the property comp-

prised in the order : « (1) Order under the Code ofCivil Procedure, 1908, on a claim preferred to, or an objection made to the attachment of, property attached in c.\'ccu--

tion ofzt decree;

(2) Order under section 28 ol' the Presidency Small Cause Courts Act, 1882.

"l IA. By a person against whom an One The date of the order."

order has been made under the year.

Code of Civil procedure, 1908, [1 pon an application by the holder of a decree for the possession of immovable property or by the pu-

rchaser of such property sold in execution of a < ecrcc, complain-

ing of resistance or obstruction to the delivery of possession there-

of, or upon an application by any person dispossessed of such pro-

perty in the delivery of possession thereof to the decree-holder or purchaser, to establish the right, which he claims to the present possession of the property com-

prised in the order.

Corresponding provision in the Act of 1877 was article 11, which we are not quoting. ' Corresponding article in the 1871 Act was article 15, which, again, we are not quoting. The reason is that the connected provisions have changed.

39.5.'The adjective 'ﬁnal', qualifying the word 'order' in the third column, did Starting not occur in article 11 of the 1908 Act. A controversy raged as to whether the 'l'°""' starting point of limitation should be taken as the date of the order of the execut-

ing court passed in proceedings under Order 21, rule 58. Code of Civil Procedure, 1908 or the date of the ﬁnal order of the revisional court (where the objector chose to challenge the order in revision). The Kcrala High Court,' in a Full Bench judg- ment, by majority, decided that 'limitation for a suit under Order 21, Rule 62, or 103, Code of Civil Procedure, runs from the date of the order of the executing court on the claim petition (under Order 21, rule 101,.Code of Civil Procedure in the instant case) and not from the date of the order on an infructuous application for revision thereof.' 1TI1ycattusari Church V. Sicilyamma. A.I.R. 1963 Ker. 137 (F.B.).

0.21, R. 58.

C.P.C. as amended in 1976.

Scheme of the aniemlecl Code.

Scope of article 98 now limited.

Change needed in article 98.

v 89rH REPORT or LAVV co.~1\/IN. or INDIA ON THE Ll1\llT.\Tl0N ACT. 1963 (C/zaplcr 39 A/'I/I/c.\' 97 to I12: Sir/'Is Re/(zting to /l/I/.S'('('//(I/'t'0ll.S' M11110/'s.) 39.6. The Kcrala Judgment. being a case arising out of the old Limitation Act. would not throw light upon the interpretation of the expression 'ﬁnal order' now occurring in the third column of article 98 of the 1963 Act. The use of the word 'ﬁnal' would now seem to shift the starting point of limitation from the date of the order of the executing court to the date of the order passed in revision, and an argument on this scope. as well as on the applicability of section 14 to such cases and the period available should not now arise. Moreover. as is elaborated below,' the scheme of the procedural provisions with which article 98 is linked has been radically revised in 1976. I 39.7. The very important amendment made in 1976 in the Code of Civil Pro- cedure, 1908, concerning Order 21, Rule. 58, deserves to be noticed at -this place. This amendment sustantially implements the recommendation of the Law Com- mission? in its Report on the Code.

39.8. Under the amended Code of Civil Procedure. there has been a drastic change in the procedure. the mode of approach and the method by which the court should arrive at a decision. when an application under Order 21, Rule 58 of the Code is ﬁled. Under the law before 1976. such an investigation into a claim or objection was summary in its nature. and was. in a very large number of c-u.w.<;. lia- ble to be set aside by a regular suit. The present law, after 1976, on the other hand. making a signiﬁcant departure in the method ofidisposals and adjudication of such claims and objections. contemplates a full enquiry into all questions. including questions of right. title and interest in the property. Its mandate is that the court inquiring into such a claim or objection shall determine all such questions. Except in the very limited number of cases mentioned in Order 21, Rule 58(5) there is a total embargo on a separate suit. Order 21, Rule 58(4) now provides that the order made in such adjudication shall have the same force and be subject to the same conditions as to appeal or otherwise. as a decree. Thus. the order passed in these proceedings is a substitute for a decision in an ordinary litigation resulting in a decree. The adjudication contemplated by amended Order 21. Rule 58 as amended is not summary. the intention being that it should be like a decision rendered in a regular -suit. and should result in an appealable decree. so that. in these very pro- ceedings. the court could ultimately decide and adjudicate all questions, including questions relating to right. title or interest in the property attached. which might arise directly or indirectly between the parties." 9 39.9. In other words. the scope of article 98 is now conﬁned to those very limited number of cases where in respect of claims or objections to an attachment, a suit can still be instituted or permitted under the Code of Civil Procedure (as amended in 1976). Once the ('laim ﬁled in execution proceedings is entertained, and adjudicated, the adjudication by the court has now been given the status of a "decree". Hence. the scope for ﬁling a suit to assert a claim in respect of the attachedjproperty is very limited after the amendment of 1976.

39.10. It is desirable to amend the zirticle in the light of the changed posi- tion as resulting from the amendment made in the Code of Civil Procedure. 1908. It is necessary that. in this article. the reference to the rules of --Order.2l C.P.C. should be made more precise. by framing it as a reference to Rule 58(5) of Order 21 of the Code. that being the only provision under which a suit can be ﬁled to challenge any attachment.

1See para 39.7 infra.

2Law Commission of India 54th Report (Code of Civil Procedure. 1908), Chapter 21.

3Southern Stec/met & Alloys Ltd. V. V.M. Steels, Madras, A.I.R. 1978 Mad. 270; l.I..R (1978) 3 Mad. 140; (1978) 1 M.L_J. 468.

8<)rn REPORT or Luv comm. or mom ON THE LIMITATION ACT, 1963 '-- 193 (C /zu/ilcr .)'9»~.»1I't1'c/cs 97 to //3: Suits Relating to M/'sec//u/zeo'is Matters.) 39.11. In the light of the above discussion. we recommend that article 98 RL'C<'m€"<lﬂ' should be revised so as to read as under:»--~ mm'

798. B)' :1 Person against wh«,~m an ' One The date of the ﬁnal order." crder rc;/é/'red to in sub-rule (5) Year.

of rule 58 of Order XXI in the First Schedule to the Code of Civil Procedure. I908 or an order under section 28 of the Presidency Small Cause Courts Act. I832. has been made. to establish the right which he claims to the property com-

prised in the order. where such a suit is /Jet'/iz1's.r/'b/c in In W. 39.12. This takes us to article 99. which reads as under :~-- ,-\.rtiele 99.

"99. To set aside a sale by a. civil or re- One When the sale ' . conﬁrmed or venue court or a sale for arrears of Year. would otlierwise have become ﬁnal Government revenue or for any and conclusive had no such suit demand recoverable as sucli been brought."

arrears.

Article 12 in the Act of 1908 read as under:-- ' "l2. To set aside any of the fol§o\vi:1g One When the safe is conﬁrme'd or sales : Year. would other-..vise have become

(a) sale in execution of a decree ' ﬁnal and eorzclusive had no such of a Civil Court; suit been brought."

(l)) sale in pursuance of a decree or order of a Collector or other oﬁicer of revenue:

(c) sale for arrears of Govern-

ment revenue. or for any demand recoverable as such arrears;

((1) sale of a patni taluq sold for current arrears of rent.

ExpIanation.--In this article. 'patni' includes any intermediate tenure sale- able for current arrears of rent."

Article 12 of the Act of 1877 was in the same terms. Article 14 in the 1871 Act was also in the same terms.

39.13. On the applicability of article 99 to a suit ﬁled by a Hindu son to Suits by have a court sale in execution of a decree against his father set aside. there exists Hindu son. a conﬂict of views. The first view is represented by a judgment of the Kerala High Court.' It was a suit brought by Hindu son, alleging that his share in the joint family properties was not liable to be sold in execution of a decree obtain- ed against his father and that the sale in execution was not binding on his share.

It was -held that the son was by the decree against the father precluded from questioning the existence of the debt on which that decree was obtained. and that it was open to him to challenge the decree and the execution proceedings on the ground that the original debt itself was non-existent or ﬁctitious. The court relied on a Madras judgment? for holding that if the son's interest is found not to have been sold or if the execution sale is void as against him. it is unnecessary to 'l.(!/rx/Imaitdas V, I\'m'm1akrI."nu, A.l.R. I957 Ker. I26. '3La/lshmadu V. Ramudu, A LR. 1939 Mad. 867.

26~--14 M of LJ & CA/ND/83 194 Conﬂictj--

the earlier comments.

Com ments-

District Judge, Cuddapah (1877).

Comments----

Divisional Judge, Nagpur.

(1907).

89TH REPORT or L WV comm. or mom ON his Ll.\tlT.\TlON ACT, 1963 (Chapter 39¥ArticIes 97 to 1/2: Suits Re./(Hing In .'1{r'.rce1'/rzricatzs 11/{(n'1'er<'.1 make a prayer for setting aside the sale in a suit for aecovtrring possession of his share and article 12 of the Limitation Act.' 190': (pt'escnt article 99). can have no application to such a case.

The Punjab High Court.' dissenting from the above view. has held that in such cases the sale is :1 voidable one and not :_t__ void sale. with the result that such a suit by a Hindu son to have set aside a court sale in execution of :2 decree against his 'father is governed by article 12(a) of the Limitation Act. 1908 (pre- sent article 99). A Travancore-Cochin case takes th=: szunc view." A Supreme Court decision, while touching the point. does not settle this particular contlictf' 39.14. The conﬂict dates back to the days when the draft Bill of the 1877 Act was circulated for comments. The problem was mentioned in the comments on the 1908 Bill.

39.15. The District Judge. Cuddapah. commented' in 1877 as under. when offering his suggestions on the Bill then circulated :--

"I have known repeated instances in which a suit brought really for the establishment of one's right to own and possess an immovable that has been the subject of a court sale has been wrongly dismissed as barred by the lapse of time as being a suit to set aside a sale and brought more than one year after the date of the sale. If there are suits that can properly be brought to 'set aside a sale ordered and effected by a court of Justice. 1 think it desirable to introduce (the section) into words (lcscriptivc of the nature of such suits. Tn any case. something should he done to remove the impression that exists. perhaps Very generally. that if C is ousted from his possession of an immov- able in consequence of a sale to A of B's supposed right over that immov- able. C cannot recover possession unless he sites within ore year from the date of the sale being conﬁrmed."

"The starting time {in this article/131 appears to me toh: ill-chosen. in- asmuch as ordinarily in this Presidency. at least the courts seem not to trou- ble themselves to conﬁrm a sale unless and until rt dispute about the regula- rity thereof actually arises and not always then."

39.16. Thirty years thenceiwhen the Limitation Bill, which led to the Act of 1908 was circulated. the Divisional Judge. Nagpur.' made the following com- ment:--

"Defendants frequently argue with subtle plausibility that a decree or order must be 'set aside' before a possessory relief can be obtained and try to put this and like short period of limitation in the way of the plaintiff. The counter-argument often is that it is not necessary to 'set aside' the order or decree as it is mere nullity by which the plaintiff is not bound. One expect- ed that the Legislature would give an expression of its opinion in embar- rassing cases of the kind unless it has taken some recent Privy Council cases (l.L.R. 25 Born. 337: l.L.R. 32 Cal. 296) as settling the controversy."

'Ajir Singh V. Hem Raj. A.1.R. 1956 Puniab 139.

'NeIt'akama Iyer Vrmcliirwnrn lye!' V, Narayana [Yer Venkim.mb.ha Iver, A.l.R_ 1956 Trav. Co. 262.

-"Faqi'rchand v. Harnam Kama AJR. 1967 SC'. 727. 730 [See para 39.17. infra] 'J. H. Nelson. F.=.q. District Judge. ('uddapah to the Officiating Chief, Secretary to Government. 2nd April. 1377. No. 34.

5N_ote by Rai Bahadur Sharat Chandra Sanyal. Divisional Judge, Nagpur, Accompani- ment to F_S.A. Slocnck Esq. l.("S. Chief Secretary to Chief Commissioner. Central' Pro- vinces dt..19-l2_-1907, No. 2063. V. 4-5. National Archives File on Limitation Bill, 1908.

I gent -views Inbiect. itseemsfto usfthat the position plhotﬂd 156 t!911i REPORT OF-LAW 'comm. or mom on me LIMITATION ACT, 1963 (Chapter 39-----Articles .97» to" I12: VSur'ts Relating to Miscellaneous Jttatters.) Unfortunately, the National Archives ﬁle does not show what action was taken on these comments, but the problem even.'now survi 1. because. under"

section 6 of the!-Iindu Sucoession.Act, 1956. the rights ofa member of coparoe- nary in the Mitaksharacoparcenary property have been saved.

39.17. .The curxeht conﬂict of views has' been already adverted though the Supreme.VCourt has not. in so many words, ruled on this subiect.°°""' °"'< .there are observations in»one_case' to indicate that the Court such a V sale as a voidable one:---- a "It is the existencejof the father's -dehtiihat enables the creditor to sell _ the property in execution of-a 1noney_decree against -the father. Likewise. ' if a mortgage decree against the fathers directs the;-sale of the property for the payment of his debt. the creditor may se11ithe'*phoperty ingexecution of the decree. It is "true that the procedure for the of a money decree is different from that for the -e_nforcem"ent of a decree, A money decree is executed by attachment and 'sale of debtor»'s property. For the execution oi the mortgage decree. an attachment-vof the property is not neces- ' the property is sold by force of the decree." ' . -"But this in 'does not aﬂeet the pious obligation of a Hindu .] inthe caseot a money decree.-

under a mortgage' is add' to: payment of the tathet-'s debt.'The father eou]d?§§)Ii1nta£i1,.y hell. property for rayment of; debt- If there is no Vvo1unta'r57';_gg'1g fthe creditor can all: the Court to do compulsorily what have vourttarily. '3 * that as the father may. in ordtgrlto pay is just; debt. legally sell the' whole estate without suit; so,ijhis- bring about such 8 8116 by 1|!'- intervention of ti suit. See Y. Virasami -A_yyar.' Even where the-mortgage isnot for-.Iegai_ , sity-.01', for payment of an' antecedent debt. _ the creditor cantgin execution of a 'for a debt which the father is liabieto repay, sell- the estate obtaining a personal decree against him,p3Afrer.r_lie-{dice has taken place. ﬂit son is bound by the sale. 'un'!pe_ss]te shows thafﬂte. debt-was r\ton-exipuerf or was tainted. with or t'llega1:'ry." ' » ' 7' ~ 39.18. Without pronouncing upon the'_correctnessi ' or'l.otheI'WlS€' °f'tI;l9'V,d_iV°-1'1V>";'l:

this regard. tsunheyit is notgproper that §M)l'd of' alpoasible suit' a Mitalrshiira .rstttttyp_shente over his head fQr,a_@ﬁ' Conseqi1ently.=wel';r_Jécomm_ett5:ﬁ'.:tl1at. article 99 : shouts be t under:

. "99. To_setasid'9-'f 5 f to a ﬁhtlaieaviiéts' i 7 scss st' co the _ a, caparc.enanp.'i-pro -

~Hindu _; , vemed by tk.'e'_}_ .

law in execution. to T 2;

abtainedngubtsi-ethi t. p a ' 'Para: 3-i.t3t.ttu'p'r'a". = 7 *Fakir Chan 1:. _ .'1!an:asamay an _V;'- W: p p_ 195 196 Meaning of the term 'Officer of G0vemmcnt'.

( Ant " I00. To alter or set aside any decision 89m REI'()R't' or L.\\\' co.-\i.\n\=. or INDIA on 'rm; Llt\ltT'\TlUi\.' ACT. 1963 Ci/topic)' 39- /lrti'r/9.': 97 to H2: Suits Re/alirg lo ill/"soc//uiicoacs Mailers.) (bi a sale for 1l.l'I'L'2!."~; of Go\ern-- ment i'C'.'C11l.tC or any dcinand recoverable as such arrears.

do 100. 3919 Article [00 reads as under :

One year.

The date of the ('trial decision or order by the court or the date of the act or order of the oﬁicer. as the case may bc.."

or oider 01' a civil court in any proceeding other than a suit or any act or order of an otﬁcer cl' Governinerit in his olﬁcial capa-

city.

Articles 13 and 14 of the Limitation Act. l908 read as under:

"I3. To alter or set asidea decision or One The date of the ﬁnal decision or order of a CW1! court in any p:'o- year. order in the case by a court ceeding othe? tliari a suit. competent to determine ii ﬁr.ally."

"l4. To set aside any act or order of ()--i_e T he date of the act or order."

an Oﬁ1CC"= l Govcrriinent in his year.

"I3.

"14.

"l5.

"l6.

the oﬁicial capacity. not herein other-

wise expressly pro» ided for.

Parallel pmvisions in the l877 Act (zirticlcs 13 and I4) were identical:

To alter or set aside a decision or A _ One "= he date ol' the ﬁnal decision or order of a civil court: in any pro- year. order in the Case by a Court ceeding other than a suit. competent to determine i' ﬁnally."

To set aside any act or order of One The date of the act or order." an otﬁcer ot G;,\/ernment in his year.' official capacity. not herein other-

wise expresshi provided tor.

In the 1871 Act, articles 15 and 16 read as under:

To alter 01' set asidcii decision or One The date of the ﬁnal decision or order ct a civil court in any pro- -year. order in the case by a c-.nirt coin- ceedingy other than a illll. peicnt to determine it ﬁnally."

To set aside any ac': of' an 0TllC0l' One The date .)f the suit."

of Governiiwxtt in his oilicial capa- yea in city, not herein otJiei".\'ise express-

ly provided for.

The two articles were put into one article (in place of articles 13 and 14 of Act of 1908) as article 100. This change had been recommended by the Law Commission.' isn 39.20. The expression "Oﬂicer of Govcriinicnt" (which occurs in the article) owhere deﬁned. The Madras High Court' as long back as 1895 was required to decide the status of a "karnam" with reference to article 3 of Schedule II to the Small Cause Courts' Act (9 of 1897). The Court observed as under:

"Officers of Govemment are, no doubt, public servants. but every pub- lic servant is not an ofﬁccr of Government. This is clear from the article itself in which the Court of Wards is expressly mentioned. indicating that otherwise it would not come within the article."

'Law Commission of India. 3rd Report, page 57, para 149,] 'Orr and another V. Neelcmicgam Pillar, (1895) I.L.R. lb Mad. 395.

89111 REl'(:-R'I' or LAW C()M.\t.\'. oi INDIA on THE LIl\Ill'.'.'l'l()N ACT. 1963 197 (Chapter 39- Artie/es '/7 .0 //2: Sn/'15 Relating to M11560//a/zeotzs Matlem.) The Supreme Court. while deciding" that the office of a Governor of a State is not an '"employinent" under the Government of India. referred to its earlier rulingsg in support ol the proposition that a High Court Judge is not a Government servant and observed that a Judge of the Supreme Court also falls in that category.

39.21. The ditliculty as .o who is, and who is not an oflicer of Government C«_m1mcnts-- is not of recent origin. Even when the draft Bill of the Act of 1877 was circulat- Dlsmct Judge, ed for comments, the District Judge of Cuddapah' observed: ' Cuddappah (I877).

, "Article 15 contains' the troublesome expression that l objected to, in remarking on the new ('ode of Civil Procedure, namely, 'Oﬁicer of Govern- ment'. What it means I have not the slightest idea. Is a District Judge one? Is a Batta Peon'? ls a Magistrate'? Is a 'public servant' as deﬁned in the Indian Penal Code?

"And, besides this. there is the same difficulty as in article 13 as to what kinds of suits can be brought to set aside an act of an oﬂieer of Gov- ernment, and being so 'orouglit. must be brought within one year from the date of the Act?"

39.22 Notwithstanding such queries and also the diﬂiculties that do arise No new to from time to time, we have come to the conclusion that the insertion of.a deﬁni-?:$'e._8'1%Cer tion of the expression "Ofﬁcer of Govemment" may create problems. We would of Govern- not therefore recommend any amendment in this regard. men"

39.23. '«The third colunm of the article puts the date of the order as the start- Recommenda- ing point for the purposes of coinputation of limitation. It is based on the assump- to tion that the order in question will be communicated to the affected party in point under good time. However, if. by negligence or over-sight, the order is not communi- "mm mo' cated. the person aggrieved would have no remedy if the communication is de- layed by one year. To provide for such a contingency, we recommend that the third column of article 100 should be revised to read as under : -~ "The date of co/111211//zimlimz of the ﬁnal decision or order by the court. or the date of communication of the act or order of the oﬂieer. or. where there has been no 51/eh (rm;/2211/iirminn. the date on which the pl(n'nIi_/7 first had knowledge of the act or order of the officer, as the case may be."

39.24. Article 101 reads as under :------ /"'"'°'° ""-

"IOI. Upon a judgment. including a Three The date of the judgment or re- foreign judgment. or a recogni- years. cogilisance. sancc.

In the Act of 1908. articies H7 and 122 read as under:--

"I 17. Upon a foreign judgment as de- Six The date of the judgment."

ﬁned in the Code of Civil Proce- years.

dure, I908.

"I22. Upon a judgment obtained in Twelve The date oi' the judgment or recog- the Provinces. or a ieeognisance. years. nisance."

'Hurgu\'iII(I V. lxhtgilllzlxiil Tila/<. A.l.R. 197'? SC. H09.

3(a) Union of India V. S.H. Shcth. /\.l.R. I977 S.C. tb) Bu/(Ier Rui (iuluni V. Pnniuh and Huryana High Court. A.l.R. 1976 S.C. 2490.

"Mr. J. S. Nelson, District Jud-__-e. ('nddapah ----l.etter'No. 34. dated 2nd April, I877 to the omciating ('hiet Secrelar_\ to Government. National Archives lile relating to IS77 Limitation Bill. ' 198 Law Commis-

sioifs Report.

No change needed.

Article 102.

Failure to make enqiiiries

--~--Does this postpone run- ning ot' time?

89m RE1'0R'1' 01' i..\w c<).\i\iN. 017 INDIA ON THE Li.\iii1\iioN Act', 1963 (C/zuplcr 39 ~:lI'Il'('/('.3' ')7 lo //3 .' SI.i1'I.s' Re/utilzg Io .11/'.s'< C//tIIlc()ll.\' illutlc/A.) The corresponding provisions in the Act of 1877 were articles 117 and 122, which read as under:-------

"I 17. Upazi ii t1'»i'eigiijudgntcnt as de- Six the date oi' the jtid\gii1ci1i."

fined 111 the Code of Civil 1'io-- Yeats ccdtiie.

twelve 1110 date ->1 tlie jiitlgiiieiit or recog» years. izisaiiee."

"I32. Upon a jtidgnieiit olitaincd in British lndia. or it. reeo vnisance.

E 39.25. The Law Conimissioni. in its Report on the Act of 1908, observed that articles 117 and 122 of the Act of 1908, relating to suits upon a foreign judgment and upon a judgment or recognisance. the periods prescribed being six years and twelve years from the date of judgment or recognisance, that in England, such suits were treated as suits on contracts. Adopting this principle, the Law Com- mission recommended a period of limitation of three years to bring the article on par with those dealing with contracts. The Law Commission also recommended the substitution of one composite article in place of two articles.

Accordingly. the present proxision was enacted in 1903.

39.26. No further controversy has arisen in respect of the article and no amendment is therefore needed.

39.27. Article 102 reads as under : -- \ When tlie pltr.i:v.t:l"i' is restored to sanity asd has ltiioxvletlge at the coi'.\cyaitcc."

"102. For property which the p12l.il1- iliiec tiff has conveyed while iwsane. years.

lit the Act of 1908, article ')4 read as under :--

\':11C11 fli»: plitilliilil is i'e~.to:'c.i to sanity and has kriowlcdge oi' the convc-yai.-cc."

"94. for p:'operLy which the piaiittilli Three has conveyed while iiisane. years.

The r'orresponding provision in the Acts of 1877 and 1871 Acts was in iden- tical terms. ' 39.28. The first point that arises for consideration in connection with this article is: if the plaintiff. upon attainment of sanity. wilfully neglects to make en- quiries about the state of affairs of his property while he was insane. should such wilful default on his part postpone the running of time?

Dr. Whitley Stokes-' in his Anglo-Indian Codes, comnientcd as under:--

"For the purposes of Schedule 11. articles 32. 48. 90. 91, 92, 94, 95, 113, 114. 118 and 127. it should be declared that wilful ignorance is equiva- lent to, or carries with it the consequences of. knowledge."

1'le quoted 4 Suth. S.C.C. Rel. 19:9 Suth Civ. R. 32'); ll i/lid 163 in support of his suggestion.

This suggestion about constructive knowledge' being made the starting point of limitation has not. however. been coiiiitenziiiced. probably because it would lack cxaetitude in the matter of proof. We rccoinineiid no cliange as to the start- ing point. ' 'Law ('oimnission of India. 3rd Report (Limitation Act, W118). p:i_~.-e 61. para HR. '-'Stokes, Anglo--1iidian Codes (1889), Vol. 2, page 94').

. , . . . r - 199 39m m3P(.)R.T or L.\.\V Ct>.v'.\t,\'. or lI\l.-IA om rm: LlMlTATl()l\ Acr. 1963 (Chapter 39 .~tI'1'r'i':'c't 971:' 5 /3: Suiis Relating -to _«l'Ii.x'<'<'1'/(lIreou.% tlIa((c'F3'-l 39.29. The second point that arises is as to the period. which is three years Thc rycriud, In actual practice. it may not be easy upon the person who has regained sanity to prove the date of knowledge of the conveyance: he would then be faced Wlth the 2ar_:.ument that the suit should hzne been brought Within three years from the ces- ser of diszthility. In such cases the period available would cause h:u'dsl'up.

from 3 years to 6 years. having regard to the considerations mentioned .iboVe.C,ea5e the

- - ' d t We recommend accordingly. fﬁflﬁearg in article I02.

. ' i' T '\rt' 'lc l0}.

39.3]. Article l03 reads as under:--~ ' IL "I03. To m'd.l(E:g(mdm11; -.xf'tlwgener:il Three The date of the trustee's death or estate of' :1 decensetl t."r'_xtec the years. if the loss has not then resulted. [ass nccag{Qn(j(l_ by at h"<:.".c".lt_ til' the Cl.«'J.~'€- Of the l0SS." trust.

lt is identical with article 98 of the Acts of 1908 and 1877.

The corresponding article in the Act of 1871 was article 99. which read as under:~--

"99. To make good out ofth: general Three The date of the trustte's death. or estate of a. deceased trustee the years. if the loss has not then been occa- loss occasioned by :1 breach of sioned. thedate of theloss."

trust.

The present article needs no change.

39.32. Article 104 reads as under :' . Article l0\4.

"l04. To establish a periodically re-- Three When the plaintitif is first ret"used curring right. years. the enjoyment ofTl'io1'lgl1l."

In the Act of 1908. article 13! read as und~:r:~ "l3l.To establish a periodically re-- Twelve When the plaintiff is first refused curring right. i years. the enjoyment of the right."

The period of 12 years under the old article 13.1 and the period of 6 years under the residuary article 't20 have both been reduced to three years, upon the recommendation of the Law Commission' in its Report on the Act of 1908. One consequence of this is that the conﬁict of decisions as to whether old article 131 (12 years) applied to the facts of a particular case or the residuary article l20 (prescribing a shorter period) applied. has now lost its practical importance.

No change is needed in the article.

39.33. Article M5 reads as under '~~ 'L . _ ,, Article I05.

105. By a Hindu for arrears of 1'l'lﬂ.lT'.- Three When the arrears are payable. tenance. ' years.

In the Act of 1903. article l28 read as under:---

"l28. By a Hindu for arrears of main-- Twelve When the arrears are payable."

tenance. years.

'Law Commission of India. 3rd Report (Limitation Act. .l9tl8l. Appendix 1, pages 83 and 87 (articles 1' and 38}.

200 89111 REPORT or L\W C()\I.\I_'»'. or INDIA n.\' mi: Ll.\ll'I'A"1'l()N ACT. 1903 (C/i.iipicr 39 .1 rii<«'u\' ')7 in r' I}: .S'iiits' Re./(;.':'iig 'u .lIi"wcl/iii2ca1Li' Mulfeny.) Reduction of the period of limitation from twelve years (Act of 1908) to three years was a result of the recommendation of the Law Commission'. made in its Report on the Act of 1908.

No change is recommended in the present article.

Article 106.

39.34. This takes us to article 106. which reads as under :»~ "I06. For a legacy or for a .~.l1E'.i'c of a Twelve When the legacy or share becomes residue bequeathed by a testaior years. payable or deliverable."

or for 9. distributixe share of the property of an intestate agaﬁiist an executor or an admin'-stra.or or some other perszw. legally char-

ged with the duty of distributing the estate.

In the Acts of 1908 and 1877, article 123 read as under:--

"l23. For a legacy or for a share of :1 Twelve When the legacy or share becomes residue bequeathed by a. testator, years. payable or deliverable."

or for a distributixie share of the property of an intestate.

In the Act of 1871, article 122 read as under:~ ' "l22._For a legacy or for :1 d1~-.tribu-- Twelve When the legacy or share becomes tive share of the l'n)\"CLLblC p:o- years. payable or deliverable."

perry of a. testator or intestate.

In View of a Privy Council ease} the article in the Act of 1008 was held .to apply only where the suit is brought against an executor or administrator or some person legally charged with the duty of distributing the estate. The Law

- Commission* in its Report on the Act of 1908. recommended an amendment of article 123 of the Act of 1908 to bring it in accord with the above ruling. This recommendation has been implemented in the present article. The article has not 'given rise to any further controversies. and may be retained as it is.

Article 107. . 39.35. Article 107 reads as U.l(l€I' :~~

107. For possessioi'. wt" a liereditary Twelve When the defendant takes posses-

oﬁice years. sion of the oﬁice adversely to the plaintiﬁ".

ExpIanari0n.~A hereditary office is possessed when the properties thereof are usually received. or (if therexire no properties} when the duties there of are usually performed."

In the Acts of 1908 and 1877. article 124 reads as under:---

"124. For possessi tr. of an l1t'l'-?dillil'_V Twelve Where the defeixdant takes posses-

oﬂice. years. sion of the ofiir-e adversely to the })':;\.'i at i ll'.

Exp'Im1ation.--~An hereditary oﬂice is possessed when the profits thereof are usually received. or (if there are no proﬁts) when the duties thereof are usually performed." « 'Law Commission of'lndia_ 3rd Report {Limitation Act. 1908). page (:0, para 165 and page 87, article F5. , '-'Ghiilum w1l.I§r!I/Z'_"'!:i' v. 5"If'l'](/7 Glm/am Hiissaiii. 1.L.R. :74 All. 193. A.l.R. 1932 PC. 81.

3Law Commission of India. 3rd Report (Limitation Act, 19198), page 61, para 160 and page 86, para 30. ' 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 201 (Chapter 39-- -Articles 97 to 112.' Suits Relatirg to Miscellaneous Matters.) In the Act of 1871, article 123 differed very slightly (and only in the last column), by expressly mentioning "some person through whom he (defendant) claims."

The present article needs no change.

39.36. Article 108 reads as under :-- . Article 1089 "I08. Suits dmirag the life of a. Hindu Twelve The date of alienation." ' or Muslim female by a Hindu or years.

Muslim who, if the female died at the date oi' instituting, the suit, would be entitled to the pC)sses--

sion of land, to have an alienation of such land made by the female declared to be void except for her life or until her re-marriage.

In the Acts of 1908 and 1877, article 125 was in identical terms.

Parallel provision in the Act of 1871 was article 124, which read as under':-

"l24. Suit during the life of a Hindu Twelve The date of the alienation."

widow by a Hindu entitled to the years.

possession of lard on her death to have an alienation made by the widow declared to be void except for her life.

39.37. Article 124 of the Act of 1871 restricted the scope of the article to Muslim.

estates held by Hindu widows. Later on, however, the ambit of the article was extended in order to include life estates held by Muslims females of the Punjab who were governed by customary Hindu law. Such instances have dwindled after the passing of the Muslim Personel Law (Sheriat) Application Act of 1937, which has overridden any such customs under certain circumstances.

39.38. After the passing of the Hindu Succession Act, 1956, utility of the Section 14, article has declined even as regards a Hindu female. Section 14 of that Act Hmd" S"°°°s ' A .

confers absolute title in the property upon her'. The exceptions to this general Sm" ct rule have been enumerated in sub-section (2) of that section. Thus, the practical utility of the article is decreasing. However, the time has not yet come for outright deletion of the article.

mu 39.39. In the result, the article needs no change. N0 chance _ needed.

39.40 We now Proceed to article 109, which reads as under :~---- Article 109.

"I09. By a Hindu governed by Mitak-- Twelve When the alienee takes possession shara law to set aside his father's years. of the property."

alienation of ancestral property. * 39.41. In the Act of 1908 and 1877, article 126 reads as under :-- History-

"l26. By a Hindu governed by the law Twelve When the alienee takes possession of the Mitakshara to set aside his years. of the property."

father's alienation of ancestral property.

1V. Tulasamma v. Sesha Redd)'. (1977) 3 S.C.C. 99. 27--l4 M of LJ & CA/ND/33 202 Property covered by the article.

Period.

No change needed Article 110.

Recommendation Article 111.

89TH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 (Chapter 39---Artic/es 97 to Il2----Suits Relating to Miscellaneous Matters.) In the Act of 1871, article 125 read as under: --

"I25. Bya i"lllLd'dgOVCi'l1C(.l. by thclaw Twelve The date of the alienation."

of the Mitakslmsa to set aside his father's alienation of ancestral property.

39.42. The article unedr consideration applies to alienations of ancestral property moveable as well as immovable'. As regards the onus on the Hindu son to challenge the alienation made by his father, the Supreme Court' has made it clear that after the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illega- lity. ~ years.

39.43. The period of 12 years allowed under the article is in symmetry with the general approach of the Act in regard to suits concerning affairs of a Hindu family. Moreover, most of the suits governed by this article are, in practice, suits mainly involving immovable property. The period of 12 years is under- standable on that account also.

39.44. No change is needed in the article.

39.45. This takes us to article 110, which reads as under :----

"l 10. By 2. person excluded from a Twelve When the exclusion becomes known joint family property to cziforce a years. to the plaintiff."

right to share therein.

Article 127 in the Acts of l908 and 1877 was in identical terms. In the Act of 1871, article 127 read as under:

"I27. By a Hindu €XClll.d.€:(_l from j-)irit- Twelve When the plaiiztiﬁ' claims and is famiiy property to enforce a right years. refused his share."

to share therein.

39.46. The "exclusion" contemplated by article 110 of the present Act (and its predecessors) has been held to be a total and absolute exclusion and when a coparcener is in receipt of cash maintenance or in possession of some lands in lieu of the same, he was not entitled to main a suit under this articl.3-' How- ever, certain rulings have expressed a contrary view. namely, 'hat the exclu-

sion need not be totali. To put the matter beyond doubt; we recommend that article 110 should be revised as under:

"l 10. By a person totally cmdabso/zizely excluded from 21 joint family pro-

- perty to enforce a right to share therein.

Twelve When the exclusion becomes known years. to the plaintiff."

39.47. Article 111 reads as under :

"l l 1. By or on behalf of any local au-

thority for possession of any' pub-

lic street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession.

Article 146A of the Act of 1908 was in identical terms.

Thirty The date of the dispossession or years. discontinuance."

'Hurajalli Hunia Goundan v. Ram./Jsami Chem', A,l_R_ 1913 Mad_ 19. 'Faqir Clzarid V. Ha 'flClTl /st.-ur, A.l.R. 1967 SC. 727.

3.-\'ii nan Sing}: V. La.' Riidra P(.r..*i.'), AIR. 1926 P.C. 100.

'See V. G. Panic.7.'ar V. V€!lliIP,?i/Clln, A'.I.R. 1958 Ker. 178 (FB). 5Ling¢'mgouda V. _Sangangomia, A.l.R. 1933 Born. 386, 392.

/ ' V / 89TH REPORT or i,,+_\v COMMN. or INDIA ON THE LIMITATION ACT, 1963 0 (Chapter 39-----Articles 97 to 1.72--- Suits Relating to Miscellaneous Matters.) 39.48. In an Allahabad case' it was held that the word "dispossess" in this 33519 anlswinas Article should be given a wide' meaning, and even if the defendant was inpossessjon of possession of the road much before the road come to be vested in tlie District d°ef"'g'I1nae"'o?' Board, the District Board should be deemed to have been "dispossessed" of the vesting, road immediately on the date of vesting thereof, and limitation for a suit under article 146A of the Act (1908 Act) should be deemed to have started from the date of such vesting. _ A contrary view was taken in u Calcutta case?

In our view, it would be straining the language of the 'article too far to say that a person was "dispossessed" of a property when, on or before the date of alleged dispossession, he was not in possession of'the same. ' 39.49. It is, we think, probable that the view taken in the Calcutta decision Egan?' will be followed by other High Courts also. For that reason, we do not suggest ne¢ded_ any clariﬁcatory amendment of the article on this particular point. The point, in any case, may not recur frequently.

39.50. We should mention another question that is somewhat related to Ema"

article 111. Various State Acts establishing Municipal Corporations, Zilla Pari- after shads and other local authorities contain provisions empowering the local autho- fmg rity to require a person to remove any projection, obstruction or encroachment ' upon a public road3. Usually, a Municipal Corporation takes recourse to the expeditious process of eviction prescribed by such special Acts, rather than go in for the time consuming process of a civil suit- However. the question sometimes arises whether the Corporation is legally entitled to take recourse to such sum- mary proceeding if, for the period of thirty y ars (prescribed by article 111), the Corporation has acquiesced in the encroachm nt. There has been a conflict of opinion on this subject. According to the High Courts of Bombay' and Punjabi', the right of the Corporation to remove the encroachment by the summary pro- cedure is not lost, even after such accguiescene. But a contrary view has been expressed by the Madras' and 'Lahore' High Courts. The question primarily couoems interpretation of the state laws, which is the reason why it cannot be dealt with by» amending the Limitation Act.

A 39.51. This takes us to article 112, which reads as under :-- Amide 112' _"l 12. Any suit (except a suit before the Thirty When the period of limitation would Supreme Court in the exercise of years. , begin to run under this Act against its original jurisdiction) by or on a like suit by a private person. behalf of the Central Government or any State Government, includ-

ing the Government of the State of Jammu and Kashmir.

Article 149 of the Act of 1908 read as 1'1nder:--

"I49. Any suit by or on behalf of the Sixty Central Government or any Pro- years.

vincial Government (except a suit before the Federal Court in the cxercise of its original jurisdiction).

When the period of limitation would begin to run under this Act against a like suit by a private person."

1ZiIa Parishad V. Ram KlteIawan----A.I.R. 1976 Allahabad 209.

'Dhaiadhari Ghosh v. Union Board of Kendrogoria--A.I.R. 1942 Calcutta 151.

'See. for example, section 172 of the Punjab.,Municipal Act, Act 3 of 1911; section 179, Maharashtra Municipalities Act, Act 40 of 1965; section 182. Madras District Muni- cipalities Act. 1920.

'Tayabali Abdullabhai Vohra v. Dohab Municipality, A.I,R. 1922 Born. 9.

-"Pyarelal v. Municipal Committee, Ludhiana, A.I.R. 1955 Punjab 185.

'Baseveswaraswami v. Eellary Municipal Council----A.I.R. 1916 Mad. 613.

7Mr'nicx'pal Committee, Amritsar v. Mt. Guiri, A.I.R.' 1936 Bah. 182.

23-44 M of LJ & CA[ND[83 \ Banks---

suggestion considered but not accepted.

Article 113.

39TH REPORT or LAW COMMN. or INDIA ON rnr. LlMlTATION ACT, 1963 .(Chapter 39--Articles 97 to ][2--«SuI'ts Relating to Miscellaneous Matters.) (Chapter 40---Article I13----SuI'ts for Which there is no Prescribed Period.) In the Act of 1877, article 149 reads as under: _ "l49. Any suit by or on behalf of the Sixty When the period of 1imita"°.11 1 Secretary of State for India in years. would begin to run undenthls Council. Act against a Eike suit by a private person."-

In the Act of 1871, article 150 read as under:

"150. Any suit in the name of the sec- Sixty When the right to sue accrues."

retary of State for Indian in years.

Council. i ' As the period of 60 years available to Governmeni under the earlier Acts for ﬁling any suit was rather on the high side, it was reduced to 30 years by the present Act, on the recommendation of the Law Commission'.

39.52. In an article published in 1980, a plea has been made" to extend the beneﬁt of article 112 of the Limitation Act, to banks and other ﬁnancial institu- tions, on the ground that in view of the extensive lending by the banks, several debts are getting barred, and this has happened even though the banks try to keep all-the security documents relating to the advances alive and enforceable. It ' has been stated that the shorter loans granted by the banks, like over-drafts and cash credits, have to be renewed or rc-loaned at the expense of vast manpower, just to savejthe loans from getting barred under the Limitation Act and this . _ process involves considerable delay and expense.

We are afraid that the case of banking institutions can hardly be treated like Government. Unlike the Government is often faced with multiple problems that require decision making at various points (somehow right upto the Cabinet level), and the process is time-consuming. This is not the position in the case of banks which are run on commercial line. Secondly, if a period of 30 years is made applicable to banks, similar demands for a special treatment would also be put forth by other large business houses, who havea network of oﬁices through- out the country. For example, a large tea industry may claim'that it has offices throughout India in every village, and should be given an enlarged period of limitation when it comes to the question of ﬁling suits arising out of supply of tea to its retailers. It would obviosuly be impossible to extend the conces- sion to all other cases. -

We do not, therefore, favour acceptance of the suggestion.

;

. CHAPTER 40 113: SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD 40.1. yxrticle 113 is the residuary article regarding suits and reads as under :---

"113. Any suit for which no period of Three When the right to sue accrues."

limitation is provided elsewhere years.

in this Schedule.

_ ;Law Commission of India, 3rd Report (Limitation Act, 1908), page 61, para' 162. K. C_halapat1 Rao (Law Oﬂiccr, State Bank of India Hyderabad), "Limitation Act, 1963----Art1cle 112: Necessity to extend its beneﬁt to banks", A.I.R. 1930 Journal 16.

89m REPORT or LAW comvm. or mom on THE LIMITATION ACT, 1963 (Chapter 40--~Artic!es I13 ~Suits _/for Which there is no Prescribed Period.) This article corresponds to article 120 of the 1908 Act, which read as under :---- _ "120. Suit for which no period of limi- Six When the right to sue accrues." tation is provided elsewhere In years.

this Schedule.

Corresponding provisions in the l87l (article 118) were identical.

Act of H377 (article l20) and the Act of It may bd noted that article 120 of the Act of 1908 provided a period of limitation of 6 years, VV'h€l"€ﬂ.'%'tl1€ present Act has reduced the period of limita- tion to 3 years, -as recommended by the Law Commission' in its Report on that Act. No change is recommended in the present law.

CHAPTER 41 ARTICLES 114 T0 117 : APPEALS 41.1. Article 114 reads as under :--~ ' "I114. Appeal from an order of acquittal,» ---

Ninety The date of the order appealed days. from.

(a) under sub-section (1) or sub-section (2) of sec-

tion 417 of the Code of Criminal Procedure, l898 .'~'

(b) under sub-section (3) of sec- Thirty tion 417 of that CcdC.3 days.

The date of the grant of special leave." 7 In the Act of 1908, articlc 157 read as under ;~ "l57. Under the Code of Criminal Six 3:: The date of the order appealed Procedure,l898,froman order of months from." acquittal.

In the Act of 1877, the parallel provision was found in article 157, which read as unden-

The date of the judgment appealed "[57. Under the Code ot'Criminal Pro-- Six against."

cedure from a judgment of months acquittal.

The Law Commission', in its Report on the Act of 1908, noted that the periods provided for appeals in England were shorter, in contrast with the period of three months allowed, by article 157 of the Act of 1908 (as amended in 1955). The Commission did' not recommend a general reduction of the period for appeals. But it recommended a limitation period of one month in the case of an appeal against acquittal by a private party with special leave.

41.2 While we do not propose any changes of substance in this article, a verbal change is necessary in view of the passing of' the Code of Criminal Pro- cedure, I973, which repeals and re-enacts the Code of 1898, referred to in the article; For the reference in the article to sub-sections (1) and (2) of section 417,

-a reference to subsections (1) and (2) of section 378 should be substituted, and A for the reference to sub--section (3) of section 417, a reference to sub-section (4) 'Law Commission of India. 3rd Report (Limitation Act 1908). page 6!, Dara 159.

"Cf. now section 378 (1) and (2), Cr. P.C. 1973.

3Cf. now section 378 (4) Cr. P.C., 1973.

'Law Commission of India, 3rd Report (Limitation Act 1908), page 63, Paras 166-167 and page 87, article 39.

Article 114.

Recommenda-

tion to make verbal change.

265

\ 206 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 4I~'ArticIes 114 to' 117 ----AppeaZs.) ' of section 378 of the Code of Criminal Procedure, 1973 should be substituted', these being the provisions of the new Code corresponding to those of the Code of 1898. ' Article 115- 41.3. The next article is also concerned with appeals under the Code or. Criminal Procedure and reads as under:----

"IIS. Under the Code of Criminal Proced ire, l898-------

(a) from a sentence of death Thirty The date of the sentence.

passed by a court of session days.

or by a High Court in the exercise of its original crimi-

nal jurisdiction;

(b) from any other sentence or any order not being an order sif acquittal--

(1') to the High Court. Sixty The date of the sentence or order. , ' days.

(ii) to any other court. Thirty The date of the sentence or order." days.

This article corresponds to articles 150. 150A, 154 and 155 of the Act of 1908. They read as under:

"I50. Under the Code of Criminal Seven The date of the sentence. Procedure, £898. from a sentence days.

of' death passed by a court of Session or by a High Court in the exercise of its o1'iginal cirminal jurisdiction.

150A. Under the Code of Criininal Seven The date of the ﬁnding Procedure, 1898. from a ﬁnding days. ' rejecting a claim under section 443 of that Code.

154. Under the Code of Criminal Thirty The date of the sentence or order. Procedure, /1898, to any court days. appealed from. other than a High Court-

155. Under the ,same Code to a High Sixty The date of the sentence or order Court, except in the cases provi- days. appealed from."

dad for by article 150 and article

157. The Law Commissionﬂ, in its Report on the Act of 1908, recommended that the period of seven days available under articles 150 and 150A of the Act of 1908 (Death sentence) should be increased to thirty days. This recommendation has been accepted. The Commission also recommended a .uniform period of 30 days irrespective of the forum----a recommendation which has not been carried '~ out.

Rmmmchda. 41.4. The reference in this article to the Code of Criminal Procedure, 1898, :1§l,11c1351'1'; should now be revised and a reference to the present Code of 1973 should be \ 7 substituted in the opening part of the article. We recommend that article 115 should be so amended.

A'I.l:{I.:(ir96tE1%.g:aréi6c:(r)' §i6s£ory of section 417, Cr. P.C., see Kaushalya Rani V. Gopal Singh,"' Law Commission of India, 3rd Report (Limitat' A t, 1908, 61, 1 «page 88, article 40 (ﬁrst part). I ' Ion C ) Page para 6.3' and 89TH REPORT or LANV comm. or lNDiA ON THE LIMITATION ACT, 1963 307 (C/rapier 41» Ar!/1'.-'03 114 [0 1/7 ---Apipt"ufs.) 41.5. This takes us to article llo. which provides for limitation for civilATtiC1¢ 11.5- appeals as under:-- -

"£16 Under the Code of Civil Procedure. 1908 »-

(a) to a High Court from any Ninety The date of the decree or order.

decree or order. days. i

(b) to any other Court from any Thirty The date of the decree or order."

decree or order. days.

_ The corresponding articles in. Lite Act 01' 1908 wt' 'e 156 and l52, whicli read as under z----

"156. Under the Code ol Civil I't'o~ Nin ty The date of the decree 01" order cedure, l908, to a High Court. days. appealed from. except. in cases provided for by article 151 and article 153. ,

152. Uiider the Code of Civil Pro» Thirt) The date of the decree or order ccdnre, 1903. to the Court of a days. appealed from."

District Judge.

Appeals under the Code of Civil Procedure, provided for in articles 156 and 152 of the Act of 1908, had ditterent periods of limitation; a larger period of ninety days for appeals. to High Courts and :1 shorter period of thirty days for appeals to the court of a District Judge. The Law Commissionl, in its Report on that Act, took the view that in the light of improvement in the means of quick transport enabling the litigant to undertake travel to the seat of the High Court, the period of ninety days was unrealistic and should be reduced to thirty days. The Limitation Bill, 1962, as introduced, sought to implement this recom- mendation. However, when the matter came up before the Joint Committee, the Committee accepted an amendment moved by an Honourable Member (Shri S. K. Basu) which sought to retain the period of ninety days. That is how article 116 (combining the earlier articles 156 and 152) came to be enacted in the present form.

41.6. We should reiterate the earlier recommendation of the Law Commis- Rccommendw sion for reduction of the period for appeal to the High Court to thirty days. tion as to Reduction of the period is justified for the reasons given in the Report on the am°i° H6' earlier Act. It may, to some extent. also help to reduce the number of appeals to the High Court, since a shorter period might dissuade a wavering appellant from taking a chance.

41._7. This takes us to article I I7. which reads as under :~-- Am": in , ''l 17. From a decree or order of any Thirty The date of the decree or order."

High Court to the same Court. days.

Article 151 of the Acts of 1908 and 1877 read as under :----« "l 51. From a decree or order of any of Twenty The date of the decree ct' order." the High Courts of Judicature at" days.

Fort William [Madras] [and Bom-

bay, or of the High Court of East Punjab} in the exercise of its oct-

ginal jurisdiction.

'Law Commission of India, 3rd Report (Limitation Act, 1908), page 62-63, para 165 am! page 88, article 40, latter part.

zés Article 118.

Order 37, C.P.C.

Outline of the procedure.

89l'H REPORT or L/\.\V C.).\l\I.\1. or INDIA on THE LIMITATION ACT, 1963 (Chapter 41~--A'rtic/es 114 to ./17--Appealis.)----(CIzapIer 42--ArtI'cles 118 to 136~ ;AppliCati0I1.S' in Speciﬁed Cases.)

-Increase of the period from 20 days to 30- days was recommended by the ' Law Commission in its Report on the Act of 1908--which also recommended a uniform period for all High Courts.' The recommendation has been carried out. The Commission observed that the then existing period (20 days) was too short "and attempts are often made to get an extendc_d period by tirst applying for leave to appeal as a pauper (for which a period of 30 days) is provided and then.

on failure to obtain such leave, to ask for time for payment of court fee, the delay in such payment being excused by the Court".

No further change is needed in the article.

r CHAPTER 42 t ARTICLES 118 TO 136:APPLlCATl0NS IN SPECIFIED CASES 42.1. Artie'e 1 18 reads as under :--

"For leave to appear and dell,-rid it suit Ten When the summons is served."

undersummarygproecdure. ' days.

This corresponds, in substance, to article 159 of the Acts of 1908 and 1877. They read as under:-- ' Ten When the summons Is served."

"For leave to appear and defend a suit days.

under summary procedure referred to in section 128(2) (f) or under Order XXXVII of the same Code (Code of Civil Procedure, 1908).

42.2. The article has to be read with Order 37, Code of Civil Procedure, 1908, 'which lays down the procedural law applicable to suits triable under the summary procedure. The Courts and suits governed by the Order are enumerated in Order 37, rule 1. It is enough to note that their range and ambit have been considerably widened by the amendments made in 1976 in the Code. The pro- cedure to be followed step-by-step is provided for iI1 Order 37, rules 2 and 3. The remaining rules of the Order 'deal with matters of detail. ' , The scheme laid down in Order 37, rules 2-3, for the trial of a suit under the summary procedure (so far as is :II..terial for the present purpose) ca11 be said ' to comprise several stages, of which two are important--

(1) appearance by the defendant, and

(ii) seeking leave to defend.

There are two distinct categori-;s'of summons envisaged by Order 37, rule 3, corresponding to the two stages mentioned above:

42.3. In outline, the procedure under Order.3 7, is as under:---

After the summons for appearance is issued to the defendant, he may, under _ Order 37, rule 3(1), enter an appearance within 10 days.

'Law Commission of India, 3rd Report (Limitation Act, 1908), page 62, para 164 and page 88, article 40, latter part.

89 rrt REPORT or Luv comtrt. or lND':,-\ on THE LIMIT.-\_TiO'.\' ACT, 1963 G I (Chapter 42~-Articles I 18 to !36~-Applications in Speciﬁea'Cases.) If he enters an appearance. he has to tile in court an address _for service. ve or send a "notice of On the date of entering the appearance, he has to set appearance" to the plaintiff. , tered. the plaintiff has to serve on the defen- bed form), returnable not less than st be accompanied by an After the appearance is so cn dant a summons for judgment (in the prescri 10 days from the date of service. The summons mu application verifying certain facts.

(2) The next--and the second most importanr------stage is the seeking by the defendant of leave to defend. Under Order 37. rule 3(5), within ten days from 'the service of the summons for judgment. the defendant may, by affidavit or otherwise disclosing sufficient facts. apply for leave to d-cfend the suit. If leave is not sought or (though sought) is not granted, a decree follows. If leave is granted. the trial proceeds.

(We are not. in the present Report, concerned with the considerations to be taken into account by the Court while considering the grant of leave}.

42.4. We have referred above to the provisions in the Code of Civil Proce- Proposal of Government of dure in view of the fact that we find that the Government of Maharashtra has. Maha,,shm._ for sometime, been actively considering a proposal for amending article 118 of the Limitation Act and also the relevant provisions of Order 37 of the Code of Civil Procedure, with a view to mitigating certain diﬁiculties that have been ex- perienced under the present provisions.

The Government of Maharashtra has stated' that the period of limitation of ten days under article 118 is found to be too short, by persons residing outside the jurisdiction of the court and by the big concerns (inciuding Government departments and local authorities) who require more time to obtain, orders of their appropriate authorities. Similarly. the present procedure (in order 37. C.P.C.) of ﬁrs_t entering appearance and then obtaining leave to defend. results in avoidable delay and cost to both the parties. To save the litigant from such hardship, the State Government has proposed that in a summary suit when the summons is served, the defendant shouid apply for leave to defend and, for this purpose, the period of limitation should be extended to thirty days from the date on which the summons is served on him. The proposal is to amend article 118 in its application to the State of l aharashtra for this purpose. after which amendment, it is expected that the High Court will' take necessary action to amend Order 37 C.P.C. suitably. The High Court, it is stated, has been con- sulted an_d is in favour of the arnendrrent. The proposal was forwardedvby the State Government to the Government of India for .'*-dministrative approval according to the instructions of the Government of India regarding legislative proposals concerned with matters in the Concurrent List. Copies of the rele- vant papers were forwarded to this Commission by the Legislative Department of the Government of India, with a request for information as to whether any proposal for amendment of article MS has been considered by the Commission for amendment of article l'l8 and. if so, with what result. Though there is. before us, no formal suggestion for amendment of the article. we have found the proposal of the Government of Maharashwa as deserving of favourable considera- tron.

'Papers in Government of India Lcaislative Dear: r at F14 as L - Maharashtra Stat ' LA. B.1 ~=-~ _' "P I'l'l§I}_ ..t e . (1 )/3l- cg. II, mt) am, r.....,..;:.s:t 3.: r..t:s.:::.~t,rs t 209 210 Proposal to be ' viewed favourably.

Verbal point regarding leave to appear.

l_lecommenda-

tron.

Article I19.

89rH REPORF or l.A\V CO.'vl\'.\'. 0'; !N!):;\ 07» mi: 1.l.\lJ'1'.\1'l-f)N ACT, 1963 (Chapter 42 ------Articles 118 I0 I39 -Appiiat/ions in Spec*Uie(/ Cases./) 42.5. Since the proposal of the Government of Maharashtra is a composite one, involving an amendment both of the Code of Civil Procedure, 1908 and of article 118 ofthe Limitation Act. we are not. in this Report, recommending any amendment of article 118 of the Limitation Act on an all-India basis. t the same time, it'appears to us that acceptance of the proposal of State Government .

of Maharashtra for amendment of the Limitation Act in its application to that State is ultimately likely to improve the expeditious disposal of Summary Suits, and our recommendation for the present is that any such proposal by a State Government for replacing the Various stages of Order 37. rule 1'. by a simpler mode of trial should. in principle. beviewed favourably. if the experience of working of the proposed procedure in the State or States where such an amend- ment is effected shows good results, it will be worthwhile to consider the in- corporation of similar amendments on an all-India basis in the ('ode of Civil Procedure, I908. Order 37 and in aréicle 118 of th: 3 imitation Act, 1963.

42.6. A verbal point concerning article llfi' any 'be mentioned at this stage. The ﬁrst column of the article describes the application as one "for leave to appear and defend a suit under summary procedure". I-Yowever, it should be mentioned that Order 37 rule 3, as it now stands, does not require leave for appearance [of the defendant. though leave is still required for defending the suit. In order to ensure that this position is reflected in the Limitation Act, we would have considered recommending a verbal change in the first column. However, it should, at the same time, be pointed out that a number_ of time limits, for taking various steps contemplated by the rules of procedure are speci- ﬁed in the rules also--Order 37, rule 3(1) to 3(5).

Somewhat elaborate amendments may be required in Order 37, Rule 3.

42.7. In view of what we have stated above in our comments on the pro- posal of the Government of Maharashtra----a proposal involving substantial amendments in the procedural provisions---we think that it would be more bene- ﬁcial if. instead of a mere verbal amendment' of article 118, the procedural sche- me itself receives consideration from the point of view of the numerous stages envisaged at present by Order 37, Rule 3 C.P.C. After the State amendments (when they materialise) are given a trial, this can be taken up. Along with an amendment of Order 37 C.P.C., Article 118 of the Limitation Act can also then be amended so as to increase the period to 30 days} 42.8. This takes us to article 119. which reads as under :--~ "l 19. Under the Arbitration Act. l940~

(a) for the ﬁling in court of an Thirty The date of service of the notice award; days. of the making of the award;

(b) for setting aside an award Thirty The date of service of the ﬁling of remitted for reconsideration. days. the award."

Articles 158 and 1.78_ of the Act of 1908. as substituted by the Arbitration Act. 1940, read as under:

"158. Under the Arbitration Act, Thirty The date of service of' the notice of' 1940, to set aside an award or to days. ﬁiing of the award. ' get an award remitted for recon-

sideration. ' K 'For future action at the appropriate time.' 89111 REPORT or LAW CUMMN. or INDIA ON rm; LIMITATION ACT, 1963 211 (Chapter 42~-»ArIz'cles 118 to I36: Applications in Speciﬁed Cases.

178. Under the Arbitration Act, 1940, Ninety The date of service of the notice of for the ﬁling in court of an award. days. the making of the award."

Corresponding provisions in the Act of 1877 were articles 158 and 176, which read as under: « « "158. Under the Code of Civil Proce- Ten When the award is submitted to the dure to set aside an award. days. Court.

176. Under the Code, of Civil Proce- Six The date of the award." dure, section 516 or 525, that an months. ' _award be ﬁled in Court.

Corresponding provisions in the 1871 Act were articles 155 and 165, which read as under:

"l55. Under the Code of Civil 'Proce- Ten .When the award is submitted to the dure to set aside an award. days. Court and notice of the submission has been given to the persons and in manner prescribed by the High Court.

165. Under the Code of Civil Proce- Six The date of the award."

dure, section three hundred and months twenty seven,' that an award b ﬁled in Court. 1 It may be mentioned that in the present Act, the period has been made uniform.

d2.10. The question of the arbitrator ﬁlling an award is of interest. In a mbitmto, Nagpur case', after summarising the case law, the court observed: ﬁling 3??-|'d 111 00111' .

."It has been held in a series of cases that article 178 of the Limitation Act (of 1908) does not apply to (the) arbitrator," i.e. to the arbitrator who himself ﬁles the award.

42.11. This matter was considered by the Law Commission2 in its Report Law,Commi,_ on the Act of 1908. It recommended that there should be a time limit for the si0n's Report arbitrator to ﬁle the award, and that the period should be thirty days from the 3? 1tE§g_Mt last date of service of notice of the making of the award on any one of the parties. This recommendation of the Law Commission was not, however, ac- cepted at the drafting stage. One of the comments3 received was that the arbi- trator should have no right at all under the Arbitration Act to ﬁle an award in court by himself without the parties moving within 90 days or the court ordering "him to ﬁle the award in court.

_, -Another District Judge' opposed the recommendation for curtailing the period of 90Adays under article 178. Ultimately, the article emerged as quoted above. We have no further suggestion to make on this point. It would seem that the ﬁling of an award by an arbitrator need not be accompained by an application'.

_' 42,12. As to the scope of the words "otherwise invali ", which occur 11] sec-- Rccomm,nda_ tion 30(b) of the Arbitration Act. 1940, the Law Commission" in its Report on gggigtﬁn Act, 1940.

_1Goonda__LaI v. Matlmra Dass, A.I.R. 1957 Nagpur 32. . ' *Law Commission of India, 3rd Report [Limitation Act, 1908), page 66, para 172. B_m3District Judge Shri I. Sambasivrao, Andhra Pradesh Legislative Department ﬁle (1963 I .

_ 'District Judge, Shri B.M. Nigam, Uttar Pradesb Legislative Department ﬁle (1963 Bill). 'Cf. State v. Thomas, A.I.R'.' 1973 Ker. 262, 264, 265. 'Law Commission of India, 76th Report (Arbitration Act, 1940), page 53.

29-14 M or L1 &cA/ND/83 212 Article 120.

Applicability to proceedings under special law.

891'}: REPORT or LAW COMMN. or mom ON THE LIMITATION ACT, l963 (Chapter 42--~Articles 118 to 136: Applications in Speciﬁed Cases.) ghat Act has recommended that an Explanation should be added to section /30 as o1lows:--- "

"Explanation.--The expression 'or is otherwise invalid' includes the ground that there was no valid arbitration agreement or no valid reference to arbi- tration".

We reiterate this recommendation, which malces the statement of the law in the section comprehensive.

42.13. Article 120 reads as under :--

"Under the Code of Civil Procedure,' Ninety The date of death of the plaintiff, 1908, to. have the legal representative days. appellant, defendant or respondent of a decease plaintiﬁ" or appellant or asthe case may be.

of a deceased defendant or respondent,"

made a party. A This article corresponds to articles 176 and 177 of the 1908 Act, which read

- as under:--

Ninety The date of the death of the dc-

days. ceased plaintiff or appellant.

"l76. Under the same Code to have the legal representative of a de-

ceased plaintiﬁ' or of a deceased appellant made a party.

177. Under the same Code to have the legal representative of a de-

ceased defendant or a of a de-

ceased respondent made a party.

Ninety { The date of the death of the de-

days. ceased defendant or respondent."

Corresponding provisions in the Act of 1877 were contained in articles 175A, 175B and 175C,Vwhich we need not quote.

42.14. The Delhi High Court' has held that under section 53 of the Land Acquisition' Act, 1895, the provisions of Order 9 as well as Order 22 of the Code of Civil Procedure, 1908 apply to proceedings before the District Court under that Act and, the District Court must bring the legal representatives on record on the death of a party to such proceedings; at the same time, the court ' held that the provisions of the Limitation Act would not be attracted, and the application for substitution should be made within reasonable time.

42.15. On principle, a person whose land has been acquired and who claims more compensation than that given by the Collector should be vigilant, and, if the original owner dies during the pendency of the proceedings, it should be obligatory for the legal representative of the deceased to apply for being brought on record in the same manner~--as he would do if the deceased was a plaintiﬂ in a ' regular civil suit.

To permit the legal representative to apply within a "reasonable time" might encourage undue pendency of the proceedings. However, we are not reconﬁ- mending an amendment of the Limitation Act, as this question has to be dealt with in the special laws, rather than in the Limitation Act.

We may incidentally mention here that in discussing certain other sections, we have dealt with the position of Tribunals.' 'Union of India v. Sanwalia, I.L.R. (1975) Delhi 837. 'See discussion as to section 29 and article 137.

8911; REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 42----Articles 118 to 136: Applications in Specified Cases.) 42-16. The third column of the article under discussion speaks about the Staﬁinﬂ date of death of the plaintiff (or the appellant, defendant or the respondent), as the p°_m starting point of limitation. The Supreme Court (in another context), while' inter- preting article 171 of the Act of 1908 (corresponding to present article 121), held' that the date of the appellant's knowledge of the death of deceased respondent was irrelevant for the purposes of computation of time under that article.

However, the Judicial Commissioner, Goa has held' that the period of limitation under article 120' starts on the day on which the parties opposing the deceased party acquire knowledge of the death of the deceased. When it was argued that the text of column 3 leaves no margin to accommodate such an interpretation, the Court observed :--

"However, it seems to me that 'if such an interpretation had been accepted, it would lead, to starting results in cases in which deliberately or otherwise the death of a party was kept in secret by the party interested in not having the heirs brought on record in time so that they might raise the defence of limitation. The party who did not have the knowledge of the death would in such circumstances be put in serious jeopardy. This leads me to believe that the interpretation placed g by Shri Usgaonkar on the passage quoted above is not correct. The words "the date of death of the plaintiff, appel- lant, defendant or respondent, as the case may be' apply to the heirs or legal representatives of the plaintiff, appellant, defendant or respondent as the case may be when such heirs or legal representatives have the duty of being brought on record or the duty of informing the other side about the fact of the death. The period of limitation under Item 120 therefore starts on the day on which the parties opposing the deceased party acquire know- ledge of the death of the deceased."

42.17. No other. case has come to our notice to support the interpreta- tion of the Judicial Commissioner, Goa, and in a sense, such an interpretation, with respect, runs counter to the one placed by the Supreme Court on article 171 of the Act of 1908.

42.18. Nor does the present position really cause serious hardship. An abate- No change ment that follows on non-substitution can be set aside under article 121, and, in re- "mica- gard to an application under that article, section 5 of the Act is also applicable.

Bonaiide ignorance of the death of a party is suﬂicient cause in this context?

42.19. Article 121 reads as under ;--" _ . Article 121.

"Under the same Code for an order to _ Sixty The date of abatement."

set asipc an abatement. days.

Article 171 of the Act of 1908 reads as .under:---

"Under the Code of Civil Procedure, Sixty The date of abatement." I 1908, for an order to set aside an aba- days.

temont.

This article has not given rise to any controversy, and needs no change. It should be noted that though the period is sixty days, it can be extended under sec- tion 5. Further, ignorance of death is a factor to be taken into account in applying section 5.' 'Union of India v. Ram Charan, A.I.R. 1964 S.C. 215, 220 (case under article 121). °PolpoI0 V. Nilklumt, A.I.R. 1972 Goa. 31.

30.22. R. 4(5), Code of CiVil Procedure, 1908, as inserted in 1976.

'Order 22, Rule 4(5), Code of Civil Procedure, 1908 as inserted in 1976.

214

Article 122.

Failure to deposit cost of paper book.

89r1-I REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 42---Articles 118.10 136: Applications in Specified Cqsc'-Y'-) 42.20. Article 122 reads as under 2--

"To restore a suit or appeal or appli- Thirty Date of dismissal."

cation for review or revisioddismissed days.

for default of appearance or for want of prosecution or for failure to pay costs of service of process or to fur-

nish security for costs.' l Articles 160 , 163 , 168 and 172 of the Act of'l908 read as under:--

"l60. For an order under the same Code, to restore to the ﬁle an application for review rejected in consequence of the failure of the applicant to appear when the app-

lication was called on for hearing.

Fifteen When the application for review days. rejected.

163. By a plaintiﬁ' for an order to set Thirty The date of the dismissal.

aside a dismissal for default of days.

appearance or for failure to pay costs of service or process or to furnish security for costs.

168. For the re-admission of an appeal Thirty The date of dismissal. dismissed for want of prosecution. days.

172. Under the same Code by the Sixty T he date ofthc order of dismissal. assignee or the receiver of an in- days.

solvent plaintiff or appellant for an order to set aside the dismissal of a suit or an appeal.

The corresponding provisions in the 1877 Act were contained in articles 160. 162, 168 and 171, which need not be quoted.

'On the recommandation of the Law commission,' articles 160, .163, and 172 of the Act of 1908 were consolidated into one article, and ,a uniform period of 30 days from the date of dismissal has been provided in_ the present Act.

42.21. Article 122 has been differently interpreted as 'respects 'itsapplication to the restoration of appeals dismissed for failure to deposit the cost oflpaper book. The Rajasthan High Court has observed': ' I" I "An application for restoration of an appeal which is dismissed because of the failure of the appellant to pay the cost of preparing the paper boole as re- quired by Rules of High Court is governed by.Art; 168 ofthe Limitation Act (of 1908). Such a dismissal can only be called dismissal for want of presecu- tion and Art. 168 applies to all cases where there is an application for re- admission of an appeal which has been dismissed for want of prosecution, even though the application may not be under O.XLI, R.19, C.P.C."A In an old case, the Calcutta High Court held' that such an application {was made under the rules of the High Court and not under section 558 of Codeof Civil Procedure, 1882 and is, therefore outside this article.

This view was also followed by the Patna High Court'.

1Law Commission of India, 3rd Report (Limitation Act, 1908), page 67, para 174.. .- '~'Ram Niwas v. Sulaman, I.L.R. (1951) I Raj. 827. 829. _ "Ram Hart' Salm v. Madan Molzan Mitter, (1896) I.L.R. 25 Cal. 339, 347.

74 'Minnie Lal v. Mahadea La)! Marwari, A.I.R. 1949 Pat. 112, para 2; I.L.R. 27 Pat.,,.

5. 89m REPORT or LAW COMMN. or INDIA on rat: LIMITATION ACT, 1963 (Chapter .42--Articles 118 to 136: Applications in Speciﬁed Cases.) 42.22. The Mysore High Court' has held that when the High Court has dismissed an appeal for non-payment of costs for preparation of paper book, such dismissal is in the exercise of the inherent powers under section 151 of the Code of Civil Procedure 1908, and the Limitation Act does not apply to an application for restoration of the appeal. The Court took the view that an application for restoration should be made within reasonable period, and what the reasonable period is depends upon the facts and circumstances of each case.

However, a contrary view has been taken by a ruling of the Full Bench of the Orissa High Court3 in which the expression "for want of prosecution"

occurring in article 122 has been given a wide connotation so as to cover any class of appeal dismissed for non-compliance with the High Court rules.

The point may not, in practice, arise very frequently. It is for that reason that we refrain from recommending a clariﬁcatory amendment.

42.23. The next article--article -123 reads as under:----

"123. To set aside a decree passed ex» Thirty The date of the decree or where the parte or to rehear an appeal dec-- days. summons or notice was not duly creed or heard exparte: served, when the applicant had knowledge of the decree."

Explanation.----For the purpose of this article, substituted service under rule _20 of Order V of the Code of Civil Procedure, 1980, shall not be deemed to be due service."

In the Act of 1908, articles 164 and 169 read as' under:-----

"164. By a defendant, for an order to Thirty The date of the decree or, where set aside a decree passed ex parte. days. the summons was not duly served, ' when the applicant has know-

ledge of the decree."

"I69. For the re-hearing of an appeal Thirty The date of the decree in appeal or, heard ex parte. days. where notice of the appeal was not duly served when the applicant has knowledge of the decree."

42.24; The Law Commission had, in its Report on tie Act of 1908, taken Law commis- notice of the diiferent interpretations of the expression "duly served" in column 351011 R"-P0"

of the relevant article and observed that it would be unjust to impute knowledge of the decree to 'a party when the party was not served with summons (in the ordinary manner). The recommendation''' of the Commission was to amend the article suitably on this point. The recommendation has been accepted, and an Explanation added in the article (by the Act of 1963) so as to ensure that substi- futed service is not 'due service' within the meaning of the article.' No further change is needed in article 123.

42.25. Article 124 reads as under :--

"I24. For a review of judgment by a Thirty court other than the Supreme days.

Court.

The date of the decree or order."

'Baswantarava v. Gurappa, A.I.R. 1968 Mysore 329, 330, 331. ' 2Bimla Devi v. Patitapaban, A.I.R. 1973 Orissa 169, 171 (F.B.). 3Law Commission of India, 3rd Report (Limitation Act. 1908), page 67, paragraph 175 and page 88, article 46.

'Cf. Kanshi Ram v. Bhagwan Kuur, A.I.R. 1970 Punjab 300.

215

216 ' Court Fees Act and other aspects-

No change needed.

Article 123. _ Formal application.

89m REPORT or LAW COMMN. or lNt)lA oN nu LIMITATION ACT, 1963 (C/taptcr 42» Articles /18 to 136.' Appliccztiwzs in S[)e'cIjit'(l cases) Article 161 , 162 and 173 of the Act of 1908 read as under :-

"161. For a review oi' judgment by a l<'i1'tccn The date of the decree or order. Court of Small Causes (other than days.

a Presidency Small Cause Court) 'or by a Court invested with the jurisdiction of a Court of Small Causes when exercising that jurisdiction.

162. For a review of judgment by any of the following Cour'.s, ivamely, the High Courts of Judicature at Fort William, Madras, Bombay and Nagpur and the High Court of East Punjab in the exercise of its original jurisdiction.

Twenty The date ofthe decree or order.

days.

173. For a review of judgment except in the cases provided for by article 161 and 162.

Corresponding articles in the Act of l877'wcre 160A, 162 and 173, which we need not quote. ' Ninety The date of the decree or order."

days.

42.26. Articles 4 and 5 of Schedule 1 to the Court Fees Act, 1870 make a distinction between applications for review of judgment if presented on or after the ninetieth day from the date of decree (on the one hand) and applications pre- sented before the ninetieth day from the decree. An applicant pays one-half court fee in the latter case. However, this is a matter separate from limitation.

Several other aspects of the article under consideration have practical import- ance, but the case law discloses no need for amendment or clariﬁcation of its wording.

42.27.*Article 125 reads as under:------

"125. To record an adjustment or satis- Thirty_3j;When the payment or adjustmen faction of a decree. days.' is made." I ' It corresponds to article 174 of the Act of 1908 and to article 173A of the Act of 1877. They read as under:-- ' Act of 1808 0 "I74. For the issue of a notice under Ninety When the payment or adjustment is the same Code, to show cause days. made."

why any payment made out of Court of any money payable under a decree or any adjustment of the decree should not be re-

corded as certiﬁed.

Act of 1877 "173. For the issue 01' a notie-.2 under section 258 of the same Code, to show cause why the payment or adjustment therein mentioned should not be recorded as certi-

ﬁed.

42.28., Some coiitruvcrsy exists as to the need [or formal application for recording an adoption. 'But the matter primarily relates to the law of procedure and an amendment in the form orsubstance of the Limitation Act would hardly be appropriate.

Ninety The date 01' the decree or order."

days.

89TH REPORT or LAw_coMMN. or INDIA ON THE LIMITATION ACT, 1963 217 (Chapter 42- ~-Articles /18 to /36: Applications in .s'pecI'ﬁecl cases) 42.29. Article 126 reads as under:/ Article 126.

"For the payment of the amount of a Thirty, The date of the decree."

decree by instalments. days.

Article 175 of the Act of 1908 read 'as under:~--

"For payment of the amount of a Six The date of the decree."

decreemby instalments. _ months.

"The period of limitation in this article has been cut down to 30 days as envisaged by the Law Commission in its Report on the Act of 1908'. The article needs no change. ~ \// 42.30. Article 127 reads as under:--~ ~''''i°'° 13?"

"To set aside a sale in execution of a Sixty The date of the sale."

decree, including any such application days. by a judgment-debtor. (Substi-

tuted in 1976 for "Thirty days")?

Article 166 of the Act of 1908 was as under 1--

"Under the same Code to set aside a Thirty The date of the sale.'' sale in execution of a decree, including days."

any. such application by a judgment-

debtor.

(The last seven words were added in 1927.) In the Act of 1877, article 172 read as under:--

-"By a purchaser at an execution-sale Sixty The dateoftlieralc. to set aside the sale on the ground that days.' ' the person whose interest in the pro-

perty purported to be sold had no saleable interest therein.

In the Act of 1871, article 159 read as under

"To set aside a sale in execution of :1 Thirty The date of the sale."

decree, on the ground of irregularity in days. publishing or conducting the sale.

42.31. A question arose in the past as to the applicability of this article to Insolvency an application to set aside a sale in insolvency proceedings. The Judicial Com-gggiffflfnfgj. missioner, Nagpur} held that the provisions of Order 21, Code of Civil Procedure, 1908 (Execution), were applicable to insolvency proceedings and the period of ' limitation applicable to a petition for setting aside a sale in insolvency proceedings must be thirty days under article 166 of the Limitation Act of 1908 (present article

127). But the Chief Court of Punjab took a contrary view,' and held that article 166 (Act of 1908) was not applicable to such an application, as it was not an application to set aside a sale in "execution of a decree" and that an application to set aside a sale that had been conducted by the court in realising the assets' 'Law Commission of India. 3rd Report (Limitation Act, 1908), page 88, article 49.

"Section 98, Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976'). 3Balaii v; Gopal Mali, A.I.R. 1927 Ng. 262. ~ 'Afzal Ali v. Aman Ali. A.I.R. 1914 Lab. 209- 218 Parties to the application-

joInder_ of.

Fraud-

antecedent or subsequent.

Effect of fraud of alone on decree holder auction-pun chaser alone.

89TH REPORT 01-' LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 42» Articles 118 to 136: Applications in speciﬁed cases) of the insolvent was governed by article 181 of the Limitation Act, 1908. These two are comparatively old cases, and since then, the controversy does not appear to have come on the surface during the last ﬁfty years. Hence no explanatory amendment on this _count appears to be needed.

42.32. Another controversy is concerned with the joinder of parties in an application under 0.21, Rule 92, C.P.C. The Patna High Court has held1 that the auction-purchaser is a necessary party to an application under Order 21, Rule 92, to set aside an execution sale and where he is not made a party within the time allowed, the application cannot be entertained. A contrary view has been taken by Rajasthan High Court, holding'-' that it is not_necessary to mention the name of the party in the heading of the application and if any party is left out, it is the duty of the Court to give notice under the proviso to 0.21, R.92(2) C.P.C. and the application would not be barred by limitation. Since the passing. of the Limitation Act in 1963, this article has not given rise to any controversy and the above solitary conﬂict need not detain us.

I 42.33. Then, there is the question of fraud, be antecedent and subsequent. In one case,' the Kerala High Court has observed that on principle, if the fraud antecedent to the sale was of such a nature as to sulﬁce for the requirements of section 18 (Lim'itation_Act, 1908), such fraud could not be dismissed from consi- deration as having had its origin earlier. However. the Patna High Court' has held that the petitioner must satisfy the court that he had been kept from the knowledge of his right to ﬁle an application and that his right to set aside the sale occurred after the sale. The Court further observed that fraud prepetrated by the opposite party must be a fraud committed after the sale, and not a fraud committed in bringing about the sale. In this context, section 17 of the Limitation Act, 1963 doesinot differentiate between antecedent fraud and subse- quent fraud. The limitation runs from the time the applicant has discovered the fraud or could, with reasonable diligence, have discovered it. In the absence of further case law on the point, we would leave the matter at that.

\ 42.34. A question has arisen whether the fraud of the decree-holder alone or of the auction-purchaser alone would be suﬂicient to extend the period of limita- tion. The Mysore High Court holds5 that section 18 (of the Act of 1908), could be attracted where the fraud in question was practised either by the decree-holder or by the auctio.n~purchaser. In a Calcutta case,' it was held that a judgment debtor was not entitled to the beneﬁt of section 18 for the purpose of making an application under 0.2]. R.90, C.P.C. to set aside an execution sale, if the decree- holder was not a party to the fraud alleged. In an Allahabad Full Bench case', the view taken is that fraud of the decree-holder suﬂices and that it is immaterial whether the decree-holder alone is guilty of the fraud. or whether the auction- purchaser was also a party to the fraud.

K.S. Hegde J. (in the Mysore case" referred to above) has taken stock of the judicial opinion on the subject and concluded as under:--

1Sumitra Kaur v. Damri Lall, A.I.R. 1921 Pat. 498.

'Al-ladin v. Karimbux, A.I.R. 1955 Raj. 51.

3Malhan Simon V. Ouseph looka, A.I.R. 1964 Ker 88, 89, 90 Para 3.

'Jagdhar Missir V. Dharai Kharwa, A.I.R. 1920 Pat. 725.

5D. Veerappa v. Bangarappa, A.I.R. 1960 Mys. 297.

'Azizunnessa V. Dwarika Prasad, A.I.R. 1925 Cal. 1227, 1228. "

"Mt.,Balkesha Kunwar v. Harakh Chand, A.I.R. 1934 All 255, 258; I.L.R. 56 All 613 (F.B.) 'Veerappa v. Bangarappa, A.I.R. 1960 Mys 297, 299, l.L.R. (1960) Mys. 324.

I I 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 219 (Chapter 42--~ -Articles 118 to 136: Applications in speciﬁed cases.) "Both on principle and on preponderance of judicial authority, it appears to me that the correct view is that section 28 of the Limitation Act (of 1908) is applicable where the fraud in question is practised either by the decree- holder or by the auction-purchaser."

The controversy really appertains to section 17 of the present Act. Much may depend on the manner in which the parties are arrayed and other relevant facts. In view of this, We do not recommend any amendment on this point.

p\/42.35. However, we should refer to a connected provision in the Code of F_.ccommenda- Civil Procedure, 1908, which seems to need amendment. Article 127 of the :{_'"9£;)t° 0'21' Limitation Act is concerned with applications, in regard to which 0.21, R.92(2) of C.P.C.

the Code is relevant. The period of limitation for an application under article 127 is sixty days, after its amendment1 in 1976. The application is to be accom- panied by a deposit. The period for making the required deposit under 0.21, R.92. C.P.C. is, however, still thirty days. This disharmony between the two statutory provisions should be removed. We may point out that the disharmony has been adverted to in a recent judgment of the Kerala High Court" also. To remove this discrepancy, .we recommend that 0.21, R.92(2) of the Code of Civil Procedure, 1908, should be suitably amended by increasing the period from 30 days to 60 daysi.

42.36. We now turn to article 128. which reads as under :-- A"i°1¢ 123-

"For possession by one dispossessed Thirty 'The date of the dispossession."

of immovable property and disputing days.

the right of the decree holder or pur- ' , chaser at a sale in execution of a decree.

Article 165 of the Act of 1908 read as under:---

"Under the Code of Civil Procedure, Thirty The date of the dispossession."

1908 by a person dispossessed of im- days.

. movable property and disputing the right of the decree-holder or purchaser at a sale in execution of a decree to be put into possession.

In the Act of 1877, article 165 was in identical terms. In the Actiof 1871 also, article 158 was in identical terms. ' ' g 42.37. Certain controversies on this article have ceased to be relevant after N0 Chaﬂltéed the 1976 amendment of the Code of Civil Procedure, 1908, 0.21, R.100. In view rccommcn ' of this position, we do not see any reason to recommend any change in the article.

' 42.38. Article 129 reads as under :--

"For possession after removing resis- Thirty The date of resistance or obstruc- tance or obstruction to delivery or days. tion."

possession of immovable property de-

creed or sold in execution of a decree.

In the Act of 1908, article 167 read as under:----

"Complaining ofresistance or obstruc-' Thirty The date of the resistance or obst- tion to delivery of possession of im- days. ruction."

movable property decreed or sold in execution of a dectee.

Article 129.

'Section 98, Code. of Civil Procedure (Amendment?) Act, 1976. 2Dakshayini v. Madhavan, A.I.R. 1982 Ker. 126 (June). ',''To be carried out under 0.2], R. 92(2), Code of Civil Procedure, 1908.

30-14 M of LJ&CA/ND/83 / 220 89111 REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, T1963 \-

V (Chapter 42----Art1'cles 118 to 136: Applications in speciﬁed cases.) 1 In the Act of 1878, article 167 read as under :--« "Complaining of resistance or obst- Thirty The date of the resistance, obstruc- ruction to delivery of possession of days. tion or dispossession." immovable property decreed or sold -

in execution of a decree, or of posses-

sion in the delivery of possession "to the decree holder or the purchaser » of such property.

In the Act of 1871, article 160 read as under :

"Complaining of resistance or obst-- Thirty The date of the resistance, obstruc-' l motion to delivery of possession of days. 'tion or dispossession."

immovable property sold in execu-

tion of a decree, or of dispossession * in the delivery of possession to the purchaser of such property.

Staftins 42.39. There is some debate in the case law about the starting point in regard 9°"! °f to fresh obstructions. The Madras High Court has held that an application' limitation.

' for the removal of a second obstruction, mademore than thirty days after aoquiele cence in a previous obstruction, was not barred by article 167 (of the Act of 1908) and such' acquiescence did not deprive the person entitled to possession of any further right to obtain execution. The Calcutta High Court held" that the auction- ; purchaser was not limited to one application under 0.12, Rule 95, C.P.C. and the period of 30 days prescribed by article 167 (Act of 1908) was to be counted from the date of the resistance or obstruction in respect of which the complaint was made. However, the Bombay High Court has held? that the time limit for a subsequent application in respect of an obstruction by the same person would count from the earlier obstruction. -

42.40. The Bombay view has been expressly dissented from in a Gujarat case,' on the ground that though the Bombay ruling was a Full Bench decision the observations in that ruling were obiter. The Gujarat HighACourt held that since the law allows the decree-holder to make a second application for execution and to complain about the obstruction within 30 days from the date of resistance or obstruction, it was immaterial whether the decree-holder came, or failed to come, to court within 30 days of the date of the first obstruction. In view of the fact that _the observations in the Bombay case were obiter, we make no recommenda- tion regarding any change therein.

42.41. This takes us to article 130 which reads as under :~ article 130- ﬁ:f,f'mm"da- ' "130.,For leave to appeal as a pauper----

(a) to the High Court Sixty The date of decree appealed from.

days.

(b) to any other court. ",I'l&irty The date of decree appealed from." -.5 ays. , 'Mayappan Cherry V. Mayappan Servai, A.I.R. "1921 Mad. 559, S61.

'Burma Sundari Devi v. Kiranshashi Chodhaurani, A.I.R. 1938 Cal. 352 cf. A.I.R.' 1959 Cal. 613, 615 and Kedar V. Baijnath, A.I.R. 1939 Cal. 494.

'Mukand Babu v. Tanu Sabbu, A.I.R. 1933 Born. 457 ('F.B.) 'Marzeklal v. Ochhavlal, A.I.R. 1970 G11]. 49, 50, I0 Gui. LR. 654.

89m REPORT or LAW COMMN. or mom ON THE LIMITATION ACT, 1963 221 (Chapter 42--»Articles 118 to 136: Applications in speciﬁed cases.) Article 170 of the 1908 Act, article 170 of the 1877 Act and article 162 of the 1871 Act read as under:-- ' "I70; For leave to appeal as a pauper T "'rty The date of the decreeappealed . ays. from.

170. For leave to appeal asa pauper. Thirty The date of the decree appealed days. against. V ' 2162. For leave to appealas a pauper. Ninety The date of the decree appealed days. against." -

42.42. Prior to 1963, a uniform period of limitation of 30 days was prescribed P(')':i't1i%?]3 for an application for 'leave to appeal as a pauper. The present article provides ' ' for two different periods, namely, 60 days and 30 days. The change was made at the committee stage.

42.43. We are of the view thatjthe period prescribed for such leave should R¢°°mm¢nd3- be the same as that prescribed for the appeal, and that this principle should be §{2§cf§ :30 vappliedto all courts. Such a procedure should, we believe. work smoothly. If ultimately the leave to appeal as an indigent person is granted. the application can be converted into an appeal. If such leave is not granted. the court would generally grant time for the payment of court fees and (where the limitation period for appeal has already expired), allow condonation of delay under section

5. In either case, a period identical with the period prescribed for the appeal itself would cause no inconvenience.

Accordingly, we recommend that article 130 should be revised as under:---

"l30. For leave to appeal as an indi- The same period as is prescribed The date gent person to any court. ' for the appeal in respect ofwhich of decree ' ' the leave is sought. appealed from."

42.44. This takes us to article 131. It reads as under :-- ' Article 131'.

"To any court for me exercise of its Ninety The date of the (.'lLCI€€ or order or wers of revision under the Code of days. sentence sought to be revised."

Civil Procedure, 1908, or the Code of Criminal Procedure, 1898.

There was no corresponding provision in the earlier enactments. though the practice of the High Courts generally laid down a time limit of 90 days.' The Law Commission, in its Report' on the Act of 1908. recommended the incorpora-

tion of a new provision for making an application to any court for the exercise of its powers, of revision under the C.P.C. or Cr.P.C. and recommended a period of limitation of 30 days. The Joint Committee, in its Report, however. observed that the period of thirty days was too short and recommended that it should be ninety days. That is how the article came to be _enacted.

42.45. A question concerning e starting point under article 131 needs atten- case, 13w 55 tion. In framing this article, it was presumed that the aggrieved person would tiiitfﬂiﬂﬁ be so connected with the proceedings affecting him that the date of the decree ' A or order or sentence passed in the proceeding will be known to him immediately, because _he would (in all probability) be present in court at the relevant time, or will be notiﬁed by his counsel about the order affecting him. But this is not 'Law, Commission of India, 3rd Report (Limitation Act, 1908), page 89. suggested article 57.

222 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION Aer, 1963 (Chapter 42;--Articles 1/8 to 136: Applications in speciﬁed cases.) always the case in reality. A Gujarat caseillustrates the matter.' An auto rick- shaw was seized as a conveyance used for theft. The rickshaw was the subject matter of hire purchase. Neither the eal owner of the auto rickshaw, nor the one to whom it wasgiven on hire purc%se, was directly connected with the case ' relating to theft. A revision was preferred by one Balamal against the order of seizure of the auto rickshaw. It was discovered that if article 131 was to be , taken literally, the revision would be barred by time, as being beyond ninety days of the date on which the order of seizure was passed. ' .Shelat J. (as he then was), realising the hardship that would arise if column 3 of the article were given a literal meaning, relied upon the observations of the Supreme Court in an earlier case" where the expression "the date of the award"

in section 18(2) of the Land Acquisition Act, 1894, was construed as requiring either actual or constructive knowledge of the order. Such knowledge was an

-- essential requirement for fair play and natural justice. The Supreme Court had.

in that case, refused to put a literal or mechanical constru'ction on the expression "from the date of the Collector's award", need in the proviso to section 18. On -

the basis of this reasoning, Shelat, J. held that it would be reasonable and fair that the period of ninety days (in article 131) should also run from the date of ' the knowledge of the order, and not from the date of the order.

Igecommerrdw 42.46. With a view to preventing recurrence of the injustice which may re- "°"- ' suit from a mechanical construction being placed on the language occurring in column 3 of article 131, we recommend that column 3 of the article should be revised as follows:---- 1 ' I "When thelapplicant had knowledge of the decree or order or sentence sought '- to be revised." A » In the first column of the article, the reference to the Code of Crimin Procedure, 1898, should be replaced by a reference to the present Code of 1973.

Article 132. 42.47. Article 132 reads as under :-- , ' "l32. To the High Court for a certi- Sixty The date of the decree, order or ﬁcate of ﬁtness to appeal to the- days. sentence."

Supreme Court, under clause (1) of article 132, article 133 or sub-

clause (e) of elause (I) of article 134 of the Constitution or under ' any other law for the time being in force.

Articles 153 and 179 of the 1908 Act read as under:----

"l53. Under the same Code to a High Thirty The date of the order."

Court from an order of a Sub- days.

ordinate Court refusing leave to appeal to His Majesty in Council.

"l79. By a person desiring to appeal Ninety The date of the decree appealed under the Code of Civil Proce- days. from."

'dure, 1908 to His Majesty in , Council for leave to appeal. \ In the Act of 1877, articles 153 and 177 read as under: --

"I53. Under the same Code, section Thirty ' The date of the order refusing the 601, to 3 High Court. days. certiﬁcate.

1Balamal v. State of Gujarat, A.l.R. 1970 _Guj. 26 29. 30 (1970) C1-_ L',]_ 45_ 'Harish Chandra V. Deputy Land Acquisition Oﬁcer, A LR. 1961 S.C. 1500.

1 under : ---

89rH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 223 (Chapter 42» -Articles 118 to 136: Applications in specified cases.)

177. For the admission ofan appeal to Six Tl1e_datc of the decree appealed . Her Majesty in Council. months agatnstﬁ' M 42.48. The Law Commission, in its Report on the Act of 1908 observed,' l_-51W Eomfrliir that new provisions prescribing periods of limitation were necessary for making "on em ' applications to the High Court for a certiﬁcate of ﬁtness to appeal to the Supreme Court. Article 179 of the Limitation Act, 1908, as it then stood, provided a period of 90 days for an application under the Code of Civil" Procedure and did not prescribe a period of limitation for other applications. _The Law Commission recommended that a comprehensive provisions should be made as to the limita- tion for applications to the High Court for a certiﬁcate of ﬁtness 'for appeal to the Supreme Court, and that, for all such applications a period of 30 days might be prescribed. But the Joint Committee felt that the period of 30 days was too short and that the period should be 60 daysf "

42.49. This newly added provision has not given rise to any controversy. Recommenda- However, in view of the amendments that have been made in the CoI1stitution""°"' it would be proper to revise the wording of article 132 of the 'Limitation Act so as to make it conform to the changed constitutional phraseology.

Accordingly, we recommend a redrait of the first column of article 152 as I Articie 132, First Column (Revised) _ "To the High Court for a certiﬁcate of the nature referred to in clause (1) of article 132, clause (1) of article 133 or sub-clause (c) of clause (1) of article 134 of the Constitution, read with article 134A thereof, or under any other law for the time being in force."

42.50. This takes us to article 133, which reads as under :-- 1 Article 133-

"To the Supreme Court for special leave to appeal'----

(a) ina case involving death sen- Sixty The date of the judgment, ﬁnal or-

tenee. days. der or sentence.

(b) in a case where leave to appeal Sixty The date of the order of refusal. was refused by the High days. ' ~ Court;

((2) in any other case. Ninety The date of the judgment or order." days. V' 'I There was no corresponding provision in the earlier Acts. ' i » 42.51. The Law Commission had, in its Report" on the Act of 1908, recom- Report of mended a period of limitation of 30 days in respect of applications to the Supreme t(1§§mL,:}:si°n_ Court for special leave in a case involving death sentence. The Joint Committee, "

however, felt that the period was too short, and that it should be sixty days.

42.52. With reference to this article, a suggestion of the Supreme Court has Suggestion of been forwarded to the Law Commission by the Legislative Department, being a g'§u§t"""'"' 'Law Commission of India, 3rd Report (Liinitation Act, 1908), page 64, para 169.

'Articles 132, 133, 134 and 134A of the Constitution.

'Law Commission on India, 3rd Report {Limitation Act. 1908), pages 90, 168-169, article S9(a). _ » 224 89TH REPORT or LAW COMNlN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter '42--~Articles 118 to 136: Applications in speciﬁed eases.) suggestion made by the Registrar of the Supreme Court' for amendn'1ent'of'the article in regard to cases where a party against whom a judgment or order has been pronounced by the High Court applies orally for a certiﬁcate of ﬁtness to appeal. The diﬂiculty felt in regard to this article may be thus stated in brief. In some cases, in the High Court a request for a certiﬁcate of ﬁtness for appeal to the Supreme Court is made by counsel orally. When this oral request is refus- ed, the question as to whether a petition for special leave to appeal to the Sup- reme Court can be ﬁled in the Supreme Court within 60 days---clause (b) of article 133 or within 90 days-clause (c) of article 133 of the Limitation Act--has arisen. Under article 133(b), which deals with the cases of refusal of leave to appeal by the High Court, the period of limitation is 60 days. Under article l33(c), which applies "in any other case", the period of limitation is 90 days. The period of 60 days mentioned in article 133, clause (b) is to be counted from the date of the order of refusal (by the High Court), while the period of 90 days mentioned in article 133, clause (c), is to be counted from the date of the judgment or order of the High Court. Once the High Court refuses leave (the correct expression is "certiﬁcate"), clause (b) would presumably apply and the proceeding canbe "ﬁled. in the Supreme Court only within 60 days from the date of refusal of the certiﬁ- _cate. But, by adopting this course, the litigant is deprived of the beneﬁt of the longer period of 90 days, which would, under article l33(c), have been available to him, if he had come directly to the Supreme Court for special leave. No doubt, the Supreme Court can condone the delay under section 5 of the Limitation Act in such cases, but in order to avoid unnecessary applications under section 5, it has been suggested that it is better to provide that in such contingencies the peti- V tioner shall have the beneﬁt of limitation whichever is more beneﬁcial to That means that where the date of order refusing a certiﬁcate and the date of the judgment appealed from are the same, the petition for special leave to appeal to the Supreme Court may be ﬁled within 90 days. The Registrar of the Supreme Court has requested the Government to take appropriate steps for suitably amend- ing the Limitation Act for bringing out above position.

- Cons_tituiio_I-Ia1- 42.53. We have carefully considered this suggestion, and are in broad agree» £;':é£"ma5 '° ment with it. Before we make our concrete recommendations in this behalf, it Supreme Court. may be convenient to set out brieﬂy the constitutional position. Under article 136 of the Constitution, the Supreme Court may, in its discretion, grant special leave to appeal from any, judgment, decree, determination, sentence or order! in any cause or matter, passed or made by any court or tribunal in the territory of India--with the exception of a court or tribunal constituted by or under any law _ relating to the armed forces. In regard to judgments of High Courts, an appeal ' to the Supreme Court lies under article 132(1), 133(1) and 134(1) of the Constitu- tion in the speciﬁed cases on a speciﬁed' ground, where the High Court gives the requisite certiﬁcate under article 134A of the Constitution. In certain criminal cases involving a sentence of death, an appeal lies to the Supreme Court under. -

article 134(1) (a) and (b). even without a certiﬁcate. Further, article 134(2) and article 135_ deal with appellate jurisdiction conferred on the Supreme Court by Parliament by legislation and appellate jurisdiction in any matter exercisable by the Supreme Court inherited from the Federal Court, respectively. But we are concerned only with appeals where a certiﬁcate can be applied for.

Position 42.54.: Now, while appeals from courts other than the High Court to the L.n"'i'mi°n_ Supreme Court under article 136 would, as regards the position for special leave ﬁled in the Supreme Court, be governed by article 133(0) of the Limitation Act,-

'Letter from the Registrar (Judicial). Supreme Court of India to the Secretary.' Government, Ministry of Law. Justice & Company Affairs dated 28th January, -T9u.,\ copy forwarded to the Law Commission by the Legislative Department under its O.M§"\ No. 11 (14)/82/Leg.\II dated 24th August, 1982.

' REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 (Chapter 42~Articles 118 to 136: Applications in speciﬁed cases.) or in the rare case of death sentence imposed by some special court under statute byarticle l33(a) of Limitation Act--applications for leave to appeal from judg-

-ments and orders of the High Court by special leave can fall either under article l33(b) of the Limitation Act or under article l33(c) of that Act." If the certiﬁcate is applied for in the High Court and refused, clause (b) becomes applicable and only 60 days, it seems, would be available from the date of the order of refusal, while, if a direct application had been made to the Supreme Court, clause (c) would apply, giving a period of 90 days. This 90 days period is counted from the date of the judgment or order. Where the date of the order of refusal is much later than the date of the judgmentior order of the High Court, the litigant may stand to gain by relying on clause (b), but where the two are simultaneous, he would stand to lose if clause (b) is applied. This is the anomaly which is sought to be removed by the suggestion made by the Registrar of the Supreme Court, referred to above. As far as we could understand, it is not the intention Jllat clause (c) of article 133 should be disturbed, the only change desired is to ensure that the litigant whose application in the High Court for certiﬁcate is re- fused should get 90 days from the date of the judgment. if the judgment.of the High Court and the order of refusal are simultaneous. We do not see any objec- tion to. the. acceptance of this suggestion and are recommending a re-draft of article 133 to achieve the object. ' ~ 42.55. It should be mentioned at this stage, that under article 134A of the 3'-_"5°1° 1345- Constitution, every High Court passing or making a judgment etc. (appealable on Constitution, certiﬁcate)----

"(a) may, if it deems ﬁt so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party agg~ rieved. immediately after passing or making of such judgment, decree, ﬁnal order or sentence,"

determine, "as soon as may be after such passing or making", the question whe- ther the certiﬁcate in question should be given in respect of that case. Thus, the Constitution contemplates that the grant or refusal of certiﬁcate shall be "as/soon as may be" after-the passing of the judgment etc.. It can be presumed that in most cases the grant or refusal would be simultaneous or at least within a very short time. Hence. the amendment which we areicontemplating would be of some practical utility. ' I 42.56. Accordingly, we recommend that article l33.of the Limitation Act Igecommenda- should be revised as under: ' "°"-

"I33. To the Supreme Court for special leave to appeal.

(a) in a case involving death Sixty The date of the judgment, ﬁnal sentence; days. order or sentence.

(b) in a case where a certificate Sixty The date of the order of refusal.

of the nature referred to in days.

article 134A of the Consti-

tution was refused by the High Court and the Order of refusal was passed on a date later .than' the judgment or order in respect of which such leave was applied for.

226

Article 134.

Reduction of period in 1963.

No change needed.

Article 135.

39TH REPORT or LAW. COMMN. or INDIA ON_ THE LIMITATION ACT, 1963 (Chapter 42~Ar!icles 118 to 136: Applications in speciﬁed cases.) (bb) in a case where a certiﬁcate Ninety The date of the judgment or order. of )9 tness of the nature referred days.

to in article 134.4 of the.Cons-

titution was refused by the High Court, and the order of refusal was passed on the same date as the judgment or order in respect of which such leave was applied for.

days.

\ 42.57. This takes us to article 134, which reads as under : V "For delivery of possession by a pur-- One When the sale becomes absolute."

chaser of immovable property at a year. .

a 'sale in execution of a decree.

3, Article .180 of thke Act of 1908 read as under:

"By a purchaser of immovable pro- Three When the sale becomes absolute."

perty at a sale .in execution of a decree years. for delivery of -possession.

There was nocorresponding provision in the Acts of 1871 and 1877.

42.44. The period of Limitation (provided in article 180 of the Act of 1908) has been reduced in 1963 to one year, upon the recommendation of the Law Commission.' The Statement of Objects and Reasons annexed to the Bill states' the reasons as under: ' "As existing article 182 is being omitted, article 180 A (which the proposed article 133 (now article 134) seeks to replace, will apply to all purchasers in execution whether decree-holder or not. The period, however. is being re- duced to one year from three years."

42.58. Certain controversies pertaining tothis article have lost their impor- tance after the amendment of 0.21, R. 97-101 of the Code of Civil Procedure in 1976. No change is, therefore, needed in the article.

42.59. Article 135 reads as under :

'.'For the enforcement of a decree Three The date of the decree or where a granting a mandatory injunction. years. date is ﬁxed for performance, , -- such date."

There was no corresponding provision in the earlier enactments. The Law' Commission in its Report on the earlier.Act, recommended a period of three years in the case of mandatory injunctions.

Accordingly, this proviﬁon came to be enacted in 1963.

42.60. The provision has not given rise to any controversy, and hence no change is necessary. It may be mentioned that applications for such relief are excluded from general article as to execution--article 13'. ' 'Law Commission of India, 3rd Report (Limitation Act of 1908) page 67, para 180.

2Statement of Objects and Reasons, Limitation Bill, 1962. V 3Law Commission of India, 3rd Report (Limitation Act, 1908), page 65, para 170., 'Paragraph 42.61 infra.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 42-----Artic/es 118 to 136: Applications in speciﬁed cases.) 42.61. Article 136 reads as under : Article 136' "l36. For the execution of any decree Twelve Where the decree or order becomes (other than a decree granting a years. enforceable or where the decree or mandatory injunction) or order any subsequent order directs any of any civil court. payment of money or the deli-

very of any property to be made at a certain date or at recurring peI'ic-ds, when default in making ._the payment or delivery in respect or which execution is sought, takes place, provided that an application for the enforcement. or \ execution of a decree granting a pcrpettral injtinction shall not be subject to any period of limita-

tion."

Corresponding provisions in the Act of 1908 were contained in articles 182 and 183, which were much more elaborate. As the entire scheme has been chang~ ed, no useful purpose would be served by quoting the earlier provisions.

Parallel provisions in the Act of 1877 were contained in articles 179 and 180, which also need not be quoted. Parallel provisions in the Act of 1871 were contained in articles 167 , 168 and 169.

on the Act of 1908, observed as Law Commis-

42.62. The Law Commission. in its Report' . , sion s Report.

under, with reference to article 182 (applications for executions):

"l70. Article 182 has been a very fruitful source of litigation and is a wea- pon in the hands of both the dishonest decree-holder and the dishonest judg- ment debtor. It has given rise to innumerable decisions. The commentary_ in Rustomji's Limitation Act (5th Edn.) on this article itself covers nearly 200 pages. In our opinion the maximum period of limitation for the execu- tion of a decree or order of any civil court should be 12 years from the date when the decree. or order became enforceable (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 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. Tire is, therefore, no need for a provision compelling the decree-holder to keep the decree alive by making an application every three years. There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable after a period 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 provision enabling-the execution of a decree ' after that period. To this provision an exception will have to be made to the eﬂ"ect'-- that the court may order the execution of a decree upon an appli- cation 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 preceding the date of the application. Section 48 of the Civil Procedure Code may be' deleted and its provisions may be incorporated in this Act. Article 183 should be deleted..."

In pursuance of the aforesaid recommendation, the present article has enacted in place of articles 182 and 183 of the 1908 Act. Section 48, Code of Civil Procedure 1908 has been repealed;

'Law Commission of India, 3rd Report, i(Limitation Act, 1908), pages 64-65, para 170. / 31--14 M of LJ&.CA[ND/83 227 228 No change needed.

Article 137.

Scope of the article.

Scope of article 137- special laws.

. "60. Other applications for which no ' Three 89rH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 42~/lrticies /18 to 136: Applications in speciﬁed cases.) Chapter Other Applications) ' (Chapter. 43--Article 137 : Other Applications) 42.63. There is extensive case law on the corresponding articles of the earlier Act; and we have examined a large number of those cases. We ﬁnd that most of the controversies that once arose now do not survive, the matter having been either settled by subsequent Supreme Court decisions or clariﬁed or rendered obsolete by the changes made by the Act of 1963. Hence, no change is needed in the article under consideration.

CHAPTER 43 ARTICLE 137 : OTHER APPLrCATId§1s 43.1. Article 137 reads as under-.--

"I37. Any other application for which Three no period of limitation is provided year s.

elsewhere in this Division.

When the right to apply accrues."

This article corresponds to article 178 of Act 15 of 1877 and article 181 of the Act of 1908. The latter article was as follows:--~ "l8l. Applicationsfor which no period Three When the right to apply accrues." of limitation is provided else- years.

where in this schedule or by sec-

tion 48 of the Code of Civil Pr'o-

cedure, 1908 (5 of 1908).' 43.2. The recommendation of the Law Commission of India, in its Report on the Act of 1908,' was to have a residuary article for applications (including prohibitions) as in thecase of suits. The period was to be the same as in the Act of 1908, namely three years from the date when the right to apply accrues. But the description of the applications appearing in the ﬁrst column, as recom- mended by the Law Commission was in a wider language than the Act of 1908. The matter will be clear from the following extract from the Annexure to the Report of the Law Commission, which showed in a concrete form its recom- mendation on the subject :-- ' When the right to apply accrues."

period of limitation is provided years. .

by any 'zaw for the time being in force.

Earlier, _by that Report, while dealing with the ambit of the word "applica- tion" (which was not deﬁned in the Act of 1908), the Law Commission had made"

the following recommendations: A ' "We recommend that a new deﬁnition of the word 'application' as to include any petition original or otherwise, should be 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."

43.3. The Act of 1963, as enacted, however, .does not carry out fully the the recommendation made by the Law Commission in the above mentioned Re- port, as regards the residuary articles. A controversy therefore arose whether 'Law Commission of India, 3rd Report (Limitation Act, 1908), page _67, para 181 and page 90, article 60. ' 'Law Commission of India, 3rd Report (Limitation Act 1908) page 5, para 9 and page 90, article 60.

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 43--ArticIe 137 : Other Applications) the new article was intended for applications under special laws'. It was in 1977 that the controversy was resolvedz, by a decision of the Supreme Court. '1 his decision of 1977 has practically overruled as much of an earlier decision of the Supreme Court as had held that the article did not apply to applications under special laws?-' However, that part of the earlier decision of the Supreme Court which had held that article 137 does not apply to bodies other than courts seems still to hold the ﬁeld?

Courts and other bodies.

43.4. It is now necessary to refer to another aspect of the article under dis- cussion. It is connected with the distinction between courts and tribunals. By way of analogy, it is of interest to refer to the text of article 227 of the Constitution, Article 227, as amended by the Forty-second Amendment, reads:--

"Every High Court shall have superintendence over all courts subject to its appellate jurisdiction." \ Earlier, article 227 was in these terms : ---

"Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises )LlLi5diCti0I!."

43.5. The effect of the deletion of the word "tribunals" came up in article 229 for consideration before a Full Bench of Bombay High Court'. The Court observed:--~ ' "In the first place, neither the expression 'court' nor the expression 'tribunal' has been deﬁned in the Constitution and therefore, the dictionary meaning or the normal connotation of these expressions will have to be considered. Secondly, the proposition is,well-settled that all "courts are tribunals. but all tribunals are not courts. If necessary, reference may be made to Justice Hidayatullah's judgment in Harinagar Sugar Millsiv. Shyam Sunder' where the above proposition has been clearly stated; the proposition in other words means that some tribunals would be basically courts, i.e, courts in their normal connotation, while some others would not be courts and therefore it cannot be said that Parliament wanted to exclude all tribunals from the pur- view of the High Court's superintendence under the amended Article 227. but it can be said that Parliament intended to exclude only such tribunals as are not basically courts from the High Court's superintendence."

43.6. In M. Joshi v. Life Insurance Corporation of India3 the Suprme Court held that article 137 of the Limitation Act, 1963, contemplates only applications to courts and the scheme of the Act is, that it deals only with applications to courts, and the Labour court is not a 'court' within the Limitation Act, 1963.

43.7. All the same, the observations of the Supreme Court in Athanis case"

to the effect that article 137 does not apply to proceedings before bodies other than courts (such as quasi--judicial tribunals and executive bodies), could not be 'As to "application", see Beeravu v. Kathiyamma, A.I.R. 1973 Ker. 226.

2Kerala State Electricity Board v. T. P. Kunhiliumma; A.I.R. 1977 SC. 282.

3Athani Municipality v. Presiding Ofﬁcer, Labour Court, Hubli, A.I.R. 1969 SC. 1335. 'Forsa Zreview of the earlier cases, see Mirza Ghouse Baig, "Article 135, etc." (1977) 2 M-L.J. 1 , 1.

5See also M. Joshi v. L.I.C., (1969) 2 S.C.J. 749. ax 'S. D. Ghatge v. State of Maharashtra, A.I.R. 1977 Bombay 384 (F.B.).' 7HarI'nagar Sugar Mills v. Shyam Sunder, A.I.R. 1961 S.C. 1669.

3M. Joshi \L Life Insurance Corporation of India (1969) 2 S.C.J. 749.

'A.I.R. 1969 S.C. 1035 ~ Article 227, Constitution.

Tribunal.

Article 137, Limitation Act, '1963.

229 230

39TH REPORT or LAW COMMN. or INDIA ox THE LIMETATION ACT, 1963 (Chapter 43-- Article 137 :_ Other Applications) effected, for reasons which the Court itself gives in the Kerala State Electricity Board's case'.

"But it has to be an application to a Court for the reason /that sections 4 and 8 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appel- lant satisfies the Court that he had suﬂicient cause for not preferring the appeal or making the application during such period."

43.8. Before the pronouncement of the Supreme Court in the Kcrala State Electricity Board case', the High Courts, by an ingenious application of the prin- ciples of interpretation of statutes, tried to mitigate the hardships suffered by litigants seeking redress before quasi-judicial bodies and tribunals which could not fall within the meaning of the expression 'court'. But there again, it is the' same story of reversed judgments. For example, in one of the cases''', the Alla- habad High Court observed that though section 14 of the Limitation Act does not, in terms, apply to proceedings under the Sales Tax Act, its principle may apply to them and an assessee may be able, in a subsequent proceeding, to ex- clude the time spent in an earlier proceedings. This view was based on an ear- lier Full Bench decision of the same High Court.' But in that case also the dis- senting Judge had struck a strong discordant note:

''In the absence of any statutory provision for enlarging the time, the time cannot be enlarged on the basis of some principle of equity, justice or good 'conscience. The principle of s. 14 by analogy can be applied by courts on the basis of justice, equity and good conscience only if there is no maximum limit ﬁxed by the statute for extending the period of limitation. If the tri- bunal applies the principles of s. 14 of the Limitation Act for computing the period of limitation for the revision, it will, in the guise of computing the period of limitation, extend and enlarge the time for ﬁling the revision beyond the limit permitted by s. 10 (3-B) of the U.P. Sales Tax Act. When limitation is prescribed by a special law and the provisions of the nature of s. 14 have not been incorporated there, it would be outside the scope of the tribunal created by the statute to import the provisions of s. 14 of the Limi- tation Act by analogy and thereby virtually amend the provisions limiting . the power to enlarge the period of limitation."

The Pars0n Tools case' went up in appeal by special leave to the Supreme Court, which reversed the majority judgment and held that the appellate authority and the Judge (Revisions) (Sales Tax), exercising jurisdiction under the U.P. Sales Tax Act, were not Courts, but were merely admimstrative tribunals. In view thereof, it was held that section 14 of the Limitation Act did not, in terms apply to proceedings before such tribunals. The Supreme Court also negatived the theory (propounded by the Allahabad High Court) that even though section 14, in terms, did not apply to proceedings before sales tax authorities, its principle 'should apply. After scanning the scheme and language of the U.P. State Sales Tax Act, the Supreme Court observed as under :----

"These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be import- ed into it by analogy. An enactment being the will of the Legislature, the 'A.l.R. 1977 S.C. 282. -

'''Kerala State Electricity Board, A.l.R._ 1977 SC. 282.

35, C. N, Kumar v. Sales Tax Commrsisoner, U.P. (1973) Tax Law Reports 2307 (Allaha- bad) 'Commissioner of Sales T ax v. Parson Tools and Plants A.l.R. 1970 Allahabad 428, "courts". ' ' .

439 (for later stages of the case. see infra.) 5Parsan Tools v. C.S.T. (1976) S': I 242, 247.

89rH REPORT or LAW COMMN. or 1ND1A ON THE LIMITATION ACT, 1963 231 (Chapter 43~--Artic/e 137 : Other Applications.) paramount rule of interpretation which overrides all others is that a statute is to be expounded according to the intent of them that made it."

43.9. ln another case,' the Supreme Court has made a departure from its earlier stand about the applicability of the Limitation Act to Tribunals andheld that section 12(2) of the Limitation Act, 1963, was applicable to proceedings before the Judge (Revisions), Sales Tax.

43.10. It is possible that the Supreme Court may revise its thinking and take a liberal view as regards the applicability of other provisions of the Limitation Act to Tribunals.

43.11. The Allahabad High Court had held that the provisions of section 12 High Court of the Limitation Act did not apply to the proceedings before a Registrar, eases asuto because a Registrar acting under the Registration Act is not a "Court", as no Courts' judicial functions are exercised by him. The controversy arose because the sub-Registrar refused to register a sale deed, against which refusal the aggrieved party moved the District Registrar under section 73(1) of the Registration Act, 1908. The District Registrar gave the beneﬁt of section 12, limitation Act, to the vendee. The High Court reversed-' the judgement.

43.12. The Kerala High Court in U. Chacko v". P. Marakkar3 held that the appellate authority under the Kerala Buildings (Lease and Rent Control) Act is not a "court", and where an appeal under the Rent Control Act is barred by the Limitation, that authority has no power to condone delay under section 5 of the Limitation Act. The High Court also held that the principle of section 14 of the Act cannot be extended by analogy where, owing to uncertainty in the identity of the forum where the appeal had to be preferred, the appellant ﬂitted 7 between one court and to another.

'.1 43.13. Similar view was expressed by the Madras High Court,' holding that the Rent Controller and Appellate Authority under the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 are not courts and therefore sections 5 and 29(2), Limitation Act are not applicable to proceedings before them.

43.14. The Mysore High Court5 has held that a Munsiifbefore whom an election petition is ﬁled, challenging the elections of the Chairman and Vice- Chairman of Village Panchayats, is not a "court", 43.15. .On the other hand, in some cases it has been held" that the question whether the provisions of the Limitation Act are conﬁned in their operation to proceedings before courts is no longer res intcrgra, in view of the judgment of the Supreme Court in Athanfs case'.

43.16. In a Delhi case, the argument that the Lt. Governor of Delhi before whom an application was ﬁled under section 91 of the Punjab Land Revenue Act (17 of 1877) as applied to Delhi is not a court, but functions as a persona designata was pressed before a Division Bench? In that case certain property 'C.S.T.U.P. V. Madam La]. A.l.R- 1977 SC. 523.

For comment, see S.N. Iain in (1977) 19 J.I.L.I. 484.

'-'S/ziv Charan Das V, Rukmani Devi A.l.R. [975 All. 374. 3U. Chacko v. P. Marakkar ALR. 1978 Kerala 161.

'S. Ganapathi v. N. Kumaraswami ALR. 1975 Madras 383. 5Nagreddy v. Khandappa, A.l.R. 1970 Mysore J66.

"Bando Banaii v. Bhaskar Baiaji, A.l.R. 1972 Mysore '31l. 7--Afham"s case, supra.

3Raj Chopra V. SmI- Shanna Devi, A_I.R. 1891 Delhi 18.

232

8911; REPORT or LAW COMMN oa INDIA on THE LIMITATION ACT, 1963 (Chapter 43- -Article 137 .' Other applications.) in Nizamuddin West, New Delhi, had been put to auction by the Collector, Delhi in 1971, in order to realise a certain sum of money due to the Department of Rehabilitation of the Delhi Administration and had been purchased by the appellant in the said auction. The sale was conﬁrmed by the Lt. Governor of Delhi on 23-12-1971 and the possession of the property was given to the appel- lant / auction purchaser. ', Section 91 of the Punjab Land Revenue Act (17 of 1877) as applied to Delhi, provides for making an application to set aside a sale within 30 days from the date of the sale. However, respondent no. 1 ﬁled an application under that section on 19-2-1972 and pleaded condonation of delay under section 5 of the Limitation Act, 1963, on the ground that he {respondent no. 1) came to know of the sale only on 9-2-1972.

It was argued before the Delhi High Court that section 5 of the Limitation Act was not applicable because the Lt. Governor before whom the application was ﬁled was not a court but a persona designata. In support of this conten- tion, reliance was placed on a Full Bench judgement of the Kerala High Court.' Dissenting from the Kerala view, the Delhi High Court held that the Kerala View had been over-ruled by the Supreme Court?

43.17 Surnmarising the law on the subject after the Kerala State Electricity Board's case, the High Court said:~--

"We feel that the argument based on the contention that the application under a special law must necessarily be to a court, before the provisions of Limitation Act are attracted is not borne out by any precedent or principles of law. This argument does not appreciate the dilference between case where there is no period prescribed by a special law and where it is so provided. In the former instance, a party will have to invoke Article 137 of the Schedule to Limitation Act, 1963, and this can be resorted to for ﬁling an application under any Act, vide A.I.R. l970'S.C. 209, A.I.R. 1977 S.C. 282. Such an application alone is required to be ﬁled before a civil court. But in case of latter kind--as in the present case~where the period.

is prescribed under a special law like the Act, Article 137 of the Schedule to the Limitation Act is not being resorted to at all and the requirement of application being to a court does not necessarily arise."

43.18. Even prior to the Kerala State Electricity Boara"s case, the Supreme Court had applied the provisions of the Limitation Act in computing the period of limitation under a special law like the U.P. Sales Tax Act."

43.19. Considerable difficulties have been experienced in deciding whether a functionary acting under a statute is a 'court' or not, for the purposes of enact'- ments using that expression. The Supreme Court has held' that the Registrar of Cooperative Societies under the Bihar and Orissa Cooperative Societies Act, 1935 was, to all intents and purposes. a court discharging the same functions and duties in the same manner as a court of law is expected to do. In a Punjab case', it was held that a Commissioner under the Workmen's Compensation Act 'Jokkim Fermmdes V. Amina Kuplii Umma, A.I.R. 1974 Ker. 162.

'Kerala State Electricity Board v. T. P. Kunhalinumma A.I.R. 1977 S.C. 282 para 21. 3Commissioner of Sales Tax, U.P. v. Madan Lal, A.l.R. 1977 S.C. 523.

'Jugal Kishore v. Siramarhi Ccnmzl Cooperative Bank Ltd.----A.l.R. 1967 S.C. 1494. 'Ram Sa-rup v. Gm-deb Singh (1969) Labour and Industries Cases 371 (Punjab).

89TH REPORT or LAW COMMN. 0:: lNDIA ON THE LIMITATXON ACT, l963 233 ' (Chapter 43---Article 137 .' Other applications.) is not a 'civil court', within the meaning of section IIOF of the Motor Vehicles Act, 1939. ' 43.20. There are n_umerous decisions under article 136 of the Constitution Article 136 on the construction of the expression "tribunal". The earliest case was Bharat Egﬁlggtuﬁon Bank Ltd. V. Irs Employees.' in which it was observed that tribunals adorned'~--Case Law. with the same trappings as courts which derive their power from the State and are exercising the judicial power of the State come within the scope of Article

136. This principle has been followed in later cases, 3-3 but the tests were with reference to statutes other than the Limitation Act. + 43.21. The result is, that while the Bombay High Court', concluded that the Commissioner of Workmen's Compensation is a "court", the Madhya Pradesh V High Court5 took a contrary view.

43.22. A single Judge of the Calcutta High Court' has listed no less than 11 conditions or criteria on whose touchstone an enactment creating a statutory authority will have to be scrutinised, in order to decide whether that authority is a "Court". According to him. on the basis of the judicial decisions, it would appear that a tribunal or authority shall be a court if the following conditions, in effect, are present: (i) the source of power of the tribunal or authority is the"

State as the fountain of justice and it is charged with and exercises the inherent judicial powers of the State; (ii) the jurisdiction to adjudicate the lis between contending parties involving their rights is conferred on it by law and does not depend on any voluntary act or submission of parties; (iii) the right to move the tribunal or authority is conferred on the aggrieved party by law: (iv) the proceed- ing on the lis commences by presentation of the case by the aggrieved party with a corresponding right on the other party to meet the case: (V) in adjudicating the dispute the tribunal or authority follows an established or prescribed procedure:

(vi) if the dispute is on a question of fact. an opportunity to the parties is given to adduce evidence and the facts are to be ascertained through evidence, supple-

mented by argument; (vii) if the dispute is on questions of law, there will be a submission of arguments on such questions of law by the parties before such tribunal or authority; (viii) the tribunal or authority. in arriving at its decision, acts judicially and according to law, following the principles of natural justice and fair play and not on any other consideration of policy: (ix) there is a decision wholly disposing. of the matter by a ﬁnding upon the facts and disputed questions of law (if required); (x) ﬁnality (subject to appeal, if provided) and authoritati- .

veness of the decisions. as being binding on parties; (xi) enforceability of the decisions by the tribunal or authority through the process of law.

43.23. The above exposition has been quoted as of some interest for under- No change standing the expression "Court". We do not. of course, propose to introduce "ceded- any deﬁnition of 'court' in the Act of Limitation.' \ 43.24. Nor we recommend any change in article 137 on the above point.»N0 change needed in article 137.

'Bharat Bank Ltd. v. Its Employees. A,I.R. 1950 S.C. 188.

"Engineering Mazdoo? Sahha v. Hind Cycles Ltd. AIR. 1963 S.C. 874. 3A.C. Companies Ltd. v. P. N. Slzarma, A.i.R. 1963 SC. 1595.

'Rajvabi v. Mackinnon Mackenzie & Co. P. Ltd. A.T.R.,1976 Bombay 27s. 5Yashwant Rao V. Sampat. A.l.R. 1979 M.P. 21 (F.B.) "Indian Iron and Steel Co. V. Shish Ram, 83 Calcutta Weekly Notes 786. 7Ce1'tain points relevant to the concept of court have been dealt with under sec. 12.

234

39TH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 (C/zapiler 44--Summary of Recommendations.) CHAPTER 44 SUMMARY OF RECOMMENDATIONS We summarise in this Chapter the recommendations for amendment of the law contained in the preceding Chapters.

Sections

1. In section 3(2)(a)(ii), the expression "paper" should be replaced by the expression "indigent person" (paragraph 3.2).

2. In section 4 (Court closed on the last day of the period of limitation), a clariﬁcation should be made regarding the combined applicability of sections 4 and 14. (Section 14 deals with infructuous legal proceedings) (paragraph 4, 3, read with paragraph 14.23). '

3. In section 5, an Explanation should be added to the effect that erroneous legal advice given by a legal practitioner is a suﬂicient cause within the meaning of the section for admitting an appeal or application after the expiry of the period of limitation (other than an application for execution), if certain condi-

tions are satisfied (paragraph 5.14).

4. Section 7 (legal disability of one person) should be redrafted to eliminate the ambiguity caused by the present use of the expression "time will not run"

(paragraph 7.9).

5. Section 10, Explanation (which provides that for the purposes of the section any property comprised in certain endowments is deemed to be property vested in trust for a speciﬁc purpose and the manager of the property is deemed to be the trustee) should be extended to Sikh and Iain endowments. Further, two new sub-sections should be added to the section. to dealiwith the case where a trustee who is also a beneﬁciary under the trust receives or retains trust property or its proceeds as a share on a distribution of trust property made in good faith (paragraph 10.8). ' --

6. Section 11 (suits on foreign contracts) should be widened so as to cover--_

(a) proceedings other than suits. and (b) all causes of action arising in a foreign country (instead of being conﬁned to foreigncontracts. as at present) (para-

. - graph 1 1.20).

7. In section 12 (exclusion of time in legal proceedings). the following changes should be made :--

(a) the marginal note should be revised as recommended (paragraph 12.13):

(b) the Explanation should be revised byredrafting it so as to provide that any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be regarded as time requisite for obtaining the copy within the meaning of the section (para-

graph 12.13);

(c) a new Explanation should be added to provide for a situation where there is a legal impediment to the preparation of a decree or order on account of a direction in the judgment or non-compliance with a direc- tion or other legally permissible reason (paragraph 12.13);

I 89TH REPORT or LAW COMMN. or INDIA on THE LIMITATION ACT, 1963 (C/rapier 44 Summary ofRer0mmendati0ns.)

(d) the expression "decree" for the pmposes of this section should be deﬁned to include the last paragraph of the judgment, where a copy of such paragraph is proposed {D be used under Order 20, rule 6A, Code of Civil Procedure, 1908 (pai'afr;splt 12.13);

(c) a clariﬁcatory Explanation should be added. declaring that the section " applies to proceedings before quasi-judicial tribunals (paragraph 12.13).

8. In section '13 (exclusion of time taken in prosecuting an application for leave to sue or appeal as a paup:r). the cxpr--'.sSion "indigent person" should be lubsrtituted for the expression "pauper" (paragraph 13.4).

9. In section 14 (infructuous lee->=l éT?'<'.-;'3.'(llI1gS). the following amendments should be made:~--

(a) The explanation should be .:n'aai~ged, so as to provide that the time reasonably riecessary for pcriorniing journey from the place where the former civil p1'0C€cE(ill'j?. was pending to the proper Court is deerned to be time during which the former civil proceeding was pending (para- graph 14.33).

(b) A new sub-section <2A) Siiﬁllitl h.: inserted in section 14, to provide that in computing the period of litnitatiriii for any appeal. the time during which the appellant has been prosecuting with the diligence another civil proceeding, whether in court of first instance or in a court of appeal or revision against the s'Ime party for the same relief, shall be excluded. where such a Dt'()C€'.1'(llng 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 tparagraplt 14.23).

(c) In order to remove the controversy as to the combined applicability of sections 4 and 14. an Explanation should be added to section 4 to provide that for the purposes of that section, the word 'court' includes a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain the suit, appeal or application, as the case may be, provided the suit. appeal or application was prosecuted in good faith in that court.

(Paragraph 14.253. read with paragraph 4.3.).

10. With reference to section 15 (defendant's absence from India), amend- merits should be made as under:--

(a) An Exception should be inserted below section 15(5)," to the elfect that section 15(5) does not apply to a period during which both the parties were residing in one and the same foreign country and the plaintiff was aware of such residence of the defendant and there were, in the foreign country, properly constituted courts or tribunals to which the parties had, or could have had, recourse for enforcing the cause of action (paragraph 15.19).

(b) An Explanation should be added to the section to provide that the attachment of a decree does not amount to a stay of execution, (para-

graph 15.19).

(c) Another Explanation should be added to provide that a defendant shall not be deemed to be absent from india during any period during which he had to the plaintifl's knowledge, a duly constituted agent in India 32--.14 M of LJ & CAINID/83 235 235 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 44---- -Summary qf'Recommendatz'ons.) authorised to institute and defend legal proceedings on his behalf in India (Paragraph 15.19).

-(d) As recommended by the Law Commission in its 13th Report on the Indian Contract Act. 1872, a new section should be inserted in that Act (the Contract Act) for resolving the controversy relating to {he position of a decree obtained against one promisor out of a number of joint ' promisors (paragraph 15.19).

11. In section 17 (fraud and mistake), an Explanation should be inserted to provide that for the purposes of this section, "fraud" includes conduct on the part of the defendant or the opposite party, as the case may be, towards the plaintift' or the applicant. as the case may be. which. having regard to some special relationship between the parties. was unconscionable (paragraph 17.17).

12. In section 19 (part payment of a debt), the following amendments should be made:~

(a) By suitable re-drafting. it should be emphasised that the section is con- ' ﬁned to a suit or application for the recovew of a debt or legacy (para- graph 19.12).

(b) The present Explanation to the section should be enlarged so as to pro- vide that the Explanation covers every type of immovable property, and also to provide that it covers not only the case of a mortgage, but also the case of a charge-holder in possession of the property (paragraph 19.12).

(c) Annex Explanation should be added to section 19. to provide that where ' payment on account of a debt or interest on a legacy is sought to be made by a negotiable instrument. then the tender of the negotiable instrument if accepted by the payee in such payment: amoutns to "payment" of the amount for the purposes of this section. whether or not the negotiable instrument is subsequently honoured (paragraph 19.12).

13. In section 21 (effect of subsequent addition of parties). the following changes should be made:--

(a) The provisions of the section (at present conﬁned to suits). should be extended to the addition of a party after the making of an application (paragraph 21.34).

(b) An Explanation should be inserted below sub-section (1). to prpvide that a person is deemed to have been madea party when the application for making him a party is made to the court. This will be subject to the present proviso to section 21(1). empowering the court to direct. in case of a mistake made in good faith. that as regards newly added party the proceedings shall be deemed to have been instituted on any earlier date (paragraph 21.34).

(C) By amending section 21(2). it should be provided that the section does not apply to a suit or application by or against the members of a joint Hindu family to enforce a right or liabilitv relating to the aﬁairs of the joint Hindu family, where one or more of the members of the family.

not originally impleaded. is. in the course of the suit or application. brought on the record at the instziriei. ':7' ether party (paragraph 23.34).

89TH nsronr or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 44» Summal y of Recommendations.)

14. Section 22 (continuing wrongs) should be re-drafted so as to provide that it applies in the case of a continuing breach of contract and in the case of a wrong independent of contract, and also that it applies whatever be the relief claimed (paragraph 22.13).

15. Section 23 (act not actionable without special injury) should be amended by substituting the words "speciﬁc damage" for the words "speciﬁc injury", and also by adding an Explanation to the clicct that the section applies to a wrong which constitutes a breach of contract. as also to an act which constitutes a wrong independent of contract (paragraph 25.15). i ' I

16. With reference to section 2') (savings regarding section 25, Contract Act, special and local laws, proceedings under a law relating 'to marriage and divorce and the Easements Act), the following recommendations have been made:----

(a) Section 29(3) should be re-drafted as under:

"(3) Save as otlicrwisc provided in any enactment for the time being in force providing for the di.s'.s'0Z//fiolz of a marriage by a decree of divorce, or for the grant of other mutrinmnial relief, nothing in tlIis'Act- shall apply to any suit or other proceeding under any such cnactmem."

(Paragraph 29.32).

(b) The Central Government should take action for speciﬁcally repealing the provisions in the erstwhile French and Portguese Civil Codes governing limitation in force in the Union territories of Pondicherry and Goa res- pectively, after ensuring that no legal hiatus is created by such a repeal (Paragraph 29.17).

(c) The State Governments of Tamil Nadu and Kerala should examine the points raised in certain judgments (referred to in Chapter 29), concerning the period of limitation provided by the Travancore Limitation Act (IV of 1100 NE), with a view to ensuring that no hardship is caused by the extended period of limitation allowed by section 20(1) of the Act in relation to deeds of further charge (paragraph 29.23).

Articles 1 to 5 : Suits relating to accounts

17. No changes are recommended in articles I to 5 (Chapter 31).

Articles 6 to 55 : Suits on contracts.

18. Article 7 (suit for wages not otherwise expressly provided for) should be amended as under:--

(a) where the suit is for relief consequential on the setting aside of an order of dismissal or removal (from service). the starting point for limitation should be the date when the dismissal or removal (from service) is set aside (paragraph 32.8).

(b) an Explanation should be added to provide that "wages" includes salary and pension (paragraph 32.8. roads with paragraph 32.3).

19. Articles 10 and ll (certain suits against carriers of goods for compensation should be revised as recommended in detail (paragraph 32.17).

237

89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 44 --» Summary ofRec0mInei1(1(2li0nS.)

20. A new article 22A should be inserted to deal speciﬁcally with a suit for money deposited under an agreement that it shall be payable on the expiry of . a stipulated period, including the money of a customer in the hands of his banker so payable. The time limit should be 3 years, to be computed from the date of expiry of the stipulated period (paragraph 3235).

Articles 56 to 58 : Suits relating to declarations

21. In article 57 (the general article relating to suits to obtain declaration at;-out invalidity, etc. of an adoption). the first co.-'umn should be conﬁned to suits to obtain such a declaration where no further relief is sought (paragraph 33.29).

22. Article 58 (suit to obtain any other declaration) should also be conﬁned to a suit in which the plaintiff does not seek further relief (paragraph 33.35).

Articles 59-«60 : Suits relating to decrees and instruments

23. As regards article 00 ajsuii LO set aside ;I 1 saistei' of property made by the guardian of a ward), in order to resolve the controversy as to the coverage by the article of a de facto guardian. attention has been drawn to the 83rd Report of the Law Commission on the Guardians and Wards Act, 1890. In paragraph 4.13 of that Report a recommendation has been made for adding to section 4(2) of that Act. a suitable Explanation which will make it clear that a de facto guar- dian is included within the definition of "guardian" in that Act. Implementation of this recommendation is expected to eliminate the controversy on the subject in relation to the Limitation Act also (paragraph 34.6).

Articles 61 to 67 : Suits to immovable property

24. No changes are recommended in articles 6i to 67 (Chapter 35).

Articles 68 to 7] : Suits relating to movable property

25. No changes are recommended in articles 68 to 71 (Chapter 36).

Articles 72 to 91 : Suits relating to tort.

26. In regard to article 72 (suit for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force for the time being), the recommendation made by the Law Commission in its 3rd Report (Report on the Limitation Act, 1908) to 'Increase the period of limitation from one year to I three years is re-iterated (paragraph 37.6).

27. Article 74 (suit for compensation for a malicious prosecution) should be amended in regard to the starting point of the period of limitation. At present, the starting point is expressed as under:~--~ "When the plaintiff is acquitted or the prosecution is otherwise terminated."

The recommendation made is to insert the word "ﬁnally" before the word "terminat.=d" (paragraph 37.17).

28. Article 75 (suit for compensation for libel) and article 76 (suit for com- pensation for slander) should be replaced by 'one single articles, providing a~time limit of one year for a suit for compensation gar defamation. The starting point 89TH REPORT or LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 449 Summary of Recommendations.) should be--"when the defamatory statement is published, or where the defamatory statement is not published in a permanent form, _when it comes to the knowledge of the plaintiﬂ" (paragraph 37.26).

29. Article 77 (suit for compensation for loss of service occasioned by the seduction of the plaintilfs servant or daughter) shou"[d be revised as under; so as to eliminate the element of loss of service:

"77. For compensation for sednctiorz: One when the seduction occurs."

year.

(paragraph 37 .33).

30. Article 78, which prescribes a period of limitation of one year for a

- suit "for compensation for inducing -.1 person to break a contract with the plaintiff."

should be amended by adding tl1=.' Woltl "wmngful'i_v" before the words "inducing a person to break a contract with tliepplaintift" (paragraph 37.37).

I 31. Article 79 (suit for compensation for illegal, irregular and excessive distress) should be amended so as to alter the starting point of limitation. At present the starting point is the date of the distress. This should be revised so as to substitute the date of release of the distress (paragraph 37.43).

32. Article 80 (suit for compensation for wrongful seizure of movable property under legal process) should be revised so as to alter the starting point of limitation. At present, the starting point is the date of the seizure. This should' be revised so as to substitute the date of release from the seizure (paragraph 37.43).

33. Articles 81 to 83 (certain suits under the Legal Representatives' Suits Act, 1355 and the Indin Fatal Accidents Act, 1855) may be examined when the Indian Sucession Act, 1925 is taken up for revision (paragraph 37.50).

34. Article 88 (suit for compensation for infringing copyright or any other exclusive privilege), which provides a time limit of three years; to be computed from the date of the infringement, should be revised in two directions.

(i) In the ﬁrst place, the nature of the suit (in the ﬁrst column of the article) should be described as a suit "for compensation for infringing copyright or right to other intellectual property, or any other exclusive privilege, or for restraining such infringement". '

(ii) Secondly, the period of limitation {three years) should be counted not from the date of the infringement (as at present), but from the date when the infringement first becomes known to the plaintiff (paragraph 37.64).

35. Article 90 (suit for compensation for injury caused by an injunction wrongfully obtained) should be enlarged so as to cover compensation for injury caused by an attachment wrongfully obtained (paragraph 37.68). .

Articles 92 to 96 : Suits relating to trusts and trust property a 36. Articles 94 , 95 and 96 (suits to set aside a transfer of property comprised in a Hindu. Muslim or Buddhist religious or charitable endowment made by a manager thereof for a valuable consideration and suits by such a manager to recover possession of such property which has been transferred by a previous manager for valuable consideration) should be extended so as to cover Sikh and Jain endowments (paragraps 38.8 and 38.11).

239' 2 89111 REPORT or LAW COMMN. or iND1A ON THE LIMITATION ACT, 1963 (Chapter 44 vvvv «Summary ofRecamnlem/ali0Il.V.) Articles 97 to 112 : Suits relating to miscellaneous matters

37. Article 98 (suit by a person against whom an order referred to in Order 21, rule 63, C.P.C. or Order 21, rule 103, C.P.C. or under section 28 of the Presidency Small Cause Courts Act, 1882 has been made, to establish the right which he claims to the property comprised in the order) should, in its first column, be revised so as to apply to a suit by a person against whom an order referred to in Order 21, rule 58(5), C.P.C. has been made or an order under section 28 of the Presidency Small Cause Courts Act, 1882 has been made, to cstabliﬁniie right which he claims to the property L'tJLl]pt'1l>'Lltl in the order, where such a suit is permissible in law. The amendment has been recommended in the light of the altered scheme of the relevant provisions in Order 21, rules 58 to 63 of the Code of Civil Procedure, 1908 rafter the uincnditieiit of the Code in 1976 (paragraph 39.11).

38. AIl.lCl€ 99 (suit to set aside .1 sale by .1 ClVll or revenue court or a sale for arrears of Government revenue or for any demaiitl recoverable as such arrears) should, in its first column, be revised so as to dc:-cribe the suit as a suit to set aside-

(a) a sale by a civil or revenue court, including a sale of the eoparcenary property of a Hindu undivided family governed by the Mitalcshara law in execution of a decree obtained against the father, or

(b) a sale for arrears of Government revenue or any demand recoverable as such arrears. (paragraph 39.18)

39. Article 100 (suit to alter or set aside any decision or order of a civil court in any proceeding other than a suit for any act or order of an officer of Government in his official capacity) prescribes a time limit of one year, to be computed from the date of the ﬁnal decision or order by the court or the date of the act or order of the ofﬁoer, as the case may be. The third column should be revised, so as to substitute the following as the starting point:--

"The date of communication of the ﬁnal decision or order by the court, or the date of communication of the act or order of the oﬂicer or, where there ' has been no such communication, the date on which the plaintiff ﬁrst had knowldgc of the act or order of the otﬁcer, as the case may be". (paragraph 39.23).

40. Article 102 (suit for property which the plaintiff had conveyed while insane) should be revised by increasing the present period of three years to six years (paragraph 39.30).

41. Article 110 (suit by a person excluded from a joint family property to enforce a right to share therein) should be in the first column verbally amended by describing the suit as one by a person, "totally and absolutely excluded" from a joint family property, to enforce a right to share therein (paragraph 39.46).

Article 113 : Suits for which there is no prescribed period

42. No change is recommended in article 113 (the residuary article relating.

to suits) (Chapter 40).

Articles I14 to 117 : Appeals a

43. Article 114 (appeal from an order of acquittal) should be revised, by making verbal changes as recommended (paragraph 41.2).

z 89TH REPORT or I.Aw COMMN. or INDIA or»: THE LIMITATION ACT. 1963 (Chapter 44-- --Summary'of Recommendations.)

44. Article ll5 (appeals under the' Code of Criminal Procedure. 1973, from certain sentences and orders) should be revised, by making verbal changes as recommended (paragraph 41.4).

45. Article 116 (appeals under the Code of Civil Procedure. 1908) provides for two different periods of limitation for civil appeals from decrees and orders. The period. at present. is--

(a) 90 days for appeal to a High Court: and

(b) 30 days for appeal to any other High Court.

The recommendation made in the Report of the Law Commission in its 3rd Report (Report on the Limitation Act. l908) was to reduce the period for appeal to the High Court to 30 days. The recommendation is re-iterated in the present Report (paragraph 41.6).

Article H8 to 136 : Applications in speciﬁed cases

46. Article ll8 (application for leave to appeal and defend a suit under sum- mary procedure) prescribes a time limit of IO days. to be computed from the date when the summons is served. There is a proposal by the Government of Maharashtra for increasing the' period to 30 days. connected with a proposal to simplify the provisions of the Code of Civil Procedure. 1908 relating to surnmary procedure (Order 37. C'.P.C_) so as to reduce the various stages of trial under that procedure. The Commission is of the view that the proposal of the State Gov- ernment may be viewed favourably in principle. and if the working of the amended procedure in the State of Maharashtra (when the amendment materialises) is found to be successful. a similar amendment can be taken up on an all-Tndia basis in the Code of Civil Procedure. l908 and in article ll8. Limitation Act. l963 (paragraph 42.7).

47. Tn the discussion relating to article ll9 (certain applications under the Arbitration Act. 1940). the recommendation made in the 76th Report of the Law Commission. page 53 (Report on the Arbitration Act. l940) for amending section 30(b) of that Act. in order to clarify the scope of the expression "or is otherwise invalid" has been re-iterated in the present Report (pragraph 42.l2).

48. Article l27 prescribes a period of limitation of 60 days for an application to set aside a sale in execution of a decree. including any such application made by a judgment debtor. [This is the position after theiamendment of the article in l976l. However, in Order 23. rule 92(2). Code of Civil Procedure. 1908. the time limit- for making the requisite deposit for setting aside the sale is 30 days. thereby creating a discrepancy with article 127 of the Limitation Act. The discrepancy between the two sets of provisions should be removed by increasing the time limit in Order 2l. rule 92(2) of the Code of Civil Procedure to 60 days (paragraph 42.35).

49. Article l30 (application for leave to appeal as a pauper. made to various courts) should be amended-

(a) by prescribing. in the second column. the same period of limitation as is applicable to the appeal in respect of which the leave is sought. and

(b) by substituting. for the word "pauper". the words "indigent person"

(paragraph 42.43).

241 242

89TH REPORT or LAW ('0MMN. or mom ON THE IJMITATION ACT, 1963 (Chapter 4444 Summary of-Recomrnendtztions.)

50. Article 131 (application to a court for revision) at present provides that the period of limitation (90 days) is to be computed from the date of the decree, order or sentence sought to be revised. _ The recommendation is that the period should be computed from the date when the applicant for revision had knowledge i of the decree, order or sentence (paragraph 42.46).

51. Article 132 (application to a High Court for certiﬁcate of ﬁtness to appeal to the Supreme Court under the speciﬁed provisions of the Constitution) should, in its ﬁrst column, be revised by carrying out certain verbal changes as recom--

mended in the Report~ a recommendation made in view of the changed phraseo- ldgy of the relevant constitutional provisions (paragraph 42.49).

52. Article 133 (application to the Supreme Court for special leave to appeal) should be revised as recommended. in view of certain anomalies brought out in regard to cases where the High Court had orally refused the grant of a certiﬁcate of ﬁtness on the very date on which the judgement sought to be appealed from was pronounced by the High Court (paragraph 42.56).

Article 137 Applications for which no speciﬁc period is provided

53. No changes are recommended in article l37 (Chapter 43).

. K.K. MATEHEW . . . . . . ..C/zairman NASIRULLAH BEG . . . . . .Member J.P. CHATURVEDI . . . . ..Member P.M. BAKSHI . . . . . . . . ..Member (Part-time) Dated: February 28,1983.

/ MGIPC.IB--84----14 M ofvLJ & CA/ND/83-29-10-84---2,000.

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The Limitation Act, 1963