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The Limitation Act, 1963
The Indian Penal Code, 1860
Section 14 in The Limitation Act, 1963
Section 5 in The Limitation Act, 1963
Section 4 in The Limitation Act, 1963

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Law Commission Report
The Limitation Act, 1963
‘ ’ A LAW COMMISSION OF INDIA I EIGHTY-NINTH REPORT ON THE LIMITATION ACT, 1963 Govsmmsm op INDIA . 7 Ministry of Law, Justice and Company Affairs LAW COMMISSION OF INDIA EIGHTY-NINT H REPORT ON THE LIMITATION ACT, 1963 ` C O N T E N T S CHAPTER 1 INTRODUCTORY. I CHAPTER 2 SECTIONS I AND 2: · PRELIMINARY. CHAPTER 3 SECTION 3: THE BAR OF LIMITATION. CHAPTER 4 SECTION 4: EXPIRY OF PRESCRIBED PERIOD WHEN COURT IS CLOSED. CHAPTER 5 SECTION 5: EXTENSION OF THE PRESCRIBED PERIOD FOR SUFFI- CIENT CAUSE. CHAPTER 6 SECTION 6: · LEGAL DISABILITY. CHAPTER 7 SECTION 7: DISABILITY OF ONE OF SEVERAL PERSONS. A CHAPTER 8 SECTION 8: SPECIAL EXCEPTIONS TO THE PROVISIONS CONCERNING DISABILITY. CHAPTER 9 SECTION 9: ` ` CONTINUOUS RUNNING OF TIME. ` CHAPTER I0 SECTION IO: SUITS AGAINST TRUSTEES. CHAPTER II SECTION I1: SUITS ON FOREIGN CAUSES OF ACTION. CHAPTER I2 SECTION I2: EXCLUSION OF TIME IN LEGAL PROCEEDINGS. CHAPTER 13 SECTION 13: . EXCLUSION OF TIME WHERE LEAVE TO SUE OR APPEAL AS PAUPER IS APPLIED FOR. CHAPTER I4 SECTION 14: TIME TAKEN IN INFRUCTUOUS LEGAL PROCEEDINGS CHAPTER I5 SECTION 15 : EXCLUSION OF TIME IN CERTAIN OTHER CASES. CHAPTER I6 SECTION I6 1 EFFECT OF DEATH ON LIMITATION. _ CHAPTER 17 SECTION 17 1 FRAUD AND MISTAKE. CHAPTER IS SECTION It? 1 ACKNOWLEDGE1‘»IEN'I`. CHAPTER 19 SECTION 19 1 PART PAYMENT. CHAPTER 20 SECTION 20 1 ACKNOWLEDGEMENT OR PAYMENT BY ANOTHER PERSON. CHAPTER 21 SECTION 211 ADDITION OR SUBSTITUTION OF PARTIES. CHAPTIR. 22 SECTION 22 1 CONTINUING WRONGS. CHAPTER 23 SECTION 231 ACTS NOT ACTIONABLE WIT IIOUT SPECIAL DAMAGE. 1 CHAPTER 24 SECTION 24 1 A COMPUTATION OF TIME. CHAPTER 25 SECTION 25 1 _ ACQUISITION OF EASEMENTS BY PRESCRIPTION. CHAPTER 26 SECTION 26 1 EXCLUSION IN FAVOUR OF REVERSIONER OF SERVIENT TENEMENT. ` CHAPTER 27 SECTION 27 1 EXTINGUISHMENT OF RIGI-IT TO PROPERTY. CHAPTER 28 SECTION 28 1 AMENDIUENT OF CERTAIN ACIS. CHAPTER 29 SECTIONS 29 TO 32 1 _ SAVI NG. TRANSITIONAL PROVISIONS AND REPEAL. · CHAPTER 30 LIMITATION AND THE AMENDMENT OF PLEADINGS. CHAPTER 31 ARTICLES 1 TO 5 1 SUITS RELATING TO ACCOUNTS. CHAPTER 32 ARTICLES 6 TO 55 : SUITS RELATING TO CONTRACTS. O CHAPTER 33 ARTICLES 56 TO 58 1 SUITS RELATING TO DECLARATIONS. CHAPTER 34 ARTICLES 59 TO 60 1 SUITS RELATING TO DECREES AND INSTRUMENTS. CHAPTER 35 ARTICLES 61 TO 67 1 SUITS RELATING TO IMMOVABLE PROPERTY. r _ CHAPTER 36 ARTICLES 68 TO 71 : SUITS RELATING TO MOVABLE PROPERTY. CuA1>1m< 37 ARTICLES 72 TO 91 ; SUITS RELATING TO TORT. CH.·\P'I`ER 38 ARTICLES 92 TO 96 : SUITS RELATING TO TRUSTS AND TRUST PROPERTY. CuA1>‘1‘121< 39 ARTICLES 97 TO 112 : SUITS RELATING TO MISCELLANEOUS MATTERS. CIIAPTER 40 ARTICLE 113: SUITS FOR WHICH THERE IS NO SPECIFIED PERIOD. CHAPTER 41 ARTICLES I14 TO 117 : ` APPEALS . CuA1>1LR42 ARTICLES 118 TO 136 : APPLICATIONS IN SPECIFIED CASES. ‘ CHAPTER 43 OTHER APPLICATIONS. CHAPTER 44 SUMMARY OF RECOMMENDATIONS. D.O. N0. F.2(6)/82-LC' K_ K_ MAT[{Ew Sl121SIl`l Bh21V21I1, \ New Delhi-110001. C 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 sua 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 ina comprehensive manner. · 4. _ The Commission wishes to express its appreciation to Shr1_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. Marunwl Shri jagannath 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 INTRODUCIORY 1.1. Revision of the Limitation Act, 1963 has been taken up by the Law Revisi_on_ of Commission of India sito mvfu, in view of the importance of the subject as a2':nL;_I;T°` 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. V 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 1871 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 LJ & CA/ND[83 2 89TH REPORT or I. Aw COY\l!\’1N. or INDIA ON TIIE l.lY\llTAT1O}~l ACT, 1963 . (C/mp/er] ~—[flZI’O(I'll('Z0l'_l`) any property, whether movable or immovable. Secondly. while the Act o1` 1871 provided for the acquisition of easements absolutely by open and uninterrupted enjoyment for twenty years. the Act of 1877 extended this provision to what are known as profits ri prcndrc. The Limitation Act 1908 (9 of 1908) made certain changes in matters of A 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 1963 (the present Act) has made a few changes of substance in the Act——particu1arly. 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 1908. As already men- tioned,' the present Act largely implemented the recommendations made by the Law Commission in its Report on that Act. P*i9¢iPl°S fm 1.3. It would be convenient to mention at this stage some of the general revision. . . . .. principles adopted by us in revising the Act. ln the nrst place. we have . examined the case law on the Act in some detail. addressing ourselves especially to conflict of decisions on important points. ln 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. 'l`hirdly_ 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 wav 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 certainly requiring attention. Fourthly. apart from conflict of views. judicial decisions have brought out a few lacunae in the Act—»—for example. the difficulty caused by the draftsmanship of section 29 in regard to suits for dower. Fifthly. some of the provisions of the Act are unduly restricted in their scope. and it has been considered worth examination whether- the orinciple on which they arc based should not `be given its lull scope by making the provision more ample than at present. Section 11 furnishes one example. That section (dealing with cer- tain aspects of conllict 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 thc Act. :I:$?.l;°;n0_ 1.4. A query may perhaps he raised as to the need for having another look ther look. at the Act within twenty years or so. lt is enough to answer it by quoting what the Chairman of the law Commission for Fnglnnd and Wales said about the process of law reform? "ln 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." A ‘Para 1.1, supra. WT 2Mr. Iutice Kerr, "Law Reform in Canging '1“imes", 96 Law Quarterly Review 515. 89rit i (Jet, WSU) 13ll New 1.,]. ltlll2. “A Milner, Winnie The Pooh. (`hapter 6. ‘cf. para 1.5 supra. 89TH REPORT OF LAW cor/1MN. or INDIA ON rrr}; LIMITATION ACT, 1963 (Chapter 1~Inlr0rluct0ry) 1.9. The case ot` substitution or addition of parties during the course of litigation is dealt with in section 21. G T 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 ol the period oI` 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 case of appeals and certain applications, the court has power, for sullicicnt cause, to extend the prescribed period. Here one has an example ol’·legisIative anxiety to maintain a balance- between ensuring vigilance and avoiding hardship. As regards persons under legal disability, appropriate provisions are made in sec- tions 6 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 IO 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 first rate example of the legis- lature stepping in to correct an anomaly brought to light by judicial decisions. Section ll 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 lndian 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 12,--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 cx- clusion of time actually taken in certain infructuous legal proceedings -e-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 infructuous because the court, from i 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 L 89ri~i Rrrom or raw coivtmiv. or INDIA ou THE LIMITATION ACT, 1963 5 (Chapter l—·—[ntr0ductory) the institution of a legal proceeding, and the like, are dealt with in section 15. The absence of the defendant from lndia 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. I While these provisions of the Act are mostly concerned with diflicultics V _ arising from certain circumstances which are not dependent on the conduct of an individual, justice requires that provision should also be matic to relax the l law of limitation in case of 1`raud or mistakc— these 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 0[ or limitation for various kinds ot proceedings. Ot these, articles 1 to 113 relate the Act; to suits; articles 114 to 117 relate to appeals and articles 118 to 137 relate to E2°t£m°l°S applications. The general scheme adopted in the Schedule is that, in each Schedule. 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 articlc_ 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 periods 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, thc 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 61(a) and 63(a), respectively. The residuary article for suits (article 113) allows a period of three years for suits not otherwise spccitically 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. ln 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 1 is the close of the year when the last item ad- _ 5 89Iu 1{l*1’t>1 is the end of the voyage during which the wages are earned. Again, under articles 73 and 74, which are con- cerned with compensation l`or false imprisonment and compensation for mali- cious prosecution respectively. the starting point is termination of the false im- A 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 plarntill 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, oltb), 68, 71. 84, 92 to 95 and 102. 1.14. ln regard to appeals. the period of limitation various 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 applications. the prescribed periods vary from 10 days (article 118) to 12 years (article 136. which is the general article l`or an applica- tion for the execution of any decree or order of any civil court). The residuary article for applications tarticle 137) allows a period of 3 years. CHAl"l`ER 2 5l·ZCl“l()NS 1 \l\E) 2: l’I{lil,lNI1NARY Section l_ 2,1,. Beginning a tonsitlriation ol the .\et sostionwisc. Suction I deals with Short title, the short title, extent and eommenecinent of the Act. liy a notification of the ggéfgfcsygmclltl Central (jovernment issued under Section 1(3). the Act came into forcel on the lst January. 1904. Under Section lt2), the Act extends to the whole ot 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 adverted to* while discussing section 20. which seeks to preserve "special and loeal" laws. Section 2___ 2.2. Section 2 contains a number of definitions, being definitions of the Degnirjom following words and expressions;— (a) "applicant"; tb) "applicati0n"; (c) ‘bill of exchange"; (d) "bond"; (e) “`de1`endant": (fl "eascment": tg) "foreign country"; (h) "good faith": ti) `“plainti1l"; ‘Noti1ication. No $.0.9113. dh] 29th Ogimer, 1963 7 _ *Sec discussion on relating to section 29, infra. fltltit i(’¢`] ptrrtotl whcrt (our! IN l'/(lift!') tj) "period of limitation" and "prcscribed"; tk) "promissory note"; tl) “suit"; (ni) "tort" and g tn) "trustee". · . We have no changes to recommend in the dehnitions. since they have not created any serious controversies that may 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 he hest dealt with while considering those provisions. CHAPTER 3 SECTION 3: THE BAR OF I.IN'|ITATION 3.1. The o erative rovisions of the Limitation Act mai be said to begin $°“ll"" J' . . p p . . . . , Iltc bar of with Section 3. Sub-Section tl) of this section which constitutes the most hmitatimy important operative provision.---enacts that. subject to the provisions contained in sections 4 to 24. every suit instituted. appeal preferred. and application made after the prescribed period shall be dismissed. although limitation has not been set up as a defence. Thus. in the tirst place. the dismissal of a time-barred proceeding is made mantlatorv by this provisions; se-contllv_ this is so even if the defendant does not tip limitation as a defence. Sub-section (2) of section 3 explains. in some detail. in three clauses)-(al. (bl and (cl.—»-how the proposition laid down in sub-section (ll is to be applied. clause (al of the sub-section explains when a suit is "institutcd" 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 thc Court. Clause (bl deals with set off and counter- claims. while clause (ci deals with an application ht notice ot' motion in a High Court. 3.2. While no changes ol` stihstancc are recommended in section 3. we have Recvrnmcndution one recommendation to make for a verbal change in section 3(2) (a) (ii). in giC?i'§:ng(-2) which the expression "a pauper" {occurring at two placcsl needs to he replaced Wl till- by the expression "an indigent person", in view of the changed phraseology adopted in the Code ol` Ciiil i’:·occdtn·e. MON as amended in U)76. We re- commend accordingly. CHAPTER 4 O SECTION 4 : EXPIRY OF PRESCRIBED PERIOD VVHEN COURT IS CLOSED 4.l. Section 4 provides that where the prescribed period for any suit, EQLIEEWH . . . _ _ Il , 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. 8 $‘)Tll IORT or 1.AW CON/[MN. OF INDIA ON TIIF LIMITATION ACT, 1963 (("}l(l{r/¢‘i‘ 4 .St'(‘fft1Ill 4; L4.\`[)fI'_\` of prrascr//)t’tI perfor] W/lL'll C(/llI'Z is c‘fU5¢’rf. C`/Mwler 5e5<·<·/ioii 5; Exieiilstiriiz of 1/ie prescriber! perror! for su/fioienr cause} Principle. 4.2. Obviously. section 4 is based on the principle that the law does not compel a man to do the impossible-—le.r non oogir ml imp0ssil>ilia—and that the act of court should harm no one} S;g;%°in 4.3. While the section, standing by itself, has created no problems. S0mC section 4 difficulties have arisen in connection with the combined operation of sections 4 Lfgcgg? and 14. We shall advert to this point at the appropriate place? CHAPTER 5 SECTION 5: EXTENSION OF THE PRESCRIBED PERIOD FOR SUFFICIENT CAUSE S°°ti°" 5 5.]. Section 5 empowers the court, for "suf1’1cient 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. docs not apply to suits. We have consi- dered the question whether the section should be amended so as to include within its ambit suits nled 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 by 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 expected to refute. “ Eg?3;i°§tgf 5.3. Though there is some merit in Dr. I-Iari Singh Gour`s suggestion. wc suits noi think that enlarging the scope of section 5 to cover suits would do more harm '°°°"““°"d°d· 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 defendants. he could as well as prevented by other Q ’C`.F. Anyndi V. H1`ram1ay_vu, A.I.R. 1972 SC. 239. 2See discussion relating to section 14. Iillf/'(I. 3Dr. Hari Singh Gour; Annexure to the letter from F.S.A. Sloica, Esq. I.C.S.L 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 89rn ttrronr or 1 xv: comm. ov t.txtir,v’taor< xcr. 1963 9 (C/tap/or 5*7S(’t'/f0I1 57 E.\`1(’/Iffllll of 1/to l’r4·.st·ri/wd Period for S11//i<·i0nt cause) causes like breakdown of the bus service. lloods. illness. ctc the authorship of which cannot be imputed to the defendants. ln view of the above. we do not recomtnend extention of the principle of section 5 to suits. ll. Applications 5.4. Regarding the applicability of section 5 to applications. the law as ··\PPll°¤ll91“· 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 21 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 jusification for excluding applications under Order 21 (applications for execution) from the scope of the Section. since the period available is long enough (12 years)? lll. Erroneous legal advice 5.5. ln Section 5. the expression "sul’licient cause" for not preferring an Erroneous appeal or making an application within the prescribed period has been iitter-lfdgitc preted by the Supreme Court} to include lawyers` ignorance about the law regarding calculation of the period of limitation. ln 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 eounsel." 5.6. The principle. is in fact. well established. At the same time. courts l$€€f0¤¤bl¢ have been cireumspect in scrutinising the claim of a party that he was misled gigacjcd by a wrong legal advice. For example. a plea was made before the Madhya *‘l °*""“°l· Pradesh High Court' by a counsel that he had relied on a Full Bench ruling ol` 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 had. 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 "suf1icicnt" cause within the meaning of section 5. The Courts have inquired that the lawyer who gave the opinion exercised reasonable care. ln 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 . )' ’Law Commission of lndia. 3rd Report (Limitation Act. 19118), page 13. para 26. i’Article 136. **Conc0rd of India lrzstmntce Co. v. Nfrmalu Devi. A.l.R. 1979 S.C. 1666. 4CfI1IHlif(1fV. State of M.P, A.l.R. 1957 ,·\_P. 127. 128. SBIIIIWU/'lifflf v. Union of India, A.1.R. 1973 Delhi 24. "B/tai/i B/1. Monziul v . K/iu_ucn¢Ii·t1_ A.l.R.. 1968 Cal. 69; R. Trading Cv. v. M. T/Nd/71.9 Agmcy, A.l.R. 1971 Cal. 313. 3—l4 M of LJ&CA/ND/83 10 89Tu iziivoizr or 1. xw t‘<>\txtN. on Lll\llT\'llUN Act. 1963 (Chapter 5'A—Sm-/ion 5 ~ Eowrzion of rho Prr—sr·rihr·d Period for Sufficient rn1r.s·cl ` l the Privy Council observed`. "there is certainly no general doctrine which saves parties from the results of wrong advice". The Supreme Court? while inter- preting the words "suflicient 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 bona fide is imputable to a party." ln an English case", Brett. LJ. observed: "In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his Legal Adviser. hc has his remedy against that Legal Adviser. and meantime the suitor must suffer. But where there has been a bona ride mistake, not through misconduct not through negli- gence nor through want of a reasonable skill but such as a skilled person might make. I very much dislike the idea that the rights of the client should be thereby forfeited? 5.8. lf that requirement has to be read into section 5 some questions arise. wi:h_:he Though the expression "good faith" has been defined in section 2(h). that ex- ;?q:;:ln°"t pression does not find a place in Section 5. Taking note of this. Abdur Rahman I. in a Lahore ease‘ observed; "lt must be. however. conceded that in finding a ‘sutticient cause’ under section 5 of the Act. at ‘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 3t7l. limitation Act.". "lt may not be irrelevant to recall the dchnition of ‘good faith’ in section $(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 rshould 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 l 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." ég£;’r:?3f° °f 5.9. Though the Stineme Court east.-‘ concerned itself with the counsels ignorance about the law regarding computation of period of limitation. some observations in an earlier ease of the Supreme Court" seem to suggest that the Court might be prepared to condone negligence on the part of the Counsel 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 Linder section 5 of the Limitation Act". lKunwar Ru_ic·ndru Balmdirr Sl·Il_Q[l v_ Rr1_ir·.r}1n·m· Bali. A.l.R. 1937 P.C. 276. 2Starc of Wesr Bengal V. Howmh Mzmi`;·ipnIil_r. !\.l.R. 1972 St`. 74*). 755. i`Hig/iron v. Trclrernc, (1878) 39 Law Times 411. ‘Arurr.· V. Knram Din, A_l.R. 1947 Lah. 77. 5C0nc0rd of India l'n.turnuce· Co. v. Nirnmla Devi. A.l»R. I979 SC. I666. ‘Chiru1ba}miv. R.C. Bali, A.l.R. 1977 SC 2319. 89Tit in was ta/ten not to tile an appeal all the papers had not been considered by the department tvttcetvtctl, but we are not im- pressed by that allegation. The truth appears to lg that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was lilcd 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 ol` limitation l`or hling an appeal. But when it allows limitation to expire and pleads suihcient cause for not tiling 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 tlte expiry of limitation can constitute such sullieient 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 1£i$$£"3X;_,i"'liiliti. ‘‘'. L »,‘.,L)i*‘L’,1E;$.r‘.;i"9};.i. ,,-..,, A.l.R· wa sp. m. ttm i. Sm 495, 497_ 12 89TH it·4/ I’r·riod for Suf/iciczrl cause) without the appeal being filed must be traced to a cause arising within the period of limitation. ln 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. Need for 5.12. We have, on an examination of all aspects ol the matter, come to the codigcafion conclusion that the position on the subject of legal advice given erroneously gl ah; rw needs to be codified. However. it would make for a better appreciation of evidence pubifvf Of and merits of a claim under this section if the court has before it, in black Y . . . aefgm 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 lndia. Hence. we recornmend that the Central Government should request the Bar Council of lndia to frame rules making it obligatory upon an advocate to tender a written legal advice in rnattcrs 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 Explanation 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 Mvficd 5.13. We now turn to a slightly dill`erent topic namely. the position ol` women. married women. Section XII of Limitation Act No. I4 of 185*) (legal disability) provided as under : — "Xll. The following persons shall be deemed to bc under legal dis— ability within the meaning of the last preceding section married women in cases to be decided by Iinglish law. minors. idiots and lu1raties." ` ·=»-W Y · . . . However. rn the subsequent statutes of 1871 and 1877. the class ol "married women" was removed from the list of persons under legal disability. ln 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 suffered from the disability ol` prohibition l`rom acquiring property". For others appropriate provision has been enacted. ‘ No Change 5.14. No doubt. there are certain procedural diihculties of a married woman needed as in seeking legal redress today. The prevalence ol` the dowry system and certain §}O[‘;‘;;f‘°d other anomalies have brought to surface some ot the handicaps of the married women. While we fully appreciate the difficulties faced by married women (especially from the rural parts of india). in obtaining legal advice. we have 1For implementation by the central Government. {See pam 5.14. infra. ¤See Law Commission of India, 66th Report (Married Womens Property Act, 1874). 891i-i 1nnne_ndat_iou 5.15. ln the light of tl1e above discussion, we recotrrnrend that section 5 **` "* *°*'**"* —’· should be revised as under:— Revised section 5 "5. Any appeal or airy application. other than an applieatiorr under any · of the provisions of Order XXI of the I·`irst 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. l Explanation l.—The fact that the appellant or the applicant was misled by any order, practice or judgtnent of the High Court in ascertaining or computing the prescribed period may be sullicient cause within the meaning of this section. Explanation Il.—·-Witltottt _1}I`('j((!ll(`(’ to lll(’ generality of I/IC provisions of tltis section, the fact t/tat the appe//ant or tlte applicant was niisled by any erro- neous legal advice given by a legal prattitioncr is sttUicicnt pause wit/tin J/1e niean- ing ol t/iis section, provided: (a) the advice was song/it and given lutforc t/te expiry of t/te prescribed period, whether for t/ie purpose oy t/te parnrnlar appeal or application or otherwise, and i (b) the advice was given in good ltlllll and in writing." CHAPTER 6 SECTION 6 : LEGAL DISABILITY 6.l, Where a person entitled to institute proceedings is under a legal dis- Section 6- ubjljty, some concession is obviously required in respect of the law of limitation, sggigllmvl since it is probable that the person looking after the affairs 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 tdiots. The proceedings to which the section applies are suits and applications for the exe- -- cution of a decree. Broadly speaking, under sub-section (l) (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 the 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 14 89rn nerottt or mw comix. on L1ittr,t’rtot~t ACT, 1963 (Chapter 6-.S`et·t1`on 0---/4;;:1/ Disnbi/i1y,· C/inpzcr 7~—-Section 7—Disability of one of several pe·r.s·ons) been allowed from the time specified therefor in the third column of the Seite- du1e". The other sub—scetions 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 makes it clear that "minor" includes a child in the womb. No Change 6.2. T11e extensive casc—law on the section, on a perusal, does not bring to needed. iight any problems that need solution by an amendment of the section. We do not, therefore, recommend any change in the section. CHAPTER 7 SECl'l()1\l 7 : |)|SABll.l'l`Y UF UNE 01* SEVERAL PERSONS Section ./__ 7.1. Continuing the subject of disability, and dealing witl1 a special situa- Disability of tion in that regard, section 7 provides that where one of several persons jointly Egfsoglssixiyfb entitled to institute a suit or make an application for the execution of a decree entitled. is under a disability and at discharge can be giten without the concurrence of such person, t11ei1 time will 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 members of the family, otily if he is in management of the joint family property. »M,,anj,,g Ut 7.2. The use of the expression `timc will not nin ni section 7 regarding the {gjm°;l:_m*"*"‘ disability of one of several persons has given risc to dilhcultics of interpretation not nm-; which have come to surface in a l·`u1l Bench decision of the Kerala High Courti The appeal in that case pcrtained to movable properties belonging to one Pon- namma, who died some time in 1941, leaving two sorts as the sole surviving members of the joint family. ln 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 hled a suit in 1954. ln 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 plaintiff 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 front 1951 for tiling the suit, under section 8 of the Act. 7.3. The dissenting lodge. however, held that time began to run as against both the plaintiffs (under section 7) in 1951. when the first plaintiff became the manager of the joint family, but this acquisition of majority or managership was 1/xs to married women. scc dis.-nssion in Lltapter 5_ xnprrz. ZPUIIIIOIHIPIG v. l’¢t¢[munub/riui, A.l.R. 1969 Ker. 163 ll*`.B.), 89rii ior<’r or rtw coxixm. os lI'\l1'l`\`Il<)". xei. 1963 15 ’ _ (C/mpler 7- .S`ct·1io/1 7 [)is11/2i/[/y of one of .x1·i‘e1‘¢1/ pt·r.s‘o11s) not the "cessation of disability" within the meaning ol` section 8. The entire period of 12 years provided by article 142 (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 1`rom 1958 onwards when the second plaintiff became a major. because. by then. both the plaintills 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 dilliculty. 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 disch:=rg·.· has been acduired liv one ol` them. or until the disability has ceased." However. they got over the difliculty 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 extend the period of limitation. 7.5. The expression "time will not run" also occurred earlier in section 8History of the Act of 1871, which ran as under: "Disability of one joint creditor . . 54. When one of several joint credi- K ters or claimants is under any such f 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 can be given. time will not run as against any of them until they all are free from disab¤l¤ty." Section 8 ofthe Act l877 reads as under: "Disability of one joint creditor . 8, When one of several joint credi- tors or claimants is under any such disability 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 of them becomes capable of giving such discharge without the concur- rence ofthe others." ]]]II.S'ZI‘(l/[O/IS (a) A incurs a debt to a lirm of which B. (` 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. (` and D. (bl A incurs a debt to a lirm of which [T. F and Ci are partners. E and F are insane. and G is a minor. Time will not ran against any of them until either E or F becomes sane. or G attains majority. The expression "timc 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 disability or inability to institute a suit or make an application stops it. I6 89Ttt RFl’t)l<'l' or i xw ('t>T\l\ll\Z. ON ll\lll.i\’Il(il\J Act`. l963 (C/nipior 7 Sttrtioii 7 I)isa/vi/ity of our of .scrt·ru/ ])('l'S(?Il.\`l English ACL 7.6. lt may be of interest to mention that the difiiculties arising out of the expression ‘time will not run`. as respects persons under disability. are not present in section 22 ol the UK. Limitation Act. l939 (so far as is ntateriall reads as underr- "lf on the date when any right of action accrued for which a period of limitation is prescribed by this Act. the person to whom it accrued was under a disability. the action may 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 hrst 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 plaintiff. 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. bag/Sn 7.7 ln regard to the American Law C'orpu.v· ./nris Semmluni states the ' position thus: l "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. ln 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 l`ClllO\'C(l”. 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 ol` limitation itself is postponed. N°°d l'" 7.8. As the ex ression "time will not run" (in section 7) is giving risc to amendment _ _ _ _ __ _ _ . . _ difficulties of interpretation. we are ot 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/‘ R°°"mm*“‘l*"i""- 7.9. ln the light ot` the above w.- recommend 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 section 6. then - ‘H&lsbury (4th Ed.). Vol, ZS. page 3HR_ para 868. Sec also Vol. 24. para P<9*.l et seq. *Paragraph 7;] to 7.4 azrpru. 3For the dratt see paragraph 7,9 t`HftY1. SQTH REPGRT or Law comm. or INDIA on THE LIMITATION ACT, l963 ` 17 (Chapter 7——§'ecrlion 7»-—Di.s·a/Jili/y of one of several persons. Chapter 8—Secti0n 8—~Special Exceptions to the Provisions Concerning Disability. Chapter 9-- Section 9-(`onrinuous Running 0f»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 A persons: (b) if no such discharge can be given, the provisions of section 6 ihall 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). , ( CHAPTER 8 SECTION 8 : SPECIAL EXCEPTIONS TO THE PROVISIONS CONCERN- V ING DISABILITY 8.1. Section Ei provides that the provisions conceming disability (sections Ospecial and 7) do not apply to suits to enforce rights of pre-emption. nor shall be %’;;°g;:"fl:ig;s deemed to extend, for more than three years from the cessation of the dis-concerning I ability of the death of the person affected thereby, the period of limitation of d‘“b‘h*Y· 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 21 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. I 8.2. The section has not caused any serious difficulties or controversies, and Nodilgnnge does not seem to require change. me A e CHAPTER 9 V _ ‘ SECTION 9 : CONTINUOUS RUNNING OF TIME if 9.1. The general principle that where time has begun once to run, no sub- gcctip;nu9—- _ sequent disability or inability to institute a suit or make an application stops .it.rp°:.;ing°‘;'Q is incorporated in section 9. There is a proviso to the section. very limited in itstnmc. operation, tothe effect that where letters of administration to the estate of a P 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. ;;£:¤H° lcf. section l6( 3). C ` _ 4-14 Mot LJ&.CA]ND!83 18 __ 89TH REPORT OF IAVJ <"o\mN. OF INDIA ON THE LIMITATION ACT. 1963 I ((`/mprrw lr} Swiirrzr /0--Suii.v A gziimr Trrislwx) CHAPTER 10 SECTION 10 : SUITS AGAINST TRUSTEES g$Eg°;‘g;£1§ . 10.1. Section 10 is one of those very rare statutory provisions which grant ` ryumcsynd 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 specitic purpose are not barred by "any length of time". The same prin- ciple applies to suits against the legal representatives of the tmstee 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: . "Explanati»>n.-·For the purposes of this section. any property compri- sed in a Hindu. Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specitic purpose and the manager of the property shall be deemed to be the trustee thereof." History of 10.2. The main paragraph of the section is based on early decision and ggmgfgh. certain statutory 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?-‘ ` History 10.3. The Explanation. of course. does not occur in the English statutory `gxggsnaticnl 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 1929) to override certain indi- cial pronouncements. These were decisions of the Privy Council relating t0· Hindu religious endowments as well as Muslim religious endowments. ‘·" The V _ Privy Council held that property dedicated to God (in the Case of Hindu en- - dowmentstdid 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 mutawqlli 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 1908-~a provision which has been carried over in the present Act. , lcf. B. K. Mukherjee. "I—I?ndu Law of Religion and Charitable Trusts" (4th Edition 1979) page 298——313. para 6.69 to 6.92. 2Cf Girindcr Chrmder v. Muclciiitoylr, (1879) I.L.R. 4 Cal. 897. 3Section 19. Limitation Act. 1939 (Eng) (See paragraph 10.6 infra). , ` ‘CT. C']1l.11f(Il’77tZ}’1 v. Khmzdvran. A.1.R. 1928 Bom. 58. 51/idya Varurlii v. B0/usami Aiyur AIR. 1922 P.C_ 123. 41 M.I..J. 346. '*A/vdur Rahim v. Namizz Dam AIR. 1923 P.G. 44; (LR.) 50 Cal. 329 ‘ . 7Civil Justice Committee Report. (LR) 50,.Cal. 329, followed by Council of State Bill No 8 of 1927. °Sce. for other rulings before 1929. B. K. Mukherjea. Hindu Law of Religious and - Charitable Trust & (4th Ed. 1979), pages 301-304, para 6.74 to 6.78. - E911; 1u;P01:’1i or 1.n.w comm.. Ol mma ctx im Liitilinait it yu; $(5 19 (Chapter 1U·—5ec!iwz lU——Suits Against I`1m.•c<‘s.) • 10.4. We have consiiéeicd the question whether the Explanation to section Need fu 10 should be extended to Sikh and Jain emiowiiicnts, and have come to the§‘g‘é°g;;kh conclusion that the scope of the Explanation should be so widened. 'fhe mode cgdqwmerits. of creation of these endowments in not, substantially dilierent (rom that in vogue . amongst Hindus and Buddhists. {he practice of having ai "n1anager" without _ formally constituting him a ‘trustec` is prevalent in regard to Sikh and Jain en- dowments also. The section of the public interested in these endowments would, therefore, need the protection toiifcrred by Explanation, to the same extent us those already entitled to its benefit. lt may be repeated that the Explanation i t became necessary in view of the fact that certain judicial decisions took the view that in the case of Hindu endonnieiits, there is no express trust as such, and the concept of trust which implies thc vesting of property in the trustee, could not be appropriately applied to these endowments, because there is no vesting of property in these n1anagcs·s.·` Similar was the view regarding wakfs. To override this judicial pmnounccineiits, it became necessary to provide, tirst that in such eases the endowmciit shall he dccined 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 thc trustee. The background against which the Explanation . camo to be inserted is to be borne in mind in suggesting its extension;. _10.S. The express mention of Hindus, Muslim and Buddhist endowments N°°€*f{°‘ and the omission of mention of endowments of Sikhs and Jains may create an;,€;€5;:O¤_ impression that Sikh and Jain endowments are excluded from the benelit of the section. The practice of creating trusts for ‘charitab1e purposes is as much pre- valent amongst persons following these two religions as it is amongst Hindus, i Muslims and Buddhists} There is, in our view, hardly any reason why these two communities should be excluded from the beneficial priwisioiis of the Explana- tion. A Accordingly, wc recommend that the existing Explanation to section 10 should be amendedt suitably, on thc lines mentioned above. 10.6, To proceed. now to at cliil`ci’e11t aspect ol section 10 it may be stated Tmmc who that the British Parliament felt that thc corresponding seetion L9 of their Limi- i» also; tation Act, 1939 was working unjustly on an ‘honest trustee’ who was also a?§§°€_§§Q}1 beneficiary under the trust. Thus if ‘X` is it trustee of, and heneticiary under aftrtr 1980. trust along with three more beneticiarics A, B and C, a titth person D can suc without any barrier of limitation to recover the full amount of the share of the- trust property to which he would have been entitled and obtain satisfaction out of the share of X, the trustee ebeneliciary 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 20*); share. his entire share will be carved out of the allotment if X which is only 25% of the entire assets leaving him with only 5‘;]. The amendment effected by U.K. Limitation (Amendment) Act. 1980 has come into force on lst May, 1980. Now. after the amendment, X will not be divested of the 20% share, but only of the excess ` Section 19 of the U.K. Act of 1939 as amended in 1980 now reads as under:-— ' \ ;Paragraphs 10.1 and 10.2. sivpm. . _ _ $3§.$“E'§‘Z.‘i,L°S‘]€}}f}I§;m...,d AW m.i.t,,..· rim) im. 56 xii. ni. ns ti~.e.>, nd me · m pqi?g}i2?\i~1\1?hi1cijigriliiidu Law nl` l{·:1igious and (Charitable Trusts (4111 Ed 1979), page 328. para 7.tE. — - _ _ . . *See. for the suggested amendrnens, pam 10.5 rrzfrce. K I 20 89TH RIEPORT or mw co1~1MN. or INDIA ON rut; L1M11‘Ar1oN Aer. 1963 (Chapter /O-~-Section I(}—Suits Against Trustees.) "l0. (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 ti 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." U Dcsimbmty l0.7. Though the problem sought to be remedied by the recent amendment of adopting to the English Actl has not arisen in any case decided. the amendment incor- . SQZVEQSFI porated a salutary rule of equity and hence we recommend its adoption in our Act.' Recommendation 10.8. Accordingly. we recommend that section 10, should be rc-numbered _ as sub—seetion (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- V "(2) Where a trustee who is also a beneficiary under the trust receives ' or retains trust property or its proceeds as his share on tz 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. · i (3) The 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 : -—— "Explanation.—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- I pose and the manager of the property shall be deemed to be the trustee thereof." ‘Paragraph 10.6 supru. _ ‘ “For the draft, see para 10.8 infra. Q . 89Ut uurottt or mw comm. oi INDIA ON THE LIAEIIATION ACT. 1963 21 (C/iapter 1/—» Section I1, Suizs on Foreign r0usr·s of Action.) CHAPTER ll · SUITS ON FOREIGN CAUSES OF ACIION {_ . r 1l.l Whilc section l0 was a negative provision excluding from the scope sultan tra- of the Act certain kinds of suits. section ll(l) is a positive provision to the E`r;;2;;*:1“‘;n0 clfect that suits instituted in the territories to which this Actcxtends 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 subsection (2), rules out the application of foreign rules “ of limitation by providing that no rule of limitation in force in the State of Jammu & A 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 i country or in Jammu & Kashmir unless two conditions are satisfied. namely: (a) the rule has extinguished the contract. and 4 (b) the parties were domiciled in that State or in the foreign country dur- ing the period prescribed by such rule. g 11.2. The section is based on the principle well recognised in private inter- 4 national law in the Anglo-American Legal Systcms~»that rules of limitation are P"““'pl°· part of the lex fori. Whether an obligation is to be enforced or not depends ex- J clusively upon the law of limitation of the forum in which the suit is brought. As observed by Story very long ago} "lt 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 (lex fori). otherwise the suit will be dismissed? In contrast, the foreign law ol prr·.x·rripr1'orz 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 pusmm ` to enforce rights created by the Treaty of Rome (which established the Euro-:23;; pean Economic Community), the relevant limitation period is that fixed by thqoi Rome. State in which the action is brought} 11.4. The traditional English rule is well settled. ln Prestenpand Newson on The English Limitation of Actions. the authors wrote as follows under the heading "PrivateL=¤w. A 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- p ween all systems of private international law that matters of procedure are to be determined by the lex fori. ln so far as the Statutes of Limitation pres- _ cribe periods within which actions may be brought, they are, in English courts, classihed as methods of proceeding." i lstory, Conflict of Laws. (Sth Ed.) Article 577. page 794; Cf, Rmltrzzulroye v. Lu]/iwblmy, K (1852) 5 Moo. LA. 233. 265. 267. (RC.)- 1 ”Halsbury 4th Ed. Vol 28 page 266 para (M6. . 3Prc$ten and Ncwson, Limitation ol` Actions (l940). page I6, quoted in Rodriguq; v. R, J. Parker, (1966) 3 W.L.R. 546, Ct, ibid. (1953 cd), page 15 ttm material change). 22 `891`1{ R1j1’()R"1` or LAW po1»1MN. 01- 1ND1A ON lllli L11\1l1A"1I()1\ Aoi. 1963 (Chapter 11--»-Section ll-——»Suits on Foreign causes of Action.) A Referring to Don v. Lipnmnn,* the authors observed} ( "But a foreign rule of limitation is not classiticd as a matter of procedure in an English court if it extinguislics the rig/it as well as the remedy. The fact that on expiration of the foreign period the plaintiffs right is to be extingui- , shed does not help a plaintitl who fails to sue in England within the English . period, but a defendant may rely on the CXtl1lgUlSl1fIlC11[ by the foreign period ' 1 irrespective of whether the English period had elapsed ............ " `Rcmwnmnt 11.5. The rule has also been incorporated as Rule 604 of the Restatement of Q - Law of the American Law institute thus." Rule 604-Foreign Statute of Limitations "1l` action is not barred by the statute ol limitations of the forum. an action can be maintaineditliough action is barred in the State where the cause of action arose." Criticism by 11.6. Cheshire and North have observed‘, criticising the English approach Cheshire and gg under;-- _ North. 1 “Eng1ish law in unfortunately committed to the view that statutes of limita- K tion, if they merely specify a certain time after which rights cannot be en- _ forced by action. affect procedure, not substance‘ ........... I ...... In the result, 2 ` therefore, any relevant statute of limitation that obtains in the lexfori may be A 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 eject. "This is another exanipic? where English law. through its failure to in- ‘ terpret a foreign rule in its context has gone astray". 1 Status quo 11.7. The U.K. Law Reform Committee in its 21st Report tcolt notice of r¤¤¤mm¢¤d¢d this criticism, but did not make any recommendation in this regard; by U.K. Law _ Reform “ . . . . . . c`ommitte•.\ As we have explained. English law treats limitation as part of the law i of procedure. An English court will, therefore, always apply English law p i · lex fort) 'to an issue of limitation, notwithstanding that the substantive rights in question are governed by foreign law? ln 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 1aw’ 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. _ · 1Don v. Lipmurui t1837) 5 C1.&Fih.v1. - _ i E W ' . 2See Preston & Newson. Limitation of Actions t194t1). page 16. quoted in Riidrigrteg v. R. J. Parker, (1966) 3 W.L.R. 546, 560. _ 3A.L.I. Restatement of Contlict of Laws. Rule 604. _ *Cheshire and North. Private International Law. tltlth Edition. 1979), page 695. ` 5Radriguc; v. R. J. Parker (Male), (1967) l Q.B. 116. 131-136 and see Pedreren v, Yoiurrz. (1964) 110 C.1..R. 162. _ _ ____ · tfhig has been followed even in Australian jurisdiction. Pnno;;a & Co. Pty. Ltd, v, ` A/lied Interstate (Old.) Ply. Ltd., (1976) 2 N_S.W.D.R. 192. · 71,qw Reform Committee. 21st Report tfmnd. 6923) (September, 1977), page 30. “Harris v. Quinc, (1869) L.R. 4 Q.B_ 653. SUTH REPORT OF Law r·oMM>1. or mmm tm THE LIMITATION ACT, Wo} ’ _ 23 ((`/mpnr ll-- .S`r·t·1ion / I .9uiJ.<· on FUf'l’l·_!{ll m·u.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. Mann `a memorandum arguing persuasively in favour of making a change in the English rule (which has been heavily criti- j cised by academic writers)‘ and we think it right to mention the matter so that it may be considered as a possiblelsubject for reform." . 11.8. Besides Cheshire another team of distinguished aulhors’ have also C.rititi~m— Sykes and attacked this principle of English law thus: Pl-yles' "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 law;“_ it also means that an action cannot be brought in Australia if barred by an Australian statute of limitations. though action · ‘- V 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- C¢>¤T¢¢\- _ mr. the criticism mae by Cheshire of the tmaatehai English Rule (which hhs"‘"""“°“· 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. lt 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 lE.g. ID. Falconbridce. Fssavs on the Conflict of Laws. 2nd ed.. Ch. 12. Cheshire. Private international Law. 9th Ed. lcd. North). pages 687-690. '¥Svkes and Pryles. “Australian Private international law" fl‘P7‘?l. page l30. 3As (in the English context) in the case of so~calIed adverse possession of land and in some cases of` failure to take action in respect of chattels. . *Huhen v. Stafner, (l835) 2 Bing {NC.) 202: l32 ER. 80. See Sub}mrov.rk_r v,·Wmm_q, {1968) 3. N.S.W.R. 261 {Nagle J.), *Harris v. Quine, fl869) LR. 4 QB. 653 (Court of Queen’s Bench}, ‘Briti.rh Linen C0, v. Drrmzmond, (1830) l0 B & C 903; IO9 E.R._683. 24 89TH ItEI>0IzT oF LAW COMMN. OF INDIA ON THE LIMITATION ACI. 1963 ((`/l(I]7](’IY ll - Sm zion // -Sui/.»· mz F(H'(’f,Ql1 (I(II/.\'(’.\' of Action.) 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 portaie of the court and is therefore rightly regarded as belonging to adjec- · tive law. t j h 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. . I A 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 theydid 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- 4 pened. Memories fade, witnesses die. documents vanish. proof one way or I 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 V 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." “ ggncaghepre- 11.10. It has been stated by the critics of the traditional rule that "a statute nmwmrl; tshe can hardly be regarded as describing a mode of regulating the course of litiga- criticism. 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 ll, section 47. section 66. section 80, section 86. Order 2. Rule 2. Order p 7. Rule 11, Order 9, Rule 8. Order 23. Rule 1 and so on. Soma 11.11. Apart from these theoretical aspects, it should also be mentioned that ggggigagf there is an important practical aspect which cannot be overlooked. When a court importance. 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 A court to study, understand and apply the foreign law in all its complexity and profusion. This would be an extremely difficult task. ‘ ` L 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. 2PaI‘a 11.6 and 11.8. Sl([7l'(I_ “Para l1_5, supra. / _ \ . · 891*21 REPORT or mw coMMzv.0r1NotA ON THE l.IM1TAT1ONiACT, 1963 Z5 I ((7l(l[J!6‘l‘ I/——·.S'<·¢·rion I/t eSui1.s on Foreign causes of Action.) 11.13- We may add that on grounds of policy also, a court ought not to be l'{0licy'con· bound by the rules of limitation applicable under a foreign lex causue. The time “'d°’°“‘!'”· limit may be either unreasonably short or unreasonably long; · 11.14. It is not always an easy task to ascertain foreign law. This could Difficulty prove an onerous burden on the courts. The burden would be all the more one- §.:ga§§;g;°` rous for the Indian courts to ascertain the foreign law of limitation of 150 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. Therefore, we see no reason to disturb the principle underlying sec- Suits ont » tion ll. Some matters of detail concerning the section may now be dealt with. Six)? gum Though sub-section (2) of section tl 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 J 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 or the Act of 1871 _provided as under:- Emu . .. .. .. ·¤·=¤<>i¤*¤f "12. No foreign rule of limitation shall be a defence to a suit in British ¤’¤¤W 0f India on a contract entered in·to a foreign country, unless the rule has ex- Swim 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 11 of that Act read as under:——— _ "ll. Suits instituted in British India on contracts entered into a foreign l 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 _ extinguished—the contract, and the parties were domiciled in such country _ during the period prescribed by such ru1e." 11.17. In the draft Bill of the Indian Limitation Act, 1908 no change from (;.,mm,m. - the Actof 1877 was proposed as regards this section. However, one commcnt‘ Gg3$;l°“b . was received which was as u11der:— ` — -"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: 'Dickic & Co. v. Mun. Board, A.l.R. 1956 Cal. 2l6_ 219 (Bachawat J.), “ 2Nabihhni Vrrsfrbhai v. Dayabhai Amulak, A.l.R. 1916 Bom. 200, 201, 202: I.LR. 40 r Bom. 504. V . ’Ruckmub0yee V. Luloobhoy Mothchand, (1851-1855) 5 M.I.A_ 234 (P.C.). ` . *1-LS. Phadnis, Acting District Judge. Khandcsh No. 2, 751 dated 30th November, 1907, National. Archives Pa-pers. -,\ 5-14 Mof LJ&CA]NDi83 _ A _ 26 89TH REPORT or mw c0MMN. or INDIA ON THE I.IM1TATIoN Acr, 1963 ` (Chapter II —Se4·/iw: /1» »—Snits on Foreign causes of Action.) » action in respect of which arises in foreign country, are subject to these ‘ provisions." s · This is an interesting comment raising as it does a point which we our- ‘ selves have apart from the comment pursued. Nad gm- 11.18. To revert to the present section and current needs, we wish to point glftilgélagm out that the principle ot` 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 different U ‘ approach as to non-contractual causes of action. We think that the section should be widened} l sgcticn to 11.19. There is another point in regard to which also thc ambit of the sec- . 3: Sfgggggf tion can be conveniently widened. The section, as it stands at present, is con- ` ings other fined to suits; we are of the view that it should be extended to all proceedings. than Suits- Although proceedings other than suits wheneinthe 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 ll 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 ll is based— a matter which has been already elaborated in the preceding paragraphs°¥should 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? . Recommendation. 11.20. In the light of the above discussion, we recommend that section ll ' ` should be revised as undcr;—» l i Revised section ll a A "ll. (1) Suits and other proceedings instituted in the territories to ‘ ` which this Act extends on causes of action arising in the State of Jammu . i ` 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 I or in a foreign country shall be a defence to a suit or proceeding instituted . in the said territories an a cause of action arising in that State or in a foreign A _ ; country unless— • I (a) the rule has extinguished the right which the cause of action is f0‘unded: and (iz) the parties were domiciled in that State or in the foreign country during the period prescribed by such rule." 1For a draft of revised section ll, see lpara 11.20, infra. A ' *Para.§raphs 11.2 to 11.4, supra. . ’For the draft see para 11.20, infra. 89THA 1él;vui¤S *h¢ Having regard to the fact that the judgment of the Supreme Court referred ' p0Sm,,,,_ to abovei does not appear in the series of law reports usually consulted, wc _ _ consider it desirable that section 15 should contain a specific provision in this, I g 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-“ ` evcn before the Supreme Court _ Judgrnentf j \ ~ - Principle_ 15.4. Under section l5(5), the time during which the defendant has been i ‘ V ‘;§§‘jp:gcf” absent from India and from the territories outside India under the administration ` _ _ of the Central Govemment. is excluded in computing the period of limitation for any suit against such a defendant. As long back as in 1851, an action was f I Xbrought in the Supreme Court of Judicatureh at Bombay for conversion of cer- i · _ tain chests of opium. Upon a defence being raised that the suit was barred y - by limitation, as having been brought beyond six years of the accrual of cause ` _ i 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 \territ0ry . . 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 _ Hardship- ( · 15.5. The word "defendant” in section l5(5) has given rise to certain pro- cocontraqom blcms, at as much as the section does not indicate in so many words as to A 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 co! promisor in a promisory note executed by the absent defendant as well as others. This was tI1med down, but Garth CJ. 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 A 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 legistlature. if they so pleased, could easily remedy. and which has been. in fact, remedied in ‘ England by the Statute of 19 and 20 Viet.. c. 97." A His brother on theBench Markby I.. pointed out how the rule had been modified in England: ` e ` , "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 I 1Shamamniandas v. D. Mirmrnal. (1976) Unreported Judgment S.C. 232. j ’Shanra»ran~jandas v. D. Misramal, (1976) Unreported Judgement S.C. 232. , 3Chanbasappa v. Halibasappa, A.I.R. 1924.B0m. 383. 384. . . ‘Sar0j Ranjan v. Jay Durga. A.I.R. 1934 CaiT’140. 141. 5Firm Deachand Panualal v. Shubhakaran, A.I.R. 1916 Cal. 620. ` . “Kiran Shashi Debi v. Chandrika Prasad, A.I.R. 1916 Cal. 620. I ‘ "For the draft, see para 15.19 infra section 15, Explanation I, as proposed. V 8Ruckma·h0yee V. LuII00/vhoy Matichand. (1851-1855) 5 M.I.A. 234 (P.C.).· , _ °Statute 21 James I Ch. 15 and,4 Anne. Ch. 16. _ _ . _‘°Hemendro C00mar, Mullick v. Rapndrq Lal Moonshee. (1878) I.L.R. 3 Cal. 353, 3€2..~ ‘ :__ “King v. Hoare (1844) 14 L.], ;g§‘1 694, 702, 703, 704. 89TH mavonr or mw coMMN. or INo1A ON rm; L1M1TAr1oN ACT, 1963 41 Q F (Chapter 15—Section 15-~ExcluSion of Time in certain other cases.) H — ancient Roman law. But it must be bome 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 j · Mansneld also expressed the opinion in Rice v. Shure that all contracts with ` — partners were joint and several, and the rule in King v. Hoare has been since I 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 Y 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. Hoare be combined e 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 N1! of the Indian Limitation Act. 1908 was circulated Comment, A for comments, the injustice arising out of such an interpretation formed the sub- , ject matter of the comments of one Mr. M. Gupta:— e "Section 13 [present section 156)] of the Act might bc 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 _ l 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 commu;. observations. . *. DF- whim? ` ·· Stokes. , 15.84 In England, section ll of the 19 and 20 Viet., e. 97, had removed " ' " S the anomaly pointed out by the Calcutta High Court. The section treads; "11. 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 su_ch 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 t — *King v. Hoare (1844) 14 L.J. Et. 29 : 67 R.R. 694, 702, 703, 704. ZM. Gupta, Barrister-at-Law, Hoshangabad. Annexure ll to the letter No. 2063, dated 19th December, 1907 from the Chief Secretary to the Chief Commissioner, Central Pro- vinces to the Secretary to the Govt. of India, Legislative Department, National Archievn mel *Stokes Anglo-Indian Codes (1888) Vol.2 page 950. , 7-14 Mcf LJ&CA[ND/83 ‘ I V 42_ 89rrr Repoar or LA\V comin. or INorA ON me LIMITATION Aer, 1963 A V (Chapter 15—Seetion l5—Exclusion 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." Law_ Com- 15.9. The difficulties raised by the Calcutta judgement, as well as by cases of a";;? on ' other*High Courts, were considered by the Law Commission in its Report on . Conti-act Act. the Contract Act, 1872‘ and we reproduce. below their observations from that Report:- X · ‘ 4 "70. The Contract Actttreats 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 promisec ; ‘ — against one out of a number of promisors. In the words of the Federal ` Courtz, unlike English Law, the Indian Law makes a general liability joint · s . and several, in the absence of an agreement to the contrary. It`is, therefore, open to the promisec to sue any one or some of the joint promisors and it is _ I “ no defence to such a suit that all the promisors should have been made l I A parties. We think that Strachey, C..I., correctly stated the law in Muhammad Askari v. Radha Ram" when he said:. The doctrine now rests not so much C on King v. Hoare‘ as on the judgment of the Law Lords in Kendall v. Hamil- ton”. As explained in these judgments, the doctrine that there is in the case of a joint contract`a 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 s obligation. _ The right was in England enforceable before the Judicaturc 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. Cessante ratione legis, cesswt ipsa lex.“ The result is that a decree obtained against some of several joint promisors remaining unsatisfied ought not to be held . I as a bar to a subsequent action against the other promisors. We recommend that this result may be incorporated in the Act byinserting a new seetion’." ~ After making these observations, the Law Commission recommendedf the insertion ofa new section 44 A as follows in the Contract Act:- "44 A. Effect of decree obtained against one promisor.——A debx ' 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, 1872),'.pages 32-33. zlainarain v.' Suraimnll, 1949) 12 Fed_ L,]. 216, 225. . 322 A11. 307. ‘King V. Hoare (1844) 153 E.R. 206, 67 RR- 694. 5(l879) 4 A.C. 504. - . 622 All. 307 (311, 312). "Vide section 44A, Appendix I (of the 13th Report). X ”Law Commission of India, ·l3th Report (Contract Act, 1872), App. I. section 44A. • 89rn izrroar or LAW coinun. or Iuom on me mnrxrrou ACT, 1963 43 (Chapter 15-Section l5—E.tclusion of Time in certain other cases.) 15.10. Another point relating to section 15 is concerned giith cases Where Agent in i the defendant had an agent ih India. A Full Bench of the Calcutta High COll1'1.1;r&.':;° of. decided that section 13 of the Limitation Act, 1877 which excluded the time ( during which a 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 case of thc same High Court} and observed:-- ' "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 be 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. Garhercolef 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. V 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 jefence, 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 during.the_period of absence, carrying on business in Biitish India through an authorised 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 ol words to the effect I have stated ab0ve." 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 Ha1rington’s case," the division bench had held that section 13 of the 1877 Act did not apply to a case when to the know- i ieege of the plaintili, 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: l "Thc Judge relies on section 13 of the Limitation Act, which provides that ‘in computing the period of limitation prescribed for any suit, the time - *Poorn0 Chunder Chose v. Sassoon. (1897) I.L.R. 25 Cal. 476 (F.B.). 2Harrington v. Gonesh Roy, (1884) I.L.R. 10 Cal. 440. ‘*Hawkins v. Gathercoic, (1856) 6 De G.M.&G·. 1. * ' 4BOdd£II1 V. Morcly, (1857) 1 De G & Jones 1{23). . *Harringmn v. Ganesh Roy, (1884) I.L.R. 10 Cal. 440, 442. - - • 44 89rn maroar or LAW coMMN. or INDIA ON me Lnvrrrxrrou [scr, 1963 · V (Chapter 15—Section 1s—Exr—1uszrm of Time in certain other cases.) during whig the defendant has been absent from British India shall be ex- . cluded’. He goes on to say ‘admittcdly Mr. Harrington,’ the defendant in . t I 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 .ludge`s interpretation of section 13 were correct, there would be no limitation at all as against a proprietor residing in England, although A suits might be conducted for and against him through his agent in this coun- i 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 i · " r 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 l5(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 I 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—eonsi- 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} Aspect or 15.14. It could as well happen that a judgment against the defendant, ope- » fsxgict °r rating through an agent, would be inconformity with the tengts of private inter- A, ` 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. I · Thisaspect in any case is not directly material to the present issue. · In view of the above discussion it is desirable that a suitable Explanatiok - should be added to section l5{5) on the above point? . _ 15.15. We now deal with another situation to which section l5(5) applies. 2$i&am°° Considering the number of indians going abroad for trade, commerce or seek-. abroad. 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 difficulty, in the court of that country where they were so residing. In such a case, it would be unjust to allow such a plain- tiff 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, . L ` outside India and could have sued the defendant in the foreign country. L- . W 15.16. A situation of the nature contemplated above is not merely hypothe- - ticai; such a cast} 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·Rao A.I.R. 1929 Bom. 14, 20. 2See para 15, 19, infra; section 15, Explanation II, as proposed. 3Mah0med Itlusech-ood-deen Khan v. Clara Jane Museeh-00d-deen, 2 N.W.P.H.C.R. - I€Il3d(cgge(1préd§r Limitation Act of 1859)—-quoted in Muzhukanni v. Andappa, A.I.R. 1955 L COMMN. OF INDIA ON THF LIMITATION ACT, 1963 45} (Chapter 15-Section l5—Exclusion of Time in certain other casest) This was a suit brought in by a wife against her husband for the recovery iw 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. A I 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 l5(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: "lt‘ 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 l 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 e this was the intention of the legislature. lt, would seem that in the Act no prvvision 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 acfiorn accrues, both parties are residing in one and the same foreign country possessing tribu- y 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 c indulgence, shown to suitors, we are bound to give full effect to the lan- guage in which that iridiilgeizcejs conceded." ` ’ I 15.17. The judgment referred to above raises two important issues: first, Questions V I 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 ’h° l“d¥m°¤*· 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 l5(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 ll. However, ? the second limb of the suggestion in the judgment, namely, that the benefit of section l5(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 I ' advantage of an extension of limitation period. Accordingly, we recommend that an exception should be engrafted on section l5(5) on the subject? 15.18. The draftsman of section l5(5) may not have focussed his attention on the possibility of a defendant Hitting across the globe more than once during the Sjpcgugt period of limitation. But scientific advances in jet propulsion have made such xxi}: · A s. _ . 'Emphasis added. ' 2See discussion as to section ll, supra. (Chapter ll). _ _ · °See para 15, 19 infra Section l5(5), Exception as proposed. V x 46 89m Retour or Law comin. or 1NmA ON THE LMTATION M11, with (Chapter 15—Section 15~-Exclusion of Time in certain other cases.) n / t (Chapter 16·—Scction l6—Eh‘ect of Death on Limitation.) frequent trips possible. The courts have dealt with such at situation and given ` to the plaintill the right to take into account all such periods during which the defendant was absentf-“ 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. , . Recommendation 15.19. in the light of the above discussion, we recommend the following ;`;g£)‘;¥l'g’ 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:— · _ ` · "Exception.—-Nothing 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 g - and the plaintiff was aware of the residence of the defendant; and (b) there were, in the foreign country, properly constituted courts or A tribunals to which the parties had, or could /1ave 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 uttachtnent of a decree under rule 53 of Order X XI in the First Schedule to the Code of Civil Procedure, 1908 does not A amount to a stay of execution of the decree within the meaning of su·b·scc- , tion (1)*. . "Explunation Il.---For the purposes of this section, a defendant shall not be deemed to have been absent from India during any period during which he had, to the knowledge of the plaintiff, a duly constituted agent in India, authorised to institute and defend legal proceedings on his behalf in lndia."‘ i (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 promisorsf " CHAPTER 16 _ SECTION 16 : EFFECT OF DEATH ON LIMITATION · _ ·v 16.1. The general principle is that when a right to sue accrues to a person . sEg;§°0f6` during his lifetime, his death thereafter does not suspend the running of limita- dwh ¤¤ ¤¤‘ tion. The reason is, that time commences to run at once (in general) and] as the before the . . . . . ucmalof Act puts rt, once time has commenced to run, no subsequent rnabrlrty to sue stops thc fight *0 or suspends its running. ` sue. *Mohammed Suluiman Rowther v. N. K. Al. Mohammed Ibrahim (1967) 2 M.L.I. 483. Elsmailji Haji Halimbluzi v. Ismail Abdul Kadar, A.I.R. 1921 Bom. 460, 461 : I.L.R. 45 - * _ Bom. 1228. “See para 15.17, supra. ‘See para 15.3, supra. I 5See para 15.14, supra. ‘ “See para 15.9, supra. "Secti0n 9, Limitation Act, 1963. , ’ " 89ru rneeorzr or LAW com-1N. or INDIA ON rms LIMITATION Acr, 1963 47 (Chapter l6—Sec1ion l6~E[t'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 l6(l) of the Act provides that the period of limita- tion shall be computed from the time when there is a legal representative of the deceased capable of instituting the suit or application in question.. While section l6(1) deals with the death of the would-be plaintiff, section l6(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 Il suit or make an application for enforcing the cause of action in question. A However, section 16(3) provides that nothing in sub-section (1) or sub-sec- ~ ‘ tion (2) applies- I ` (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. R y The exception takes out these suits, presumably because the application of the section to such cases would tend to create insecuritv of title} Moreover, the period of limitation for suits for immovable property is generally twelve _ years, and no hardship would be caused by the non-existence 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 . with the operation of this rule. 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-emption? _ 16.2. The Law Commission} relying on the Privy Council case of Mcfyyappa _ V. Subramapya,5 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. Q No change ` ‘ · needed. .` 1Cf. Kesho Prasad V. Madlio Prasad, (1924) I.L.R. 3 Pat 880. l 2Sections 6-7. . · “Section 8. ( ‘Law Commission of,India, 3rd Report, Page 21, Para 47. . 5Mayyappa v. Suhramanya, 30 C.W.N. 833 (P.C.). “Meyappa V. Subramanya, (1916) 20. C.W.N. 833 (P.C.). * 48 89TH REPORT OF LAXV c0MMN. OF INDIA ON THE LIMITATION ACT, 1963 (Chapter 17——Secti0n l7—Fraud and Mistake) CHAPTER 17 A _ l FRAUD AND MISTAKE _ swim;. 17- _ 17.1 In general, a peron’s ignorance of his right tb sue does not suspend . 553:,* gf the running of limitation. However, it has been recognised for a long time that mistake on “the right of a party defrauded is not affected by lapse of time ...... so long as "mi'°'i°”· he remains, without any fault of his own, in ignorance of the fraud which has _ I · 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 ol detail _which are dealt with in the section will be A 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, , there is a third case where the Act gives a power t0 the court to extend the period of limitation on the ground of fraud. Where a judgment debtor has, by fraud I . c 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. Sources Og 17.2. The section ,may appear to be rather long; this is due to several fac- *h° °°¤*°¤*§ tors, mainly historical. The main subject of the section—fraud-was dealt in of the section. . . V the Act of 1908 111 section 19. · However, that section did not specifleallyrdeal 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 Reportz 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. I - 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 or 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 plaintilf." _ Thus, fraud and mistake are the matters dealt with in section 17(l). Sub- section (2) of the section, relating to fraud or force preventing the execution of a decree, isderived from section 4S(2) proviso of the Code of Civil Procedure, A » 1908. · - *R0Ife v. Gregory, (1864) 4 De G.], & S. 576. 579 (Lord Westbury). I ’Law Commission of India. 3rd Report (Limitation Act, 1908) page 21, para 48-49. ` “Section 26, Limitation Act, 1939 (Eng.). ` _ » ` 89m nsroxr or LAW comm. or mms ON ms Lrmmmon Aer, 1963 ` (Chapter l7A»»Secti0n 17-—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 tind a place in the Limitation Act, in the section dealing with fraud} 17.3. At this stage, it would be useful to,referito certain developments in Comparative A this Held in the 'United Kingdom. Section 26 of the U.K. Limitation Act 1939’,°I;°d‘}ZD°£nd as it stands after its revision by the Limitation Amendment Act 19803 is repro- English law. duced below as of interest; _ T‘P0stp0nemtent of Iimiimion period in case of fraud, cvncealmerzt 0r mis- take. ` V . ~ . 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-, l (a) the action is based upon the fraud of the defendant; or V Q (b) any fact relevant to the plaintiffs right of action has been deliberately ' concealed from him by the defendant; or ( ` _ (c) the action is for relief from the consequences of a mistakes; » “ 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. e · · . _ (2) For the purposes of the last foregoing subesection, 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 enablle any aotion— ‘ · s (a) to recover, or recover the value of, any property; or Q · (b) to enforce any charge against, or set aside any transaction affecting, any . property; · ~ D g 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 r the case may be) the transaction in which the mistake was made, took place. » · ‘ (4) A purchaser is an innocent third party forlthe purposes of this section- _ (a)` in the case of fraud of 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 that fact and did not at the time of the pur- g ’ chase know or have reason 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,). , . 3;l4 MefLI&;CA/ND/83 ’ ( ( I,. _ ` 50 89TH REPORT or LAVV coM1vIN. or INDIA ON THE LIMITATION ACT, 1963 ` - ‘ Q (Chapter l7——Seeti0n 17~—F mud and Mistake) Q ‘ Wide meaning 17.4. The English authorities have been interpreting the word ‘fraud’ yery ·§:.£°§ ?1°rd widely and have been regarding dishonesty as fraud for the purposes of the Limi- · _ England. tation Act, even if the conduct in question, would not constitute fraud at com- Q mon law}-” Q ‘~ "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.coal. 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 ja long day. Why is the one to get scot-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 Q thing", and to profess to punish it sooner or later, and then to hold out a reward - for the cunning that makes detection difficult or remote." I We do not, of course, propose any change in the Iarticle in our Act on this point. V Q Q 1 I . Freud _ - 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 cases, the father of a —._ wt caus• . 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. His non-disclosure amounted to - a fraud, both on the court and on the minor. ~ i 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 Couit‘~is also to the effect that section 18 of the Limitation Act, 1908 cannot apply to a casewhere 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. _ A I ` - The Patna High Court‘, while commenting upon section 18 (of the Act of 1908) in connection with an application under Order 21. rule 90 of the Civil Pro-_ cedure`Code, 1908, observed 2- . "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. _ Q ‘Bcaman v. A .R.T.S. Ltd., (1949) l All EIR. 465 · ‘ ’Bulli Coal Mining Co. v. Osborne (1899) A.C. 351. `Q ‘ ‘G0binda Lal v. Nalini Kanta, A.l.R. 1925 Cal. 584; I.l-.R. 52 Cal. 63. Q i *Comment in (1925) 48 M.L.I. (Journal) 31. *RamaIagu Servai v_ Solai Servai, A_l,R_ 1921 Mad 283. ' Vagdhar v. Dhgra\i, A.1.R. 1920 Hat. 725. ‘ ~ SQTH REPORT or LAW comm. or INDIA ON THE LiMrrArloN Acr, 1963 A $l· (Chapter l7—»Section l7-·Fi·aud and Mistake) A 17.6. Unlike the English law (where there is no general statutory deiinitionrh, Inggm — of "fraud"), the Indian Contract Act, 1872 defines "fraud". Case law that has law- · 3 , developed in India around this statutory definition governs the concept of fraud, ~ I so far as that Act is concerned. Limiting ourselves to the law as contained in sec- tion 17 of the Limitation Act, we hnd that it would not be inconsistent with the t 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 A 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 sufncient to _ enable him to obtain a judgment against the defendant on the ground of "fraud" . as a matter of substantive rights. » _ W · l · 17.7. As adumbrated earlier‘, in England section 26 of the Limitation 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, hwving 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 V the position! , _ . r { 17.8. We are of the view that a suitable Explanation should be added to pmdpl, section 17 of the Limitation Act, taking the substance from the English. provi- °Y EP$H*b sion as to unconscionable conducti. In principle, we find the English provision a {Jolyon useful one. . » r . *¤°°*'P°¤*°d· . $17.9. Besides dealing with fraud, section 17 also deals withrelief based on Mistake and . mistake. The use of the expression ‘mistake’ raises the question of relief claimed 3:: Sffugéitup c- by a person on the ground that a statute or statutory instrument on the strength tional ststuter of which his rights had been interfered with has been found to be unconstitu- ` tional. Thereare a few decisions of the Supreme Coiut of India on the subject, X , to be noticed presently. 3 A » i . 17.10. The Supreme Court has held' that in the absence of ·‘ any provision of Writ iuriqdic- law specitica1ly`» applicable, a period of limitation cannot be provided by judicial 3;°bz;';.d°f legislation. Nor can the court relax the law of limitation except as provided by limitation. ' a specific statutory provision? _ , l 17.11. However, a different approach is visible in the case of writs. I ` In a recent case‘, the question that fell forvconsideration revolved round the modalities of the refund of excess market fees realised 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 17.3, supra. ` 2Kitchen v. R.A.F. Association. (1958} 3 All E.R. 241, 247. “F0r the draft, see end of this Chapter. , - _' *State Bank of Bikaner and Jaipur v. C, S."\Verma, (l968)`1 Labour Law Journal 840, . 844* lllaiender Singh v. Santa Singh; A.I.R. 1973 S.C. 2537, 2547. ` » .55hiv Shankar pal Mills v. State of,Haryana, (l9B0) 2 S.C.C. 437, 438. . $2 V 89TI-I REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 · (Chapter l7—Section l7——Fraud and Mistake) The challenge was upheld and the recovery of excess of 1 per cent was held to be ultra `vires. No directions were, however, given for refund at the time when the Haryana Act 22 of 1977 was declared unconstitutional, because these v- 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 oflevies held unconstitutional by the court. But the Supreme Court observ- ed as under on this point :_—— ` A , , "There cannot be any dispute about the obligation or the amounts siuce the Market Committees have accounts of collections and cre willing to dis- gorge the excess sums. Indeed, if they tile 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, recoverpeoples p moneys, later discovered to be erroneous levies, the dharma of the situation 4 admits of no equivocation. There is no law of limitation, especially for . ` public bodies on the virtue of returning what was wrongly recvvered to whom .. · it belongs. . J , _ \ . Nor is it palatable to our jurisprudence to turn down the prayer for high . prerogative writs, on the negative plea of ‘altemative remedy’ since the root _ principle of law married to justice, is ubi jus ibi rr·nzecIium." ( ` _ 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 pf 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 ile suits before the 7 judgment of the Supreme Court? was delivered, the civil suits would have been * `, ar time. But the observations of the Supreme Court extracted above indlbate a · readiness to give 'relief in writ jurisdiction unhampered by the technicalities of limitation. · · I — 17.12. In an earlier easel the Supreme Court that observed that where a person comes to the court for a relief under article 226 of the Constitution on V 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 Ends 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 I 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 appligation. A b 4 if of ' 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 a gis three years), "it will almost always be proper for the court to hold that the I t delay is unreasonable, "were pleaded in at recent case before the Calcutta High Court‘ on behalf of the State of West Bengal as a justihcation for denying the 1K. 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. . “State of M.P_ v_ Bhailal B/1ai, A.I.R. 1962 S_C. 1008. fState of M.P. v. Bhailal Bhai, paragraph 17;12, supra. L 237 °State/of Wes: 'Bengal v. Suresh Chandra 84 Calcutta Weekly Notes! 229, I ’ / - . · 89111 REPORT or Law comm. or INDIA ON THE riummou Acr, 1963 $3 x (Chapter 17——»Sectioh l7—I—`raud 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 ‘1n ' 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 exeréise its discretion 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 E 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 DOI ` 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 I ' action is to be brought, in such`a case, the High Court should not exercise p 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 tiled 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(1)(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 Khosla’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 Bled. The Supreme Court judg- V i ` ment was delivered on 18th January 1966 and reported on lst 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 plaintiif had approached the court within three years of his _ knowledge of the decision of the Supreme Court in Kh0sla’s case, the suit would _ have been within limitation. ‘ I _ i 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 inthe 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 themistake becomes known to the plaintiff. See The ‘ ” State of Madhya Pradesh v. Bhailal Bhéd, l5“ STC 450 A.I.R. 1964 SC 1006 ` and (1965) 16 STC 689 (SC) (supra). In both these cases it was.held that Y I 1Parry & Co. v. State of Tamil Nadu, 1975 Tax Law Report 1565 (Madras). — EK. G. Khosla & Co. Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, _A.I.R. L 7 '1?66*g£e:i2(ihdia) Ltd. v. Asstt. Commissioner of-&rIes Isidore Region, Indore, i4.I.R. ,. ’ 1971 M.P. 162. · ‘f as - _ ,54 — 89TH REPORT or LAW COMMN. Or INDIA ON THE LIMITATION ACT, 1963 ‘ ‘ V (C/iuplcr 17- Y-Section l7—I*`raud and Mislakc) Clnzp/or 18-»—Sccti0n 18·—ACkll(}M‘l€dgCIll€Il[ 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- reverQ section l7(1)(c) of this new Act provides that in the case of a suit ‘ for relief from the consequences of a rnistake,_the period of limitation shall K not begin to run until the plaintiff has discovered the mistake or could with reascnablevdiligence have discovered it." Position l _ 17.16. The upshort of the above discussion is that even though Shiv Shankar - imo D0! Mills case expounds a theory that there is no law of limitation for retuming mistake ot . what was wrongly recovered, this observation was intended to indicate only , _ hwf 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. Recommendation 17.17. In the result, the only change needed insection 17 is the addition of trgxxxgigg to an Explanation to deal with conduct which is unconscionable, having regard , Section 17, · to the special relationship between the parties—a point already dealt with earlier " X . in this Chapter} For this purpose, we recommend the insertion of the following · Explanation below section l7:e— "Explanati0n.——For the purposes- this section, ‘fraud’ includes lcon- duct on the part of the defendant or the opposite party, as the case may be, ‘ ‘ which, having regard to some special relationship between the parties, was unconscionable? ` t ` I CHAPTER ’l8 i SECTION 18: ACKNOWLEDGMENT C “ , ’ Section 18- 18.1. Where a suit or application is in respect of any property or right, an Egk°£vj;£dz_ acknowledgement of liability in respect of such property or right, made in writ- inept in ‘ 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 was so signed. This is the gist of ' A V ( section l8(1). Section 18(2) deals with the cases in which oral evidence of the contents of the acknowledgment may be given. A , The Explanation to the section, in clause (a), lays down that an acknowledg- T ment may be sufficient though it omits to specify the exact nature of the pro- h - perty or right, or avers that the time fen 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 r addressed to a person entitled to the property or right. , ·. ‘ , . Linder Explanation (b) to the section the expression "signed" means signed , 7 ’ ° 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". . \ F A 1 Execu 'on 18.2. It was as a result of the recommendations of the Law Commission" U . - _ that Clause (c) of the Explanation modifying the earlier rules provides that an 1 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 1See paragraph 17.8. supra. K ._ ~ . I 2Law Commission of India, 3rd Report,; (Limitation Act 1908) page 23, para 52 and ~ M pages 80-81 Sections 17(l) and 18 Explanation., —_ · ' _ , . ¤ - t -‘ 89rn izaroizr or Law comm. or ll~D1A.ON ms Lmirxriow Aer, 1963 . · 55 · (C lzaprcr 18-- Section 18-A cknowledgcment.) . been provided) that "debt" does not inclube money payable under a decree or order of a court (section 19)*. The Law Commission was of the view that in res- _ A pect for execution there should be no scope for extension of time by acknowledg- ment or by part payments. V One writer, commenting on a judgment of the Madras High Courtg, has ob- _ servedg that the Act of 1963 the earlier labyrinth of rulings on step in aid in » ( execution have no relevance. i 18.3. Dr. Whitley Stokes in his Anglo-Indian Codes‘ has made the following Person . _ suggestion relevance to the Section ;_—- §;‘:fLm, .1 A "Section 19 (corresponding to section 18 of 1963 Act) should provide for 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 Cha"? have refused to grant the benefit of section 6 or section l5(5) (these are the rele-Pot nmdm ‘ 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 l5(5) may lead l ‘ 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 V T \ 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 Q;'Q°';g";§‘%_‘ _ 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- - A f pafément made outside the limitation period gave rise't0 a fresh cause of action l ` ex pt where the expiry of the limitation period has not simply barred the remedy, ybut extinguished the rightl-—say, in case of claim for recovery of land or ad- » · vowson. Q t But it should be mentioned that by the Limitation (Amendment) Act. 1980, which came into force on lst May, 1980, the following sub-section has been. add- ’ . ed at the end of section 28 of the principal Act: ( -- . e . "Subject to the proviso to the last foregoing sub-section, a current . - period of limitation may be repeatedly extended under `this section by fur- ( other acknowledgments or payments, but a right of action, once barred by ` . this Act. shall not be revived by any subsequent acknowledgment or pay- ment". —. q V · The enect o`f the new sub-section seems to be to prevent a cause of action from reviving once the limitation period has expired. I *Section 1.8. Explanation (c); section 19,* Explanation (b). ”Dan10daraswam[Naic/.I_R_ 1956 Junj._ 21,434 para 12A _ t U fl Ma! V. Mt1r1d11,_A.l.R, 1931 Lah. 691, 694. 14) Hdzqru Singh v. Baksliisli, ALR. 1962 Punj, 495, 496, jtb) Rannr Kumar v. Kirhori Mohan. A.I.R. 1940, Cal.. 401 4tD >yi;giT§iZ;,,”§‘?’l$2’.3.,if.?Z.$li£$·€·;l;i5‘?¢,€??>ii,,.. ins. in D.}, {I 2§s§e>YTiCf}'{. l’l3"B;°¥T“;£7""'°°4’ '·'r"· 28 *’°*"'">’ M i as v. Bhulabliu: (1932) 34 Bom. L.R, 623, A.L.R. 1932 Bgm_ 3]5_ ` _ 89rn nnvonr or uw cowvm. or mms on me t.mmmor~1 Aer. 1963 63 V (Chapter 20·——Secli0n 20 ~»At*krtow}<·rlge>1i1ent or Payment By Anofherl Person.) _ Chapter 2I~~S2ctior1-V2! Addition or Substitution 0fPnrties 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 inrthis regard. 20.12. As regards joint contractors and mortgagees, certain questions-arise persona; {WL when Mohamedan co-heirs succeed to the estate of the deceased in severalty. The l';°d;l:ia“€° 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 fathers 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? I 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 N5 change recommend deletion of the words ‘joint contractors, partners, executors or mort- 'ggifgx '5‘Om_ 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 V 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 thel“w· . particular field, such. as agency, joint promises, suretiship, guarantee, partner- ship and succession. Such an inquiry cannot be avoided. Courts have taken a o cornmonsense view of the matter. U i 20.15. In the result. no change is needed in section 20. Nv ¢h¤¤2= r needed. CHAPTER 21 SECTION 21 : ADDITION OR SUBSTITUTION OF PARTIES . I. Introductory l 21.1. The sections of the Act that have been so far considered were about septinn 21- “< computing the period of limitationwsomething concerning the period prior to§‘g§'§iO°]f or the institution of proceedings. The Act now, (in section 21) devotes some atten·substitu_tion tion to determination of the date when the proceedings are deemed to have beeng; lifééxion 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 - ——-————-—* Wathumma Boovi v. Rtziakrislma Menon, A.l.R. 1975 Ker. 91. · 2Deen Narain v. Bhaqauti Din, A.1.R. 1952 All. 116. 4 Mnnoda Charon v. Ihntu Charon, A.1_R_ 1935 Cal. 648, ` *Section 3(2)(a). . ‘ i ‘ .64 89TH REPORT or Lxw coMMN. or INDIA ON THE r.nvnTAT10N ACT, 1963 ` I ` Chapter 2/ -——Secti0n —2I—Additi0n or Substitutiah of Parties ‘ of litigation, a new plaintiff or defendant is substituted or added. In-such a case. the general rule, if taken literally, cannot a l , and one needs a s ecific provi- _ _ · .PP Y g P sion m that regard. That is to be found in section 21. Section 2l(l) enacts (in the main paragraph) that as regards a new plaintiff 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. I _ Sub-section (2)- of section 21 makes it cleaq 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 clarificationis obvious. In the hrst 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 `~ pafty transposed was himself on record, though arrayed on the opposite side. gxigoagdcd j 21-2- AS Stated above acting upon the recommendations of the Law Com- sectiqn 21(1), mission} a proviso has been added to sub-section (1) of section 21 to enable the Zggoggion by court to direct that a suit shall as regards a newly added plaintiff or defendant. the Supreme be deemed to have been instituted on an earlier date, if certain cond1t1ons are C°°m‘ 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. · r . Law before 21.3. Before the addition of the proviso in section 21(1), there was consii - ;*}°t:gd“i°¤ derable difference of opinion as regards the power of the court to add new par- pmvgm 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 addition of i 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 g know. These people have innumerable combinations and for all kinds of reason, firms with different names but the_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} Rajasthani and Jammu and Kashmir? , •— ’Cf. Law Commission of India. 3rd Report, (Limitation Act. 1908), page 23, para 54. ”I.aw Commission of india, 3rd Report. (Limitation Act. 1908), page 23, para 54, and page 81-82, section 20. See Remprusad v. Vijay Kumar, A.I.R. 1967 S.C. 278, 284. 3Bhair0bux v. Deokaran, A.I.R. 1934, Calcutta 253. - ‘ *I/yarathammal v. Somasundaram, A.I.R. 1960 Mad. 134. . 5Firm Seth Hiralal v. Jagan Nath, A.I.R. 1957 Raj. 298. ”M0hi-ud-din v. Chandra Mohan, A.I.R.`1966 K ~ 89m REPORT or mw coitnvm. or INDIA ON rm; Limmmon Acr, 1963 · 65 . (Chapter 2l—Se¢·ii0n 21-Addition or Subslirurion of Parties.) . 21. 4-5. On the other hand, in a Madras case, a foreign Erm 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 tharthere was no addition of new plaintiffs, but merely a classification of the individuals already on record} It is unnecessary to multiply the authorities. · A 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 `plaintilf. I 21.7. A peculiar situation arose in a Patna case,5 where the names of only two out of live 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- by sary party to a suit. In Madrasf the courtallowed the plaintiff to bring on re- Courts. cord the legal representatives of a defendant who had died on or before the date of tiling- of the suit,—which fact was not within the knowledge of the plaintiff. _ · H. Joint Famiies 21.9. Even though the newly added proviso to section 21( 1) takes care of Jem; Hindu such contingencies where the plaintiff has inadvertently forgotten to implead a§3£'lf;’m, 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 l]{;%§;;Pv° 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-Comment-1907 ~ 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":— *M0hideen v. V.O.A. Mohamed, A.I.R. 1955 Mad. 294. *Bhair0 Bux Mangilal v. Deokaran, A.I.R. 1934 Calcutta 253. (para 21.3, supra). °Firm Narain Das v. Anand Behari. A.l.R. 1958 Madhya Pradesh 408. ‘Biiai Ram v. Jai Ram, A.I.R. 1955 H.P. 57, 5Chaman Lal v. Firm New India Traders, A.l.R. 1962 Pat. 25. ‘Ramamurthi v. Karuppa Sami, (1979) 1 M.L.J. 298. . _ _’No. 2751 dt. the 30th November, 1907, National Archives File relating to the Indian limitation Act 1908. _ B 10—~14 M of Ll dc CA/ND/83» ‘ ‘_ ‘ · 66 89rn uproar or Luv coinm. or mom on me umtrprnon Acr, 1963, I (Chapter 2l~—Sr*c·1imi 2l»~Addifi0n or Substitution 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." Explaining the `reasons in support of his proposal, the District Judge obser- ’ ved:— ‘ _ "By reason of improved facilities for travelling and other courses, different 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 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. lt 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. Mori Covanjl 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 i the family should be joined as party plaintifi“s." = Qgmmgnt 21.11. In the comments in 1907 Mr. B. C. Kennedy, District Judge, Nasik N?“ik· I s pointed out the inequities of the section? · "Tl1ere 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- , sarily fail as against all three. It is frequently 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 “` * differ in their · views as to the present state of the law." Oommmb 21.12. Honourable Mr. Justice Knight of the Bombay High Court, being t ggmtbay High well-versed in Hindu Law as prevailing in the Bombay Presidency, desired that _ _ the suits brought by a manager of a Hindu joint family should be exempted from the 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 ;N0m·unji v_ Mori Govanji 9 Bom. L.R_ 1126. QS. 16 dt. 4th December, 1907, National Archieves {ile. . ~ A11. XIV, 524. 'Calcutta XXVII, 540. ’·I.L.R, 12 Cal. 642, 24 Cal. 640 and 27 Cal. 540. n 89TH REPORT OF LAW CUMMN. or INDIA ON THE LlM1`l`A'l`lUN Act`, 1963 67 l (Chapter 21-Section 21--Addition 0r Substitution of Parties.) . ' our courts, a Hindu manager is competent to institute suits on behalf of I the family; and there does not seem to be-any good or equitable reason for allowing a defendant to escape from the payment of a just debt by a techni- A cal plea ot non-joinder. The Hindu sentiment the exemption suggested ’ will assuredly commend itself`; and it is not easy to see why others should object‘." 21.13. Though these comments were tabulated and duly placed before the ?;*c¥l£•;3<£;d¤°* Select Committee, for some obscure reasons thesuggestions were not incorpora-,,, ]g08_ 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.“€;;‘°ll 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 ~ "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 A interests of the family as a whole, the managing members may properly be ( 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·afhrmed by the Privy Council in 19143 and the lead Description thus given has been followed‘, by the High Courts. But the Patna High Court of the insistedl that the plaint must show that the suit was by the present managing ggxfglgs member as managing member., This view was not followed by the Bombay m¢mb¤f- 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. S 21.16. In the Privy Council decision’ relating to the position of _suits filed Gm of conceming the affairs of a joint Hindu family and the addition of parties in gggcu such suits,_two propositions seem to have been laid down with reference to sec- mjgng tion 21 of the Limitation Act of 1908, corresponding to section 2l(l) 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 affairs 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, S the other members will be bound by the result of the litigation, and the addition llmdad Ahmed v. Pabiira Partap Nrzrain (1910) I.L.R. 32 All. 241 (_P.C,). · 2KLs*han Pershad v, Har Naruin Singh, (1911) I.L,R_ 33 All. 272 (P.C.)_ 3She0 Shankar Ram v. Jaddo Kunwar, (1914) I.L,R_ 36 All. 383 (P_C.). ` All glgtgnwari v. Sekhrai, A.I.R. 1931, All 585; Chetan Singh v. .Sattal Singh A.I.R. 1924 I Soziwr v. Makbulunncssa A.I.R. 1916 Patna 310. _ - “Medgouda v. Halappa, A.I.R. 1934 Bom. 178. ‘ "Kishan Prasad, supra. · , — 68 89rH kiarom or LAW CoMMN. OF INDIA ON rms LIMITATION Acr, 1963 (Chapter 2l—Secti0n 2l—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. ` _ I The situation of dcfendanfs objection in regard to av joint Hindu family is illustrated in another Privy Council easel also. Subsequent rulings are con- veniently collected in a Madras case?. The Supreme Court has ruled° that failure I 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:- ` "ln a suit by thc 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 pany; and failure I 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." 4 :g;‘dd‘{‘;°*’ 21.17. In the above position we recommend that suitable words may be suits " added in section 21 (2) on the above point. The amendment that is being re— gggwg commended‘ is merely intended to codify the well understood position as to a Hindu suitseconcerning the affairs of the Hindu Undivided Family to which the managing f“m'ly· \ member of the family is a party. ‘ P°‘l*-l‘Z“ 21.18. It may be incidentally mentioned that under Order 30, Rule 10, as rczardmz . . . .... Order 30 amended 1n 1976, a Hindu undivided Family carrying on business has been equa- A g}9’*é_R“l° lo ted with a firm for the purposes of the rules contained in that order. But even before that amendment. thc Bombay High_Court5 had allowed the substitution of the names* of 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, . - I and riot an addition of a party‘. j - V lll. Effective Date _` ilxxcging 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 4 instituted when he was so made a party. The expression "when he was_so if made a party" has given rise to three different interpretations. gggfmt 21.20. The first view is to the effect that a person becomes a party only interpreta· when he is actually brought on the record as party. The Madras judgmenf on °°“S‘ 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.). 2Venkatanarayana v. Somragu, A.I.R. 1937 Mad. 610. 3Devidas v. Shrishailappa, A.I.R. 1961 S.C. 1937. *See para 21.34 irifra. · °Ram Prasad v. Shrinavas, A.1.R. 1925, Bombay 525, 527. _ Cha°S:le 3%1rther Law Comniission of India, 54th Report, (Code of Civil Procedure 1908] L BAmmayya v. Narayana, A.I.R. 1925 Mad. ` . I . · 891*11 nnvoicr or LAW commu. or INDIA ON 11-112 LIMITATION ACT, 1963 69 — . - (Chapter 2l——Secti0n 2l—Addition 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. 1 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 Ordcr 1, Rule l0(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 alsocontains 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 Need for / controversy on this point, it is desirable that a suitable explanation" should be ¤m°¤dm°¤'$· · 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 . i ~ effective. . IV. Misdescription . 21.24. We now turn to cases of misdescription of parties. The Railway Rarilways and Administration being .the largest net·work of public utility, a number of cases are ih? 155*-*9 OF ` V tiled against the Railways for tort or breach of contract, arising out of their mlsdcsmpuom 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 at 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 j 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 plaintiif therein had made sufficient averments to make it known to the defendant that he was seeking reliefagainst the Railway administration, and not against the Agent. ` *Trustees of Port of Madras v. Good Year India A.I.R. 1973 Madras 316. . Blndu Bhushan v. Hare Ram. A.l.R. l972 Patna 229. ` 3For a draft see para 21.34 infra. I ‘Agent B. N. Rly, v. Behuri Lal Dult. A.l.R. 1925 Cal. 716. _ 5Saraspur Mfg. C0. v. B. B. & CI.Rly., A.I.R. 1923 Bom 452. · ' 70 P 89TH REPORT or LAW coMti1N. or 1ND1A ori run timirmiom Aer, 1963 (Chapter 21-Section 2l—Additi0n or Substitution of Parties.) P t 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. "Procedurc is the machinery of the law after all——»the channel and means 8 whereby law is administered and justice reached. lt strangely departs from · the proper oflice 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." _ t Deity 21.27. Apart from cases- involving Railways, a mis—description can also take ` place while filing a suit against a deity. In a Calcutta case,) where a suit for possession was tiled against the shebait and there was nothing in the plaint to indicate that the plaintiff 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. p 71 Summary of 21.28. A review of the above case law shows that the courts, in their anxiety 2:* §l°£;g”' to see that a plaintiff does not get non-suited merely because of bad drafting of the . recomended plaint, have been scanning the entire plaint to see whether the averments therein sgsgipfggg ` manifest, at some place or the other, the person who has been really the plaintiff. _ ` 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 A 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). However, it would be an arduous task to re·draft the proviso to section 20(1) so as to include cases discussed above. Ultimaely, 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 V. Appeals and applications. 1 Appcalsand 4 · 21.29. Under 0.41, r. 20 C.P.C. an appellant must implead all the parties the addition ·within limitation. However O. 41, r. 20(2), C.P.C. gives power to the court to Pt p°‘m°s` allow the impleading of a party after the expiry of limitation. The case is, V of course, outside section 21, Limitation Act. r The position may be considered in some detail. A suit is instituted (in an ordinary case) when the plaint is presented to the proper officer 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 2l(l) 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 2l(l) 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 A section 22 of the Act of 1908 (corresponding to present section 21): ` _- lEast India Rly C0 v. Ram Lakhan, A,I.R, 1925 Pat 37_ _ `”_"—-R-—+_ ‘G.C.-in-Council v. Sunkuruppu, A.I.R. 1953 Mad. 838. \· _ “Pravakar Roy v. Bibuti Bhushan, A.I.R. 1957 Gal. -177. . 891*1-1 Rizrokr or LAW comm. or INDIA ON rmx L1MrrAr1oN ACT, 1963 71 s (Chapter 2l——Secti0n 21- -Adr/ition nr Substitution 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 concrctcly to the position relating to appeals, Order 41, rule _ 20 of the Code of Civil Procedure, 1908 (as amended in 1976) reads as under:——’ i "20. Power to adjourn hearing and direct persons appearing interested to be ge made respondents. 3. A (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. ’ (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 1it." . _ 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 i 21. 21.33. As regards applications, would seem that although section 3 of the A1>¤li¢¤fi<>¤¤ · 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 oflicer 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. l 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 ol`2-“ Patna. _ 21.35. In a Kerala case‘, present section 21 has been held to be inapplicable ` to a petition for revision. j 21.36- We think that section 21(1) should be amended so as to bring appli- APPli¢¤1i0¤S ` cations Within its scope by an express provision. This will settle the position. §j’,,,'ff,, brought ___ ___, section 21. ’Chandrika Roy v. Ram Kuer, A.I.R. 1923 Pat. 88. Zlndu Bhushan v.` Hari Charan, A.I.R. 1931 Cal. 385, 387. 3Am0lakra0 v. Gavindrao, A.I.R. 1919 Nag. 150. . · ‘Gulab Kuer v. Syed Mohammed Zafar, A.I.R. 1921 Pat. 180. 5Chandrika Roy v. Ra mKuer, A.l.R. 1923 Pat. 88. °Sce a·lso Zahurul Hussain v. Badi Narain, A.I.R. 1930 All. 597. ‘ 7Rugmani v. Challappa Rawther, (1969) Ked. -L.T. 789. 72 89rH maronr or raw coMMN.o1= INDIA ON rms LIMITATION Acr, 1963 (Chapter 2l—»Secti0n 2l-~ Addition or Substitution of Parties) , (Chapter 22-~—·Secti0n 22—Continuing Wrongs) — 4 VI. Rcconmtendaiion i _ l}¢¤<>mm¢¤d¤ti°¤· . 21.37. In the light of the above discussion, we recommend that section 21 ` should be revised as under: A 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 V 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 I may be, was due to a mistake made in good faith, it may direct that the . l 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. "Explanation.—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 anylinterest 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 (c) where a defendant is made a plaintiff or a respondent is made , an applicant, or ‘> " (d) to a suit or application by or against the members of a joint l e Hindu family to enforce a right or liability relating to the _ anairs of the joint Hindu family, where one or more of the i \ 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 l SECTION 22: CONTINUING WRONGS ,_ Sectton_22- · 22.1. Section 22 provides that in thecase of a continuing breach of contract °°“"·‘““‘“$ or in the case of a continuing tort‘, a fresh eriod of limitation be ins to run at breaches and _ _ _ P g mm. every moment of the time during which the breach or the tort, as the case may be, 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 A bring innumerableseparate suits, one aftei the other? y History. 22.2. Section 23 of the Act of 1877, which dealt with the subject, ran as ‘ under:- i ( *C0mpare section 2(m)—:definition of tort. n ’Secy. of State v, Venkayya, (1977) I.L.R. 40 Mad. 910, 920, 921. i . 89rH REPORT or LAW comm:. os Imam ON rms LIMITATION Aer, 1963 _ 73 * (Chapter 22-»-Section 22—~C0ntinuing Wmngs.) 7 ‘ t V ' r e ‘ "‘23. In the case of a continuing breach or contract and in the ease of a V *4 continuing independent of contract, a fresh period of limitation begins to A at every moment of the time during which the breach or the wrong, as the ` case may be, continues." J _ _ 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 B section came to be noticed in a .rather oblique way._ Article as of the Limitation Act of 1877 provided for a period of limitation of two years for a suit for restitu- ,` 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 wifi? being of full age and sound mind. '. . ‘ \ · l - 22.4. Dealing with this article, the Statement of Objects and Reasons anne- xed to the Bill of 1907 stated as under:-- H ` "Article 35. of the Act is also proposed to be omitted. H "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 as _ it does not apply to Hindus or Muhammadans, as "their personal law doesinot 7 - 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 lhave 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 suitspreceded by demand and' refu- , sal as mentioned in the third column; Thunijibhoy v. Hirabai, I.L.R. 25 Bom. A 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.' T34 Cal. 79; Saravanal v. Pcovavii party if he simply refrains from making a demand which, it may be noted, 7 is not, under the Hindu or Mohammadan Law, necessary to give rise to 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 brothers andthe elfecte 7 _ · of this article is that if owing "to any domestic quarrel the wife should in · ajit of temper refuse to return, the husband would be compelled to take the . · matter into court within two years." ' ` _ Q _ - ] 22.5. The Government Pleader‘, Assam Valley Districts, and the Judge“ of the Assam Valley Districts, while commenting on thef Statement of Objects and Reasons quoted above, .noted as underi :— - · ’ I — ., j‘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 V withholding of restitution of conjugal rights isa continuing wrong. In a _ I · recentlCalcutta case (11 C.W.N. 437) it has Men- held that section 23 (now ~ a section 25) does not apply to such ·a case. In view of this decision of the \_ , Calcutta High Court, the intention of the legislature should be made clear ‘ ‘ by an illustration? g F o e lBabu Kali Charan Son. ‘ V ‘ “Mr. W. B. Brown. t / °On 3rd September, 1907——National Archives File. - 4`11§-14M'ofI.J & CA{ND/83 if e ` 1 74 . 89ru kumar or Law coMMN._o1= Iuorkou mu L1M1rAr1oN Acr, 1963 (Chapter 22»~ Section 22e—Corttinuing Wrongs.) J , . ‘ ` 22.6."This omisisoni of article 35 of me Act of 1877 from the Act of 1908 was noticed by Wazir Hasan A.J.C. in an Oudh case‘, in which a comparison t was drawn between the cause of action for ia suit for restitution of cdiijugal yrights 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; l — Law, Commission 22.T Section 23 was not disturbed in 1908. The Law Commission in its — itigw Report” on the Act of 1908 recommended expansion of the concept of "tort", , - and had suggested a draft clause which ran as'under:— ' , A `T ' - "21. Continuing breaches and wr0ngs.~In the case of a continuing r breach of contract and in the case of ai continuing wrong independent of A contract, a fresh period of limitation begins to run at every Vmoment of the — 8 time during which the breach or the wrong, as the case may be, continuefs." _ °The Law Commission had also recommended that the expression "tdrt" should be defined to include "all civil wrongs independent of contract." 8 . -\ Actor 1963. , . 22.8. However, in section 22 as it emerged in its final form in the Act of » l P 1963, the words "continuing wrong independent of contract" have been substi- I A ` tuted by the words "c0ntinuing tort". The definition of "t0rt" in section 2(m) " _ p defines it as a civil wrong which is not exclusively the breach of a contract or 8 breach of trust. This is not the definition that was recommended by the Law ‘ Commissioni. ` · , I ` — " J 22.9. The language used has introduced a deficiency in the section. The _ " » lmgggg. ‘ Law Commission had recommended inclusion of all continuing wrongs in the . _ p . 8 . section, but, in the present language (read the definition of "to1t") section 22 I A A ` does not cover breach of trust or violation of statute. . ‘ Q i ` · 4 . _ ’ . g" I Violations 22.10.-We have considered the matter carefully. It appears that there is no °f s°‘“Y°?· reason for excluding from section 22 continuing breaches of trusts or continuous /.¤ ° , violationsof statute; No doubt, section 10 does take care of certain breaches of ` K V i trusts; but the topic under discussion isof continuing wrongs. It is proper that “ “ A A ° _ section /22 should cover all continuing virongscoritractual and non-contractual. ’ . V The word "wrong" can be given the widest possible connotation, and would . include infringement of trade marks or other forms of intellectual property, viola- ’ tion of easements (and breach of statutéryduty., In a Punjab case‘, the Exing _ of a Persian wheel over a well which ;‘was;i1 the enjoyment of the other co- , i ` ._ owner was held to amount to a continuing Similarly, in a Lahore case‘, . it was held (disregarding the technical under Muslim Law, marriage, _ being a civil contract, the husband’s impotency was a continuing breach of · `. contract of _ marriage. As section 22 Qembodies a `general enunciation of the t principal of continuing wrongs, we are of the view that it would be desirable to . put the matter beyond any doubt. A . C ‘ · ` *Mad. Humidullah Khan v. Mt. Bakhurljaharr Begum A.I.R. 1922 Oudh 109. V _ ‘ ”Law Commission of India, 3rd Repdrt (Limitatiom Act_ 1908) page 12, paragraph 20, page 5, paragraphs 10 and' 11, page 10. paragraph 14 and Bill at page 72, Clause 2(3); ~ page 73, clause 2(11) and page 82 clause (21)_ · iparagraph 22.7 supra. ` V _ . *Th0h§m Singhv. Sohanu, A.I.R. 1950 East Punjab 21. _ c ‘ . 'Suhibvlaiua v. Abdul Ghafoor, At,I_R. 1959 Lahzgre *454. _ . A 89'[H REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 A I 75 . - I ·~ (Chapter 22——·Secli0n 22-- C0ntirmir1g.·Wr0ngs.) U ` r _ ` 3 (Chapter 23——Seeti0n 23——Acts not Actionabde without Special Damage.) V 4 · 22.11. Accordingly, section 22 should be revised, so as to make it clear Nggdktq that the section is not limited only to breaches of contract or torts (as defined 3;*36%: . ,in the Act), but covers all continuing wrongs. ‘ cover all _ _ _ wrongs I 22.12. It is also necessary to refer to anotherpaspect of section 22, whichgflitgf gains- _ figures in a recent Madhya Pradesh ruling‘. That ruling seems to assume that·;mmamm_ ‘ _ ( section 22 (continuing wrongs) is coniined to suits for 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 1 i i restraining the defandants from (illegally) recovering a sum of money from the A . plaintiff arises every time a threat of suchrecoverzy is made. However, to avoid · J . recurrence of_such 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 . sclaimed for the continuing wrong. . - — » » » 22.13. In the light of the above discussion,iwe recommended that section 22 Recommendation shouldpbe revised as under:- ,: ' [_ Revbed aectilln 22 ~ _ I ·» · l · A 3 ` I "22—C0ntinuing Wrongs.-In the case-of a continuing breach of con- U tract and in the case of a continuing vntrog independent of contract, a fresh . V period of limitation begins to runat evjery moment of the time during which ` thebreach or the wrong, as the" casenray continues. A il `»Explanati0n.—This section applies whatever be the relief claimed? _ ip _A ` , lr CHAPTERZSL A ` · ·. SECTION 23: NOT AIIHUSABLE WITHOUT ` 4, l SPECIAL DAMXQE _ ° 23.1. Section 23 provides that in the of a suit for compensation for an section 23,. I _ ~ act which does not give rise to a cause of action unless some "speciiic injury" ¤¤¢ r actually results therefrom, the period of limitation shall be computed from the $,§g,°:,:gb¥:;,,c;,] , ‘\` time when the injury results. In a sense, lit modifies thegeneral rule. d¤m¤8¢· . The general rule is that “Limitation runs from the earliest time at which an ‘ I h I I action could be brought". Accordingly, time would, in general, run from the " » e occurrence of the act of omission complained ·of,.and not from the time when the ` I consequential damage causes. However, véherea specific damage is itself the gist · — of the cause of actiong, this general rule requires qualification. Time should commence to run only when the damage actually results, because the right to sue a . arises only then} * ‘ I I . i 23.2. me history of the section is of some relevance and may be briefly dealt The of . with. Section 24 in the Limitation Act QI5 or 1877) ran as under:- ?877`·‘*¤F j` _ , , illustrations · ,’ ‘ ‘ .. . . . to ww 2+ i ‘ 24. In the case of a suit for compensation for an act which does not of that Acc ' ` give rise to a cause of action unless ,some specilic`* injury actually results ‘ , · __ - - therefrom, the period of limitation shall be computed from the time when ‘ _ the injury results. , » ` p · _ 1 *Mohanla[v. State of M.P., A.I.R. 1980 M.P.;P(F.H;)' - ‘ _ ( i 2Reeva.gLv. Buldier, (1891) 2 Q.B. 509, SI1. g . ‘ a ig *of; art.: IEQZG (compensation for slander). ,;.;*3 i g · ‘ . A . •see pw bmah v.»C’0rp0rati0n or caterer;. lf..R. is Cal. 91, 99; 76 - 89111 xeroar or LAW comin. or Iunni on rm; LIMITATION Act, 1963 , · _ , i ` ` (Chapter 23—— Section 23-- Acts not Actiouable ‘wit/wut Special Damage.) l / . A Illustrations 1 ‘ (a) A owns the surface\of a Held. B owns the subsoil. B digs. coal thereout without causing any immediate apparent injury' to the *2, surface, but at least the surfacesubsides. The period of· limitation ; ( in the case of a suit by. A against. B runs from the time of the l subsidence. 1 — · (b) A speaks and publishes of (B slanderous words not actionable in. _ l 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- ‘ · j ‘ er does not commence till the refusal." 5 _ · lr kw - V 23.3. Illustration (a) of the above section 24 (Act of 1877) was probably dic- ?mE,¤—_‘ ‘tated by the facts of a House of Lords Judgmentl, in which A was the owner (H} 0f •¤¤¥i¤¤ _ of certain houses sta ding on land which was surrounded by the lands of B, C _ 24 of the Act Ii . · . - V - . of jc-,) & D. E was the owner Vof mines running underneath the lands of all these per- · · j sons. E workedthe mines in such a manner (without actual negligence) that the Q? _ ’ ' lands of B, C and D sank in; and, after more than six years’ interval, their sink. - Y ‘_ lng occasioned an injury to the houses of A. It was held that a rightjury" to a right, but of consequential dainageabeing that cause. It is clear, however, that this language is incorrect; andthe only meaninggin cases · inwhich the cause of action is said to arise fromconsequential damages, is that until that damage, there was no injury atiall. In that same case, Cole- ridge, J. says--~"The right ofaction vests in a party whose rights are injuri- ` _ ously affected by the act of another person at the timewhen the right is so ‘ afected. Erle, J.—"A cause of action arises wheh. this right is violated," _ and again, "as a general principle, it is diihcult to @nceive a cause of action from damage when no right has been violated, and no right has been violated, ‘ ` ~ \ lGavind v. Rangnath, A.I.R. 1930 Bombay 585. I _ ` ' —’Iagat Kishore Prasad v. Parmashwar Singh, A.I.R. 1951 Pa!. 348 ILR 28 Pat 974. ?Rdjag0pala Naidu v. Aiyyaswamy Chattier, A.I.R. 1965 Madras: 532. ~ ‘ - Vagannath Marwari v. Kalidas Raha, A.I.R. 1929 Pat11a;245,." F - · _ ` ‘ 5Eqs-tern Traders (I) Ltd. New Delhi v. Punjab National fault, A.I.R. 1966 Punjab ii .§‘;;é@¢.2r2a_ 4* me ·°·· it I 78 p I 89TH REPt)RT OF LAW commu. or Iunm ON ms LIMITATION ACT, 1963 · ‘ A I (Chapter 23-—-Secti0r1—23—·Acts not Actionable without Special I Damage-*C}¢0IZf€T y 24—§ection 24 Computation of lime) _ I and no wrong has been done," rind in the Exchequer Chamber, “Willes, I Y ].—"the question in this case depends upon what is the character of thepe right". The infiury innhis case was to a right in rem". was not 5 * to prevent the defemliist from excavating. but to have his land m its natural _ . state. There was no ‘juris at all until that state was disturbed; I _ * ` there was no disturbance until the damage accrued, and at the accruing of E _ I the disturbance arose the injury, thecause of action." _ I NW1 bmuon F 23.11. From the above discussion it. transpires that the doubts expressed · - fg action about the applicability of the section to suits based on contracts have beenjre- · ‘ °¤ °°P*'°°*$- K solved by the courts mostly in favour of its applicability. However, in order to A ` obviate, further controversy, on the point, it is desirable to extend the section . · expressly to suits on contracts, p . I _, _ I ° I bs:°£’£¤§;a 23.12. In fact, while making it olear that section 23 is comprehensively and · y to all wrongs. is not confirmed to tort, etc. can also be takenof clarifying that the · " · · g section applies to all wrongs (for example breach of statute or breach of trust)? I 23.13. Another on which the section seems to require verbal I g pimlqpmdon ment relates to the érds "specifk inj1¤y" occurring in the section. The Word t * , ¢¤ b¤ finjury’ is now-a-days Iused in theécontext of civil liability for the wrong itself ‘ , mm I ' ` (which is a legal concept), while, the word "damage" is used to indicatethe — * _ · harmful physical consequence of me The section has obviously in mind » ` the consequence and from this angle *‘speci§c damage"V is better than the present · Wording "speciiic injury”. Ingfact, the Limitation Act itself (in the articles relat- _‘ . · ing to libel and slander); uses the expression "speciiic damage". These iwords _ 1 were also used in illustration (b) to section·24 of the Limitation Act of 187'F, The ’ I — , Words "speciHc injury", therefore, should be replaced by Y‘speciiic damage". A i ‘ e V RF°°¤’m°'d°*i°°· 23.14. In the light of the above discussion, we recommend that section 23 Ii r · A should be revised as under: ` . ‘ · r V za V "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 shdllbe computed from the.time when I the damage results. I y I Explanation.-—The {U this section apply to a wrong wlich _ constitutes a breach of contract, arnlsa to an act which corutitutesu wrong independent of contract." ~ ’ p , ~ 2 I 24 · _ V t I SECTION 24: 0F TIME p g I_ g4- - 24.1. Dates or periods of timeIfor the performance of contractual obliga- = - ‘ *h° tions are often mentioned in instruments with reference to an Indian calendaror » ~ mn oned . . A . » . , ;,,_;m¤·um,,,ts_ some calendar other than the Gregorum. In regard to such 1nstruments,·a gene- ‘ _ A ralrule is enacted in section 24 ol the Limitation Act——expressed in the form of . · a legal fiction. The section provides instruments shall, for the » · · of the Act, be deemed to be made r#rence to the Gregorian .. I . - l ,,IIIZI ` . ‘I.· A ‘ paragraph 23.14, intra for a dmft. § · - agraph 23.2, supra; . . i ée · 89m nnvonr or LAW commu. ·or` INDIA 6N mtr LIHITATION Act, 1963 79 _ gi (Ohdpter 24——Secti0n 24—Compumtion of time-e-Chqpter 25——Secti0n 25- 3 _ · l _ Acquisition of Easements by Prescription) 1 effect, by yirtue ofthe 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- j ` tation Act would be computed on that basis. r — p Thus, for the purposes of the Act, the parties to every instrument are dee— med to have used the terms "year" and "month’§ in sense which they bear _in_ the Gregorian calendar‘. The section is not subject a different intention?-‘ 243. The law on this topic is now fairly wetksettled and the section No change ' appears toneed no] change. ' , ( "°°d°d‘ , ` . ‘ i` r CHAPTER as V ‘ / Y t SECTION 25: ACQUISITION 0F EASEl\/HYNTS BY—;P ION · . .25.1. It is well-known that the running of time has two important facets in A;=q¤iS;¢i<>¤:m _ law—-the barring of a remedy and the creation or extinction of rights. The latter_j,,y _ has come to be known as "prescription", while the former is known as limita- in . i 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- ` Q ments. ‘ ° A - These two sections apply only to those areas whore the Indian Easements I Act, .1882 (5 of 1882) does not extend? The reason why; the Indian Statute Q Book, in two enactments extending to two different JITQRS, deals with the subject of easements is historical. Provisions for themcquisition easements by pres— _ cription on the analogy of the English Act° were introdiréed 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 for a civil code, the , Easements Act. 1882, was passed, b_ut it wasnot appliedthroughout India in _ ` ofjthe reservations expressed by some of the local Governments. Hence, we the provisions in theLimitation Act relating to easements continued to apply . 'to areas,where the Easements Act had not been appfied, either initially or by ‘ subsequent extension. This position continues today. Altlbugh the Law Com- mission, in its Report on the earlier Limitation Act, reoommended’ the extension of the Easements Act, 1882 to the whole—·of India (and repeal of sections 26-27, i Limitation Act, 1908) that could not be done, owing§ to certain constitutional difficulties felt by the Ministry of Law". Sections 26 and 27. of the Act of 1908 ` have been re—enacted in sections 25 and 26 of the presentlimitation Act. For _ the purposes . of the present Report, it is unnedessaryi to make any detailed I I comments as to the constitutional aspect. Accomingly, we proceed to a con- ‘ ~ ) `siieration of the provisions contained in the rele·vant{sectoiis.- · ‘ , 25.2; Section 25 deals with the acquisition of by prescription.S°°*i°¤ 2$· Sub-section (1) makes a two-fold provision. deals·~ with access The them A and use of slight or air to and for anyjbuilding, ivhiehrgliai been peaceablren- _ ‘ _ joyed-with the building as an easement and asofgrighitxwithoutéinterruptiora for J ’Nilkanrh v. Darturraya, (1879) I.L.R. 4 Bom. 103. * .V 7 ·;5cnkqta_Subramniya Savszri v. Bhairavasami, (192‘H? 53~M£L.IQ$ 447.- x ’ _ uhm; Bhatta v. Domakka. A.I.R. 1958 Ker. 326. · · » ‘Rungv v. Bdbaj, (1880) I.L.R. 6 Bom. 83. " · . ‘Section 29(4), Limitation Act, 1963. · A V girgéqgimtmigsibnlgdg 3rd Re rt (Limitation Apt 1 ) 24 <5 i A _ Estaternent of Objects and Reasons anliiexed to the Ijmitntion9$ll, , pam U ' 80 89I;I·i savour or LAW COMMN. si Irion ON THVE LIMITATION ACT, 1963 l · I _} . I i - (Chapter 25——Secti0n 25-—Acquz'sition of Easemenrs by Prescription- Chapter 26——;S'ecti0n 26-—Reversianera~Qhapt¢r 27— Section 27—E1rtingui.s·hment of · Right to`.Pr0perty) * ` _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 hal? ct Q the section provides that where any way or watercourse or ihe use of any water ( or any other easement (whether amrmative or negative) has been peaceably and already enjoyed by any person claiming thereto as an easement and as ol right without interruption and for twenty years, the right of such way, water- course, use of water or easement becomes absolute and indefeasable. ( ‘ ‘ Sub-section (2) of section 25, in substance, requires that the period of ` twenty years should be a period aiding within two years next before the . tution of the suit wherein the claim to suchxperiod relates is contested. By»sub» section (3), where the property over which a right is .cIaimed under subsection ‘ ` (I) belongs to Government, the period must be thirty years. The meaning of ‘ "interruption" for the purposes of the section is explained by the Explanation _ to the section. r ` . . r ~ N-, chai, 25.3. No change is needed in section 25. Section 26 is dealt with in st Y ¤¤•9¤¢\ iu next Chapter. — . ' section 25. . ’ j" .cr-mivrnn. 26 » · g I · I ( I SECTION 26 :. REVERSIONER g ‘ ' A Seetion`26-. 26.*1. Continuing the subject of easements in section 25 dealt with section ` ‘ ds; 26 provides that in computing the; period of _twenty years mentioned in section I 25, if the-servant tenant has been lield bypvirtue of any life interest or any other _ ' - “ interest for a term exceedhrg three years, the time of enjoyment of _, easement during the continuance of suchtlifer interest or limitedfinterest shall be exgluded in computing the period of twenty in case the claim to the else- I " ment is, within three years next after the determination of such interest or resisted by the person entitled, on such determination, to the dominant fBB¤Iil’G1it.—.` ` r The; object of this section is to preclude any easement from arising-where; _ " the servient tenement is enjoyed or heldfor a limited periodjjobyiously " a person having a limitedinterest may not have any enthusiasm in opposing or ` · » . ‘ . resisting any enjoyment that might ultimately ripen into an easement. 4 j I Ng chang; 26.2. No change is needed in Section. V ”j ‘ ·cHQA1»1h— R27. Q i \ . $ECl‘ION 21 : EXTINGULQMTNT OF RIGHT T0 RROPERTY · W pmugpqon V ‘ 27.1. In the conext. of prescription, jtheimore important provision is to be I *1: °*F*::¤i¤h· found in section 27, which may be as_the shortest but the mostjm- ‘ _ _ Un ' ’ . portant section of the Act. In ternis, it with the extinctiomof ` » ’ . tinctive prescription—but, in eifect, Eit amuntsto the creation of a correspond- Q ‘ 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 Totthe period hereby limited to any person " for instituting a suit for possession of any property, his right to such pro-, » _ perty shall be extinguished? e _p _ " ` 89rn nsrotvr or LAV\·' column. or mom on THE LIMITATION scr, 1963 81 ‘ (Chapter 27$Sec:ion 27- Extirzguishment of`Rigot to Property. l Chapter 28——Section 28V—»Amendment of Certain Acts V Chapter 29- Sections 29 to 32—.S'ai=ings, Transitional Provi.~·1'mzs· and Repeal.) ‘ 27.2. The theoretical as well as practical importance of the extinction and 0*1*9* P°i¤” s e acquisition of title to property by prescription is, by now, well understood andggcriiggngif 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 kinds——movab1e and immovable, in- cluding a hereditary oiiice. 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 U adverse possession of the property for the period speciiied 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.law in question; no change appears to No change be needed in section 27. 1 “°°d°d-A _ .» _ l CHAPTER 28 ‘ I U SECTION 28 : AMENDMENT OF CERTAIN ACTS 28.1. Section 28 malces two amendments in other laws by directing that——§°:1;{g3;;;0f * ` (i) in section 15 of the Indian Easements Act, 1882, for the words "sixtygQ;"1i;a‘:.fi°T{'h$;"“ ‘ years”, the words "thi1·ty years" shall be substituted; and gist Procedure ` C. (ii) in the Code of Civil Procedure, 1908, section 48 shall be omitted. Q _ I The iirst 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 cimsequential on the decision to simplify and reform the law relating to timeflirnits for the execution of decrees. V 28.2. As the section has created no serious problem, no change is needed. Nodeléauce , . HB3 C . ` 5 . CHAPTER 29 5 _ SECTIONS 29 to 32: SAVINGS, TRANSITIONAL PROVISIONS AND A 5 t i REPEAL ` ` _ . I. Introductory _ . 29.1. It remains now to consider (so far as. the body the Act is con- Section 29__ cerned), the provisions of the Act in the nature of g savings, transitional provisions gineral and repeal. Of these, the most important is section 29, consisting of four sub- ° °m°‘ sectiops. Sub-section (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 I 2$[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 e `Contract Act. Thus, a right- to property or to a legacy or to damages does not V g fal1·W1`¥hi11 it. A _ ‘ io..a ‘ Moo. l.A. 345. 360; _ . . Amirurmisa Begum v, Umar Khan, (1872) 8 Bong. LR, 540;/ _ 5 Garmin Doss Chunder v. Issur Clmnder Nath, (1878) .I,L.R. 8 Cal. 224. ` V . Radhabai v. Annntrao, (1885) I.L.R., 9 Hom. 1_98, 228. .. ' 12¢——t41»tbi_1.}QCAt1slD}83 c ‘ »’ ` · ` A 82 89rn msronr or Luvrommu. or mma on me Lmirnron Aer. 1963 (Chapter 29—·Secrions 29 to 32—Savings, Trcmsitional Pro visions and Repeal.) l Section 29(2) of the Limitation Act deals with those special or local laws which prescribe ia 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 different from that prescribed in the Limitation · - Act, then section 3 of the Limitation Act will apply as if that period had been set out iu' 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, whichwill be mentioned in due course. 3- Finally, sub-section (4} of sectiou·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. · · — ‘ Il. Special andlhocal Laws 2*2* 29.2. With reference to the savings elfected as regards special and local A recommendation laws, the Law Commission in its Report on the Act of 1908, while dealing with gggbgx as section 29 of the Limitation Act, 1908 (corresponding to present section 29), ob- to specialand S€rV€d2 as uI'ldcr:—— · Q · local laws. . , _ . "The combined operation of sub-clauses (a) and (b) of sub-section (2) ‘ is that so far as special and local laws are concerned, only sections 4, 9 to . , A . 18 and ,22 of the Act apply, and thattoo subject to such modifications as ` ' · may be prescribed, We consider that there is no need for this restriction /2-ind 4 that the principles contained in sections 4 to 25 should be made applicable _ A 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- J - “ sent Act. reads as under :—— _ ` A "(2) Where an special or local law prescribed for any suit, appeal or i n application a period of limitation different from thc period prescribed by the . Schedule, the provisions of section 3 shall apply as if such period were the A _ , 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 1 ‘ apply only in so far as, and to the extent to which, they are not expressly' . l excluded by such special or local law." · "Para 29.2, et seq, in_fi·a. · n e _ t 'Law Commission of lndia. 3rd Repo15t(Li1jnitation Act 1908), page 24, para 59 and P - ·; , pages 82-83. section 25(2). _ V V! . A _ V. 891`H`REPORT or Luv coMMN. or INDIA ON rma LIMITATION Aer. 1963 83 I _ (Chapter 29~—Sec·tions 29 to 32——Savings, Transitional Provisions and Repeal.) A , 29.3. Several decisions of the Supreme Court *-2-* have made it clear that "Sp¤¢i¤l" and i a "special law" is a law relating to a particular area or territory. “lq°?El°Yi.- 1 29.4. The Supreme Court has also noticed‘ theimportant departure made l , by Limitation Act, 1963 (from thc Act of 1908) in so far as the provisions con- - tained in section 29, sub-section (2) are concerned. The Court concluded that ’ A _ 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 ei V limitation prescribed by a special or local law, if the applicant can show that he had sutiicient 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 4l7(4) of the Code of Criminal Procedure 1898, which‘was a - "specia1" 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 4l7(4) was held as not a sufficient ground to displace the applicability of section 5. ». 29.5. ln view of the above authoritative pronouncement, there appears to Definition of `. be ig need to define the expression ‘l‘spccial law" and ‘local law’ as occurring in T§c°;{a}J,L_ A , the imitation Act. · not needed. A i 29.6. The expression "express1y cx·eluded" by such special or local law, as "E¤P¤'¤S5}y 9 _ · occurring in section 29(2) also, came up for consideration before the Supreme °x°lud°d ' A Court‘ in a case dealing with section 81 of the Representation of.the 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—— 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 V 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 clearthat the pro- A visions of the Limitation Act are necessarily excluded, then the benefits conferred A therein cannot be called in» aid to supplempt the provisions of the Act." The 4 V Supreme Court further held that even in a cpse where the special law does not _ exclude the provisions of sections 4 to 24 of sihe Limitation Act by an express __ ` reference, "it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the tnatnre of the subject-matter and A A the scheme of the special law exclude their operation." » 29.7. In view of the pronuneement of the Supreme Court mentioned above, Caseein _ Courts enter upona comparative study of the scheme of the special or local law H'€·h °°“*"& . X 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, 1960, lK¢ti1shalva Rani v. Gopal Singh, A_l.R. 1964 S.C. 480_ I °Mangu 'Ram v. Municipal Corporation of Delhi, A.I.R. 1976 S.C. 105. ‘ 3]. A. Dt··Piedode V. A. V. De Fonseca. A.I.R. 1979 S.C. 984 ‘.Man_izu Ram v. Delhi Mlllll('l.[){llll>\'. A.I.R. 1976 105. " 5HIlklI'Hdl’V v. Lalit Naruin, A.I.R. 1974 S.C. 480. “Viiay Singh v. Competent Authority, A.I.R. 1978 M.P. 72 _ 84 8911-1 nnronr or L/\\V comin. or INDIA ON THE LIMITATION ACT, 1963 V — (Chapter 29-Sections 29 to 32-—Savings, T»·rmsitior1alPravisi0n.r and Repeal.) · with a terse observation:- W ` _ "The provisions contained in the Ceiling Act do not specifically ex- 4. . clude the application of section 5 of. the Limitation Act. Consequently, it can- , not be doubted that to an objection applicationias provided for in sub-sec- ‘ tion (3) of section ll of the Ceiling Act, section 5 of the Limitation Act will - ‘ be applicable? Y . ‘ 29.9. The Calcutta High Court has held‘ that the appellate Cooperative r ( ` 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 theappeal, but even then the Court ` came to the conclusion that the provisions of section l2(2) of the Limitation r Act, 1963 [regarding excluding thc period for obtaining copy of the award], would a 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. ( No chang, 29.10. From the above discussion, it appears that the expression "expressly {1:*331 35 exeluded" occurring insub-section (2) of section 29 has been construed liberally expression in determining the question whether sections 4 to 24 are available to proceedings giggsggl I under special or local laws. It may be diiiieult to devise a verbal formula that will cover the variety of situations, and we do not, in the present state of the t g . I case—law, propose to make any verbal change. _ r lll. Local laws———Thc prcbkm of Portuguese and French laws. Section 29(2)- 29.11. As to the savings effected for "loca1 1aws",, two cases decided by the ‘ I-°°*l l°‘“· 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. I I _ Portuguese 29.12. In a Goa casei it was held that articles 529 and 535 of the Porta- » GYN C°d€· guese Civil Code are "special or local law" within the meaning of section 29(2) A ` . of the Limitation Act.*l963, and `_ not. on the coming into force of the Limita- l ,_ ‘ tion Act 1963. in the Union Texmw of Diu, Daman Goa. stand repealed by / v_ the corresponding articles 74, 31 léfnd 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- I ‘ ( 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 wasdismissed. but the ruling accentuates - _ s l 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. - ~ Freticlr 29.13. The Madras High Court (which has jurisdiction over the former CmllC°d°' t 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 Y ( I of "local law" in section 29(2) of the Limitation Act, 1963. The French Civil X 7 ‘ ` Code was a "local" law because it applied, and- was inforce, in the former French I establishments of Pondicherry. It, was not in force anywhere else in India. After I 'Nirmrrl Kumar v. Purrifmii Co-op. Bank, A.I.R. 1977 Calcutta 246. ~ A ` ‘ U. A. Du P. Burrcro v. A. V. De Fonseca, AIR. 1969 Goa 124. r *'Choc7calinga Mudaliar v. Nanivrmm: Pilfcgi, (1970) 2 M.L.J. 544. - _ _ ’€ ( . 89ru ruarokr or LAW coivnvm. or iND1A on THE LIMITATION Aer, 1963 · 85 I (Chapter 29—Secti0ns 29 t0 32—Saving, Transitional Provisions and Repeals.) I l the de jurc merger of Pondicherry in the Indian Union on 16th August, l962,_ all · the laws formerly in force in that territory were continued, by force of section ‘ ` » 4(I) 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 nn,-n,nS· plaintin with the Portuguese Civil Code prescribing a period of 30 years for of Umi*=¤i¤¤- X. allrights of action whether in rem or in PCFSOHCIH. 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- tion Act acquired an added refinement here. The French Civil Code not only · prescribed a 30 years limit for actions in rem or in personain (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 rthe purchasers were - · merchants. In the former case, a very short period of. one year has been pres- cribed} _ _ I · 29.15. The complexity of the problem can be gauged from the tact that Understanding everrthe plaintiff did-not seek to support his case by pleading the continuance 0f ih¢ _· of the French Code as regards limitation when he tiled the suit on 23rd June, r:§nf,$,?,ni$y_ _ -1971 in the Court of the principal District Munsiff Pondicherry. It was for the 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 plaintiff 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 th@ mercantile community is ` assuming that the Limitation Act 1963 is now in ree in Pondicherry. .29.16. 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___ p preserving the special characteristics and attributes of the system of adminis- Recommendation ., tration of justice in these erstwhile foreign enclaves. With that end in view, ;‘;;°P§:t°n°g’csc ` e ‘ a continuity with the past has been maintained in some areas. However, as laws relating regards limitation, the mental orientations of the business community of Pondi-t° hm1m!°°' cherry towards the Indian laws as reflected in the judgment of Chockalinga 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 Pondicherry and Goa respectively, should be expressly repealed,‘aftcr ensuring that no legal hiatus is created by i such a repeal? ‘ ___________ _,_,____._._.i. t ‘Article 2272, French Civil (`odc eonlrastcd with Article 2262-ofthe same Code; _ _ ~ “For implementation in connection with French and Portuguese Laws relating to l1m1- . tation. it V gg 89rn iuaroitr or LAW ooivnvm. or INDIA on me L1M1`1`ATlUN Acr, 1963 . (Chaplcr 29—.Sectiou 29 to 3};-Sa rings, Iiwisitiorzal Provisions and Repeal.) Supreme Court 29.18. lt may be mentioned in this context that the questiom whether , r Cm- the provisions of the Portuguese Civil Procedure Code as to innitauon still ` Y . ` survive tn the Union Territory of Goa, Uaman and Ulu came up betore the . I Supreme 'Court, where the point at issue was whether the appeal in question was governed by the Portuguese Code by article llo of the Limitation Act, 1903. lf it was the former, the appeal was out of time. lt 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 and-hence 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 ot the case, the delay (ii any) should be condoned. lt is suliicient to quote the following passage [{0111 the last para- graph of the judgment of the Supreme, Court: ` ’ · "However, the other preliminary objection upheld by the 'learned `Additional .1 udicial' 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 Din to proceedings launched therein prior to and pending at the date of liberation`? ‘ 3 "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 tiling the said appeal in the Judicial Commissionefs Court at Goa, that has been made by the . appellants before us which we are inclined to grant. lt camzoz be gainsaid that the aforesaid question of limitation is a complex one and not free from`d0ubz,“ and if in such a situation the appellants, bona [ide believ- _ing that the appeal could be tiled within 90 days as provided by article 116 of the Limitation Act 1963, tiled their appeal within that period, it would be a clear case of suflicient cause which could be said to have prevented them from tiling 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 irnpediment’ I 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.” ‘ ` V The abby passage indicates that the position as regards the limitation law # *· A - _ ’ in force in the area in question is still uncertain. e IV. Local Laws — t _ I ’ V The Travancore Liiniiation Act ‘ frgvancom 29.19. Another question of a similar character pertains to the Travancore— Ac:. " Act. The areas at presenrcomprising the Kanyakumari District and Shen- V ~ ‘Maria, Christine v_ Maria Znrrut, A.I_R. 1979 S.C. 1352, 1354, 1355, para 3-5, . ' ` *Emp]iasis added. { 89*m naronr or mw commw. or INDIA ON THE LIMlTATll')N Act. 1963 i 87 (Clmprer'29- Sections 29 to 32-Savi1tgs, Transitional Provisions and Repeal.) ,_ » cottah Taluk of Tirunelveli District of Tamil Nadu altd the southern portion I ‘ of Kerala together formed erstwhile the Travancore State where the Travan- · core Limitation Act (IV of 1100 N.E.) was in force. Section 20(l) of the Act V read: ’ "If before the expiration of the period prescribed for redemption of a - mortgage, the mortgagee accepts from the` mortgagor a puravaippu or V purakkadam deed creating a further charge on the mortgaged property - and duly registered, the prescribed period of limitation shall be comput- ed from the date of such puravaippu or purakkadam 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 lst April, 1951, with the result that the above provisions of the Travancore Limitation Act were repealed. V 29.20. Two judgments of the Madras High Court, however, appear to have Case Law on created certain difficulties in the matter of computation of limitation in sittia-$l*Q°t_Tmv°°°°r? · tions envisaged} by section 20( 1) of the Travancore Act, which relates to pura- _ » 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 acceptsla deed of further charge, then a fresh period starts running. - · I I 29.21. The iirst judgmenti 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 pm-akkndam deed (deed of further charge). ` 29.22. A somewhat contrary viewi was expressed by the same High Court (in a judgment by Varadarajan I.) holding that puravaippu 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- 0 tion cannot be applied at all. The earlier .Madras ruling does not appear to . have been cited before him. I ‘ . ` . I , 29.23. As the period of limitation under the Travancore Act was 50 years, C°¤¢l¤*l<>¤, BS l` suits based on puravaippu or pzrrakkndami can technically continue till Hrst fcgmvancom ` 7 April, 2001 A.D.' 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 A » 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} * . . J 'Section 20, Travancore Limitation Act (IV of 1100 M.E.}. BT/zomas v.' Victor, AIR. 1976 Madras 273: (1976) 2 M.L.J. 5. *Parameswr:ran Thampv v. Kanakama Tlmnkaclv (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.I. 78. _ l . *For¤consideration in connection with the Travancore Limitation Act by State Govern- ments of Tamil Nadu and Kerala: ‘ 2 - _ . . 88 - A 89ru msronr or L/\\V coMMN. or INDIA ON me LiM1rArioN ACT, 1963 . ‘ ' I (Chapter 29- Sccliorzs 29 io 32-—Savings, Transitional Provisions and Repeal.) g l ` V. Section 29(3)—P0siti0n suit for dower = \ l §;"v$;rf°r 29.24. At this stage, it is necessary to refer to the part of section QU? I 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 I 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). I " excluded from the purview of the Limitation Act.` The reasoning underlying ' the judgment, is as under. In the Indian Limitation Act, 1908, the exception I 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 p for dower. In the present Act, there are (the High Court has observed) n0 corresponding articfes 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. _ p ` g§§%cg°:i0n_ 29.25.’This ruling raises an important point that needs clarification. So i far as _we could ascertain, it was not the intention of the Legislature that the ·_ Limitationi Act 1963, should not apply togclaims for dower. The exclusion T clause in section 29(3) is not really intended to exclude such claims from the . 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 Limitation 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 I does not remain totally outside the Act. . £;'m?n°;:‘g;'§g:“ 29.27. Ar few words appear to be needed about the ch_anged wording in p .<1epan-ted from. the present Act (in contrast with the earlier Act); The difficulty seems to have i 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 »‘ 4 under the Indian Divorce Act, 1869. Commenting on this. the Law Commis- sion, in its earlier Report, observed as under“:— · . l "There are other Acts like the Parsi Marriage Act and the Special Marriage " _ Act dealing with marriage and divorce. The reason for excluding proceed- V ingsiunder the Divorce Act, 1869, are equally applicable to proceedings ‘Ahmadi [abi v. Muhamed Maimob, >A,1.i1. 1979 Au. 374-t'De0ki Namnm, 1.). V °#LawV Commission of India, 3rd Report ;(Lim$tation Act, 1908), page 24, para 60. , V · I 89rH kumar or LAW CoMMN. or mom ON um LIMITATION ACT, 1963 ( 89 (Chapter 29— Sections 29 to 32—Savings, Transitional Provisions and Repeal.) ` under these other Acts. We recommend ‘that the _sub-section may be am- · plitied to include all Acts relating to matrimonial causes. The Acts to be . included may be specihed when drafting the amendment_t0t`!he 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 ` i of the Act of 1908 was as underi :»— A "25. Savings.—(1) Nothing in this Act- _ . ` ’ (a) ..... . .... , ...... _ ‘ — or I (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 Bill).”` Thus, the Commissions proposal (i) was confined to Acts and (ii) further A was confined to Acts to be specihed, 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 under any such law;" 1, _ . 2929. 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 i _ the subject and there might be State or Provincial, Acts, including even some _ l enactments of princely States? ‘ . . _ _ 29.30. Incidentally, it may be useful to mention here that the Law Com- Rl_<;9i;i¤¤¤‘Y mission (in the earlier Report) contemplated that} suits for dower would fall a l° °' _ . under the residuary article. {i.e. article 38 as proposed in the 3rd Report to i V replace article 120 of the Act of 1908 corresponding to article 113 of the pre- sent Act]. The Report observed‘:— A · I "‘ ............ Articles 103 and 104 which relatehto suit for dower might be left to be governed by the residuary article. A11 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 properlto revise section 29(3), R°°°’“m°"d**i°°· Q so as to define its scope more precisely than at present., We recommend that $· » . 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 o marriage by a decree of divorce, , _ Or for the grant of other matrimonial relief, nothing in this Act shall apply · to any suit or other proceeding under may such enactment." _ (1xb;Law Commission of India, 3rd Report, (Limitation Act, 1908), page 82, clause 25 .’Section 29(3), Limitation Act, 1963. . ` “Cf. Maniben v. Ramanhhai, (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 A . also ibid, page 87,.article 38. [ ’ _ . I3>—14M0fLI.& CA/ND/83 / ` · _ i _ ` ~ ` . 9() I 89Tr-I REPCRT or LAW coMMN. or INDIA ON rr-nz LIMITATION ACT, 1963 (Chapter 29~Sections 29 to 32—Savings, Transitional Provisions and Repeal.) i (Chapter 30~·Limitation and the Amendment of pleadings.) · A As to French and Portuguese laws, see above} As to Travancore Act also,· _ - see above? ._ V · £l9:!bggi;‘ \ 29.33. Section 30 makes transitional provisions for cases where the period ‘i _ , p,»0v$i;:O,,S_ ~ of limitation prescribed by the present Act is shorter than that prescribed by ` A ' the earlier Act of 1908, which stands repealed by the present Act. The section ' needs no change. ( I ‘ ~ ( 5¢cu9¤g3rT 29.34. Section 31 makes certain provisions for proceedings for which the `P°P5l"*$ Sum 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 · I . needs no change. `_ l section 32.. 29.35. Section 32 repeals the Act of 1908, and needs no change. Repeal. CHAPTER 30 'T I LIMITATION AND THE AMENDMENT OF PLEADINGS ( 1. r>»siti¤m"m mm §§¤D5h¤ft' 30.1. Tt is proposed in this Chapter to deal with the subject of amendment V ° ap "` of pleadings Iin so far as it is relevant to the question of limitation. I i I S . I I gbihlli- 17. t 30.2. The most important provision on the subject is in the Code of Civil _ ‘ ' I' Procedure, O.6, R. 17. That rule, being intended primarily to confer a general _ power on the court to allow amendment of the pleadings (in the intgests of J ` justice), naturally does not deal in detail with the ramitication of the exercise I of that power in the varieties of situations that occur in life. It does not, for A . that reason, deal with the question in what circumstances the power may be _ exercised. I . Amendment by adding a party is primarily taken care of by a specinc pro- · vision in the Limitation Act? I gig': C°“¤°il 30.3. The leading case in India on the subject of amendment of pleadings ' I I is a Privy Council one} The plaintiil"s object in that suit was;/Fo exercise his right of pre-emption, but, while drafting the plaint the plaintiff Ewho had asked for declaration of pre-emption rights) forgot to include a prayer for possession Iof the property. Later, he sought to amend the plaint to include_the prayer . for possession. Allowing the amendment, and dealing with the aspect of limi- tation, the Privy Council observed 1- "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 or legal right which has accrued to him by lapse of time, yetthere are eases (see for example, Mohummed Zah00r Ali Khan v. Mussumut Thakoarunee Rutta"K0er, (1867) ll ·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 · ’Pa1’a.29.17, supra. I I . i . I W ’P81'a 29.23, supra. ‘ ’Section 21, Limitation Act, 1963; Chapter 21, supra. ` ‘ *Char¢m. Das v. Amin Khan, A.I.R. .1921Ql?rivy Council 50, 51, 52. _· · ' ‘ 89rn aurora; or LAW comms. or INDIA ON THE L1M1’rAT1oN ACT, 1963 · 91 (Chapter 30--Limitation and t/ze Amendment of P/eadings.) V once it be accepted that they were attempting to establish those rights, there is no sullicient 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." 4 . 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. Alter the institution of the suit some more defendants - V were added on the allegation that they had combined with the obligor and had . "col0rably"2 procured her estate to be transferred to them in order to deprive the plaintiff of his remedy against the property. The main defence was that A ` 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 _Thak0oranee 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 Coupcil q - did not agree with the Endings 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 u11der:—- . c 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 pleadingsto be raised and discussed in the suit, yet this' liberality of construction must have some limit. A plain- tilf `cannot be entitled to relief upon facts or documents not stated or , referred to by him in his pleadings ............ They have, however, felt some , 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 Koen; 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 V appellant to amend? his plaint so as to make it a plaint against Rutta Koer ` A alone for the recoveryof money due on a Bond.” I A t ' ` » _. ‘ 30.5., Even in the later casei the Privy Council cautioned that such a power Power to · should not, as a rule, 'be exercised where its effect is to take away from a defen- f‘$`QQ§° 0*}* dam a legal right which had accrued to him by lapse of time. These general justice. · observations have also been repeated by the Supreme Court‘:— · V l ‘Mohummud Zahoar Ali Khan, v. M 8 “'(¥‘h(is)·looks like an American spelling but has been taken verbatim from the Report. “Ch,uran Das v.- Amir Khan, A.l.R.· 1921 P.C. 50. •Gangu Bai v. Vijay Kumar, A.I.R. 1974 S.C. 1126. ` 9) 89TH REPORT or LAW COMMN. 6FINDIA ON arm LIMITATICN ACT, 1963 A (Chapter 3()—Lirnitation and the Amendment 0fPleadings.) "The power to allow an amendment is un-doubtedly wide and may at _ · any stage be appropriately exercised in the interest of justice, the law vt · 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 _ i · court." 4 Overbfvid r k 30.6. At the same time, an overbroad argument that no matter whether a _"'um°m' Q right to property has been extinguished under statute, an amendment of the t pleadings should be allowed, was rejected by the Supreme Court in the verye case cited above. Nevertheless, it continues to be pressed now and then, with a ` gloss. So was it done in an Allahabad case‘, at which the question was whether the execution application could be amended even after the expiry of the period . of limitation. The application was tiled by a person other than the decree . · holder and theamendment was disallowed, ' ‘ , 30.7. on the other hand, in Madhya Pradesh case} reliance was placed on the observations of the Supreme Court? in Leach & C0. Ltd. v. Jardine Skinner dt 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 _ 'forjhe first time. The court observed:—— A "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 claim for damages for breach of contract for non—delivery of goods j when ordinarily the suit was for damagesfor conversion of goodsas an action _ in trover. The Court found that all the allegations which are necessary for sas- ' taining a claim for damages for breach of contract were already in the plaizrt A and all that was lacking was only the allegation that the plaintiffs were in the altemative entitled to claim damages. e _ , _ j 30.9. In this context the Supreme Court referred to the leading case of Charan Das‘ and observed:- A "It is no doubt true that Courts would, as a rule, decline to allow A 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 Q into account in exercise of the discretion as to whether amendment should —» be ordered, and does not alfect; the power of the court to order it, if that . ·is required in the interests of justice." J A _ 1 Such verbal amendment has always been allowed by courts} i A A Amndgnt not 30-10- Wh¤I`€ UW plaintiif in 3 suit for recovery of money which was insti- . to`i¤¤·cd¤¤c tuted on the basis of a chit acknowledging receipt of money borrowed and also ’ "W °s°’ a promissory note executed on 'the same day,_s0ught, to amend the plaint by I i , introducing a relief on the basis of the‘pr0misory 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 , I . 1Kishare J00 v. Gumun Behari Jac Deo, A.l.R.A 1978 Allahabad 1. n _ · . ”Anandi5ai v. Sundarbai, A.I.R. 1965 M.P. 85, 88. °Leach & C0. Ltd. v. Jardine Skinner & Co. A.I.R. 1957 S.C. 357. , ‘Charan Das v. Amir Khan, A.I.R. 1921 P.C. 50 supra. A A _ ‘Leach & C0. Ltd. v. Jardine Skinner & C0., A.I.R. 1957 S.C. 357, 362. ` ‘ 89ru REPORT or LAW coMMN. OF INDIA ON THE L1M1a‘AT10N ACT, 1963 93 _ _ (Chapter 30---Limitation and the amendment of P/eadings.) 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 l 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, they plaintiff sought to amend the plaint by adding an extra relief for a decree for the contractmoney. 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?$°1ggf:“°’? shows that the power has been regarded as a wide one. All the same, one can ’ pi discem from the judgments certain guiding lights that indicate the proper app- . roach to adopted in exercising the judicial discretion in the matter. i review of ·the judicial pronouncements in Indiaon the subject of amend- ment of pleadings brings to surface the following broad principles: a _ (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- V - 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, eventhough 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 , blunderir1g.° · ‘ (4) A suitovshould not suifer becausehe failed to amend his plaint at any ` - early stage ofthe proceedings? j · _ . (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 cla_im, the amendment should be allowed? (6) Amendment should be allowed if no prejudice is caused to any party and theamendment is based entirely on facts stated in the original plaint} ` · _ _ ` i V _ (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. ` ‘Govinda Chetti v. M. V. Chinnappa, A.I.R. 1973 Mad. 400. "Gurmukh Singh v.iDaIip Singh, A.I.R. 1971 Punjab & Haryana 419. - ` ”Suraj.Bhan v. Balwant Singh, A.I.R. 1972 Punjab & Haryana 276. "A.K. Gupta v. Damcdar Valley _Corp., A.I.R. 1967 S-C, 96, 98. *Gungabai v. Viiay Kumar, A.I.R· 1974 S.C. 2216 (supra)/“· ‘Charan. Das v. Amir Khan. A.I.R. 1921 P.C. 50. F ` ’Mohmmud Zahoor Ali Khan, v. Mumtmat Thakooramzc Ruila Kaer, (1807) Moore’s . Indian Appeals 468. V ‘ · * 'Leach & C0. W Jardine Skinner & C0., A.I.R. 1957 S.C. 357. j ·’A. K. Gupta v. Damodar Valley Corporation, A.I.R. 1967 »S.C. 96. I 94 . V 89m REPORT or LAW OOMMN. or INDIA ON rua LiM1rAr1oN ACT, 1963 · . . (Chapter 3O—··].4lIIl[llZll0l2 and the Amendment of Pleadings.) _ V ll. Position in England i I Developments 30.11. Developments in certain other countries are also of interest. In Eng- m England land, as Iong back as 1887, Lord Esher re.fused‘ to a plaintill leave to amend I0 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- i ‘i ` ' line in practice:- e 4 - "We must act on the settled rule of practice, which is that amendments 619% · 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 p would be allowing the plaintiff to take advantage of her former writ to ~ 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." . l ( _ 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 ithat 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. Q " '_ Rules of the 30.12. This position practically, held the lield in the England till the coming . » _ %’Pl;‘;‘l;¤(é9“‘* in force of the Rules of the Supreme Court, 1966. Order 20, Rule 4-of these ` ¥ V Rules provide as under:—— "S (l) 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 writ, or any party to amend his pleadings, on such terms as- to costs or otherwise asf 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) ip made Zafter any relevant period of e limitation current at the date of issue of the writ has expired, the court may nevertheless grant suchjleave 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 “efIect 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) if 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 ; 9 counter claim, as the case may° be, `he might have sued. _ ‘Weld0n v. Neal (1887) 19 Q.B.D. `394,I39S;· 56 LJ. Q.B. 621 (C.A.) _ ‘ " (89TH kE1>0RT OF LAW c0MMN. OF INDIA 0N,THE LIMITATION ACT, 1963 · 95 (Chapter 30---Limitation and the Amendment of Pleadings.) » ’ (5) ·An amendment may be allowed under paragraph (2) notwithstand- r l _ ‘ mg 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- V ~ ‘ I tantially the same facts as a cause of action in respect of which rehef has _ _ already been claimed in the action by the party applying for leave to make . i ' the amendment." A . 30.13. Doubts were expressed by· a writer' that such a sweeping provision.? Doug? ex-wh 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 Dennings ‘ he boldly stated- that the above rule has "specifically over-ruled a series of cases v'°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." t . ' 30.15. These observations were not approved in a later case} but when the question came up againi before Lord Denning, he reiterated his earlier statement. _` 30.16. About a hundred years ago, Bowen LJ., while addressing Americanraddress by e (Judges and lawyers emphatically gave his assurance'. "It may be asserted_without B°“’°“ L-I- · r 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 ofr 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 et action, whenever justice `_ so requires."’ , _ A ‘ ~ The author, at the end of above article, has prepared a chart giving a list s or 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 A chart graphically bringshome the point that the law on the subjects is ina Huid. R , { state and firm guidelines should be incorporated in the statutory rules to enable A the courts to exericse their discretion in such matters predicated upon certain principles. , — Y — ( _ _ Ill. Australia and Cami · . . s V- 30.17. The position in Australia may now be dealt with. In a re_cent,article Hm-dsbjp_i°g· ·- m the Australian Law Journal} the writer has liaed the hardships `which the rule glghggfvm ·`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 :— '“Hs°d.i* . A ` _ . · _ Australia. , ’Michael J_ Goodman "Problems of Limitation" H9 New Law Journal 814. _ ?Virtual1y identical provisions appear in the rules of the Federal Court of Canada . · (General Orders and Rules GORS) and in the Nova Scotia Civil Procedure Rules). 'Chutworrh Investments Ltd, v. Cussins (Contractors-) Ltd., (1969) 1 All E. Reports 143. \ 959 *Branitf v Holland and Hennad & Cubitts (Southern) Lt. Another, (1969) 3 A.E.R. ‘ _ ·‘Starman v. E.W. & W.], Moore Ltd. (1970 1 All E.R. 581. ,L] {Address by Bowen L.]. quoted in Potin v. Wood, (1962) 1 Q.B. 609 (C.A.) (Pearce .· lPer Glass I.A. in Megeev. Yeomans (1977) 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, p. 643, 644 Footnotes given in that original article are omitt., cd; except a few. ‘ ' . \ ‘ 96 ` - 89m msrokr or 1.Aw ooMMN. or INDIA ON rm; r.nvrrrArroN scr, 1963 r · , (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 jurisdictionsz to displace (at A least partially) this ‘settled rule of practice’, the rule in Weld0n v. Neal still . c _ applies 1.11 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 ditliculties experienced by the courts int defining the exact scope of the rule with particular reference to to ' 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 found in an English case? . 4 ` 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- _ , v ginally the claim for damage to goods carried was based on a specific voyage · and no speciiic bills of lading of a particular case. ' 'Saskatebewan `30.l9. In Canada, the Saskatchewan,` jurisdiction has gone a step further. L"’· The Queen’s Bench Act° provides as under :— . "Where an action is brought to enforce any right, legal or equitable, the I court may permit the amendment of any pleading or other proceeding therein I upon such terms as to costs or otherwise as it deems just, notwithstanding A that, between the time of the issue of the writ and the application for amend- -` A 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." » 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 I defendant. ought not to be called on to resist a claim when evidence has been . lost, memories have faded and witnesses have disappeared. . » Alberta Act. 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. , ~ Ontario Law · -30,21. In 1969 the Ontario Law Reform Commission in its Report on the ,Reform Limitation of Actions, recommended that: , Cmmnissi0n’s ' . ° R¢P<>¤‘f- "In any action, the court should be able to allow the amendment of · V any pleading or other proceedings, oran application for a change of party, ` · ’R.S.C.O. 20, r. 5. V “' i A p 2N.S.W.: Pt. 20 r. 45 Queensland: 0.32, r.1: South Australia, 0.28, r.1; Western Aus- ` . tralia: 0.21, r. 5. _ 3Brickfield Properties Ltd. vs. Newton (1971) 1 W.L.R. 862 (C.A.). fChatsw0rtlz Investment Ltd. v. Cussins (Contractors) Ltd. (1969) 1 All E,R. 143, 145. fCun_ Motor Sales Corp. Ltd. vs. Madonna, 24 D.L.R. (3rd) 593. °Sect10n 44(ll), Saskatchewan Queens Secret Act (19 5) (Ch. 73). · . ~ L ’Cary D. Watson, "Amendment of proceedings after dimitation. periods", 53 Canadian s ’ Ha; Reviewr237. __ ,. · if , I 89rrr nnronr or LAW comin:. or n~u>rA ON rms L1Ml“1'AT1ON Aer, 1963 97 (Chapter 30-—Limitation and the Amendment of Plcadings.) ` A A (Chapter 31—Articles 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 provisi0n.’" _ C r 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. A The delivery or mailing of process to the United States Attorney, or his r designee, or the Attorney General of the United States, or any agency or V oilicer 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 ollicer thereof to be brought into the action as a defendant." r _ VI. Summary of developments elsewhere I 30.23. The developments elsewhere outlined above show a certain amount Diverse of diversity of approach. The Saskatchewan Act,2 which is at the one end of the ”P'°“°h°s· spectrum, confers a very wide power on the court——an approach also favoured I 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 iluid. CHAPTER sr I ARTICLES 1 to S : SUITS RELATING T0 ACCOUNTS 31.1. We now proceed to a consideration of the articles contained in the Amd. 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 account; such year _ mands between the parties. to be computed as in the account." e It is idcntjcal with article 85 of the Act of 1908 and 1877. I) I A - 'Ontari0 Law Reform Commission Report on the Limitation of Actions, 1969. . “Para 30.19, suvra. _ ~· » o 14-—l4 M of U&CA]N'D*S3 V , 98 · 891"H REPORT OF LAW COMMN. or INDIA ON THE LiM1rAr1oN Acer, 1963 ~ ‘ J (Chapter 31—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:— ` ` ` ` "For the balance due on a mutual, Three The time of the last item admitted ‘ _ open and current account where years. or proved in the account." · · 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. Artic]? 1 ` 31.2. Article 2 reads as under:— ` l “Against a factor for an account. _ Three When the account is, during the , years. continuance of the agency, demanded A · . and refused, or where no such demand is made, when the agency _ terminates." It is identical with article 88 of the Acts of 1908 and 1877. It corresponds ‘ Y td article 64 of the Act of 1871, with slight verbal changes in the last column. . · No change is needed in the article. Article 3, U 31.3. Article 3 reads as under:- y ` "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 4 · and refused or, when no such for. I 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 a 1871 read—"When the account is demanded and refused." A Suit anus; 3f.4. Article 3, during its development from 1871, has given rise to three legal - _ . Smwisgfgf V types of problems. The lirst was \ U" °“°"t‘ Does the article apply to a case when the principal sues,. not the original A agent but the legal representatives of the agent? T The High Courts of Madya Pradesh} Punjab} Nagpur! Calcutta} Madras“ and Allahabadl 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 casc’ 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 \. ‘ ‘See Hindustan Forest Co. v. Lal Chand, A.I.R. 1959 5.C. 1349. 2Kashiram v. Santokbhui, A.I.R. 1968 M.P. 91. ` . ilagir Singh v. Dheru, A.I.R. 1958 Punj. 487. *Deorao Zolba v. Laxmansingh, A.I.R. 1943, Nagpur 227. ` *Bikrunt Kishore v. Jadab Chandra, A.I.R. 1935 Cal. 817. - ‘Appu Rao v. Subba Rao, A.I.R. 1927 Madras 157. ‘ ‘ "Ramrup Goshain v. Ramdhari Bhagat, A.I.R. 1925 A11. 683. ’ “N0bin Chandra v. Chandra Madhah, A.I.R. 1916 P.C. 148. ‘ ’Bindrabun Behari v. Jamuna Klurvdr, (1903) I.L.R. 25 Allahabad 55. I 89rn naponr or LAW comin. or INDIA oN me LIMITATION ACT, 1963 99 _ (Chapter 31—-Articles 1 t0 5 : Suits Relating t0 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 c 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 dennition of the word "defendant" occurring in section N0 ¢b¤¤$= A ’ 2(e) of the Act of 1908 and the later decisions mentioned above} the controversy $0 lg is could be said to have been put at rest, and no amendment of the text of the arti-repregintative. . cle on this point is called for. ‘ ‘ 31.7. The second question that arose under artic1e“ 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 gl/hitley _ against the word "refused", which runs as under:- a:,°:{°i:f;'°w » _ l el . "That is, expressly rcfused——but see III C.L.R. 446." cas aw I . . Coming as it did from the pen of one who was also a Legislative Secretary V tothe Govemment 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 I 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 pbint was again argued in a Bombay case* by Mr. Setalvad and the A A ` ° court observed:- Y ‘ "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 all_respect I differ from this view. In my opinion, whether an account was demanded and refused or notmust 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 change · Court°-’ and the Chief Court of Sind“. Qgddofs *9 _;___.m..._.-_........_........._....._......... ··..¥E..t··. A ‘Muthura Nath v. Chheddu, A.I.R. 1917 All. 14. ` ’Parag1‘aph 31.4, supra. _ “St0kes Anglo-India Codes (1888), Vol. 2, page 987. ‘Bhabatarini Debi v. Sheikh Bhaltadur Sarkar, A.I.R. 1919 Cal. 458. ‘l(ars0ndas Dhunjibhoy v. Surajbhan Ramrijnal, A.I.R. 1933 Bombay 450, 457. “Abdtd Latiji v. Gopcswur Chattoraj, A.I.R. 1933 Cal. 204. - 7Pran Ram Mookerjee v. Jagadish Nath Ray, A.I.R. 1922 Cal. 355. ` ’Ganeshdas Lokuram v. Gangaram Dhingar,.A.I.R. 1930 Smd_ 142. l00_ L, 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATIONIACT, 1963 I (Chapter 31—Articles I 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 "rcfusal" · could be an implied one. Tlqmiumou 31.11. The third point that arises under article 3 is: what should be taken ° Qf ¤!¢¤¢Y— as the point of time ‘when the agency terminates’, within the meaning of the gmgdd Y third column of the schedule? , Garth wd Mr. Hobhouse. > 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 _ . , V principal to bring his action against his agent for moveable property receiv· ~ - ‘ · V ed, and not accounted for, is three years from the time when the account is ` ’ p ` demanded and refused." I ` -"This clause would virtually give the principal an almost indefinite time I I 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 I . the principal may demand money or any other property he thinks proper, and A 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- I 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 Hrst ` 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.” I / Views ef · 31.12. The Madras High Courtf held that the agency terminated with the sell- » "¤'l°“$ Hifb ing of goods, and did not continue till the accounts were settled and money re- Coum mitted. A contrary view was expressed by the Calcutta, High Court in ·an· early _ casef 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 Allahabadl -view is that the {question of termination ’ , depends on the circumstances of each case. I No change. _ 31.14. It appears that the pharaseology used in the article will have to be- V _ , applied and interpreted in the facts of each case. A change in the pharaseology , I would be no improvement in practice. In the result, article 3 needs no change. D ‘Hon’ble Sir Richard Garth D.O. letter to the Hon’ble Arthur Hobhouse, Q.C., dated Sth March, 1876—National Archives File pertaining to papers of 1877. . ` “Na;,·uvyu and another v. T/wmmandra Yerrikalappa, A.I.R. 1934 Mad. 691 (1). 3Fink 'v. Buldeo Dass, (1899) I.L.R. 26 Cal. 715. r ‘G0rdhandas v. Firm of Gokal Khutaoo, A.l·R. 1926 Sind 264. I . · " 5Babu Ram V. Ram Dayal, (1890) I.L.R. 12 All $41. _ 89ru rzuronr or mw comm. or mom on me Limmmou Aer, 1963 . , 101 ~ (Chapter 3l—Articles 1 to 5: Suits Relating to Accounts.) A (Cisapter 32—-Articles 6 to 55: Suits Relating to Contracts.) I i 31.15. Article 4 reads as under.- A"l°l° 4- g . I "Other suits by principles against Three When the neglect or misconduct A agents for neglect orrnisconduct. years. becomes known to theplaintii1`." - 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- A - "When the neglect or misconduct ocours."p I V The present provision is sound in principle, and has created no difficulties. ` No change is therefore recommended. 31.16. It would be seen from the genesis of the present article that a very n 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 plaintil‘f" after the . ` word "misconduct".‘ In fact, the draft of the 1877 Act which was circulated for i ‘ comments contained the clause "when the neglect or misconduct occurs or be- comes known to the plaintiif", but the words "occurs or" were omitted in the final draft. » ‘ On this reasoning, the High Courts of Allahabadk 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- perty. 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. i ` No change is, therefore, needed in this article. * ~ _ ” . 31.17. Article 5 reads as under :—— _ Y Anim 5_ · _ » "For an account and a share of the Three The date of the dissolution." § 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. I CHAPTER 32 —* l ARTICLES 6 T0 55 : SUITS RELATHWG T0 CONTRACTS " 32.1. Article 6_prescribes a limitation period of 3 years for a suit for a sea- Article 6_ E ;man’s wages.AThe 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. _ · ' I V l The article needs no change. . ' I Uagauji v. Bandan, A.1.R. 1930, All. 397. m . “Saktiprasanna Bhattacharya v. Naliniranjun Bhattacharya, A.1.R. 1931 Cal. 738._ 3San.karanarayanu Ayyar and another, v. Trichondurrbharmanarmalnm Saktlntharn _ Bhaiana Soblm _thr0'ugh A. Sivarama/trishrm Iyer, A.I.R. 1939 Mad. 114. 1 ‘ . {02 89rrr Rnronr or LAW COMMN. OF INDIA ON THE LiM1rAr1oN Acr, 1963 I (Chapter 32——Articles 6 to 55: Suits Relating to Contracts.) · 32.2. Article 7 reads as under :—- ‘ Article 7. "7. For wages in the case of any Three When the wages accrue ·due". other person. years. The subject was covered in the Act of 1908 by two articles. U 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. Salam 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 ~ A _ addressed before the Courts time and again that the salary of a Govemmenti 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 V Supreme Court observedl :—- V e “ " ............' 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 diliiculty is e 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 LimitationiAct· 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·§l908, 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 or 1908." In a later case} the Supreme Court, relying on a judgment of the Federal p 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. ‘ Sum fm. ’ 32.4. The second question in connection with article 7 relates to the situa- arrears cf tion where the dismissal of a Government servant is set aside and, on re-instate- iglagaggwm ment, he sues for arrears of salary. The Supreme Court has dealt with the matter ' in service. [busi ‘ ` Y, I "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 thatbe 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 . IS. D. S. Srivastava v. Union of India, A.I.R. 1974 S.C. 338, 341; (1974) 2 SCR 485. - `*Maimoona Khatun v. State of U.P. (1980) 3 S.C.C. 578. _ 3Punjab Province v. Tarachand, A.l.R. 1947 F.C. 23, para 28, 33 (1947) F.C. S9. _ _ f *Ana·nd Swarup v. Punjab A.I.R. 1972 S.C. 2638, . _ V 5See paragraph 32.8, infra. Wai Chand Sawhney v. Union of India, (1970) 2 S.C.I. 288, 289. ` 7 5- ‘ _ 89Tu marokr or LAW commu. or INDIA ON THE LIMITATION Acr, 1963 1 103 t (Chapter 32——Artie/es 6 ta 55: Suits Relating to Contracts.) I tb run when the wages accrue due’, and wages accrue due when in law the servant becomes entitled to wages." I, _ 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 dismissalis 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 Govern- 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 Bombayl High Court referred to the eifect 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 carmot 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 Courti——like the Bombay High Court—has made the _ statutory rules as the plank upon which to base its judgment in this regard. I 32.6. The Cuttack High Court“, on the facts of —a case before it, held that the Government servant was illegally— prevented from performing his duties, although he was ready and willing to perform those duties, and hence the cause C of action arose only on the day when the court quashed the impugned order of · transfer. ' t C » The Madras High Court* had, before it, a case of an employee who was i 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 onetwith which we are faced, has to be interpreted, as we said, liberally and equitably. When an employee p whose services have been illegally terminated has been reinstated and when C he is informed that the period during which he was otf 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 Courts also held that a claim for arrears of salary of a C public servantwho 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 Prasad Gumasta, l.L.R. (1968) Bom. 1024. ’Laxmiben v. State of Gujarat, (1970) *1 Gujarat Law Reporter 51. ’Baikunthunath Pratihari v. State of Orissa, (1974) Cuttack `Law Times, 532. ‘Uni0n of India V. Venkatarama Naidu, (1975) 1 M.L.J. 345, 350. , ‘Umasankar Das v. State of West Bengal, (1972-73) 77 C.W.N. 899. · · 104 89TH REPORT or LAW c0MMN. OF INDIA ON THE LIMITATION ACT, 1963 l (Chapter 32——Articles 6 to 55: Suits Relating to Contracts.) {I-1*;:: Egg; r 32.7. It is now no longer necessary to cull out niceties from the facts pccu- A Supreme Court. liar·to each case, because the Supreme Court has itself, in a recent judgmcnth · distinguished its earlier case? The Supreme Court has observed: ll / "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- I, rity-or by virtue of the order of dismissal or removal being set aside by a » I civil court, the starting point of limitation would be not the date of the order of dismissal or removal, but thedate when the right actually accrues, that is to say, the date of the reinstatement, by the**appointing authority where no suit is filed or the date of the decree whlere lat suit is filed and cr decree." * ‘·‘ t The earlier case* having not been overruled, the observations made therein that even if the dismissal or removal is declared ab initio..in’va1id, the salary due to . the public servant must be deemed to have accrued montluafter _month, may be · . ` construed as still holding the held. 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. :l;°fg'“m°“d“°i°" 32.8. In this position, we think that the matter should be put beyond doubt article 1. 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." ‘ V Further, as already recommcndedi an Explanation should bc inserted be- ‘ low article 7, as under :— "Explanation.—-—ln this'article and in article 6, the expression "wages" in- cludes salary and pension." . Article 8. — 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. “ t It corresponds to article 8 of the Act of 1908, quoted below :— "For the prioe of food or drink One When the food or drink is de1ivercd." sold by the keeper of a hotel, year. t ~ tavern or lodging-house. This was identical with article 8 in the of 1877 and 1871. The Law Commission recommended in its Report on the Act of 1908 that . ` ‘ the period of limitation should be increased from one year to three yearss. This ` has been implemented in the Act of 1963. No further change is needed in the 1 article. r *Maim00mz Khatun v. State of U.P. (1980) S.C.C. 578, 586. . · zlaichund Smvhn?r’s case, (1970) 3 S_C.R. 222; (1969) 3 S.C.C. 642; (1970) 2 S-CJ. - 288 See paragraph 32. , supra. ilaichtmd Sawhney V. Union of India, (1970) 3 $C.R. 222; (1970) 2 S.C.J. 288. See para- graph 32.4, supra. » *Paragraph 32.3, supra. , . ( ‘Law Commissionof India, 3rd Report (Limitation Act, 1908), page 30, para 71. . |` ,. 89ru Rnrokr or LAW comin. or INDIA ON THB L1MrrArr0N ACT, 1963 ws (Chapter 32——Articles 6 to 55 ; Suits Re/airbag to Contracts.) A 1 _ A 32.10. Article 9 reads as under :— A A¤‘ii¢l• 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:`- . ' A "For the price of lodging . One When the price becomes payable" A ° — ' 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. ` Argchs I0 4 2 . 32.11. (a) Article 10 reads as under :—- B · "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 at carrier for compensa-lOne When the loss or injury occurs." tion for losing or injuring goods. year| ' Article 30 of the Act of 1877 and articre 36 of the Act of 1871 were iden- — tical, except that the period was two years. ` I _ (b) Article 11 reads as under:- V “/tgainst a carrier for compensa· Three When the goods ought to be deliver- · 3 tion for non—delivery of, or delay years. ed." _ · in delivering, goods. A » 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 uon-delivery of, or delay year. ed." _ in delivering goods. - Article 31 of the Act of 1877 and article 37 of the Act of 1871 were identi- I cal, except that the period was two years. · Acting upon the recommendations of the Law Commissionf the period of limitation has been raised from one year (Act of 1908) to three years. in both _ _ the articles. [ , 32.12 Articles 10-11 came to be noticed. bythe Supreme Court‘ in a case in C0mp,,,m;,,,; which it was argued that because articles 30 and 31 of the Limitation Act, 1908 }¥;;l)W¤~Y¤ Mil- (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 _ argument was, however, repelled by the Court, ovemiling a full bench, judgment of the Allahabad High Court"‘ to the contrary. Even though the Supreme Court has noticed the diiferent, starting points of limitatiomin articles 10 and ll, it has not commented adversely upon it, nor has it made any suggestion for improve- ment. g ` V *Law Commission of India, 3rd Report (Limitation Act. lm, P¤ll¢ 30. PMB 7L. A ’Law Commission of India, 3rd Report (Limitation Act 1 , page 30.para 72. 3Governor General in Council v. Musadi Lal A.I.R. 1967 RC. 725. . ` *Governor General in Council v. Mahobir Ram A.1.R. 1932, All. 891 (FB-). 15-14 M otLJ&€A/ND/83 · _ . ’ I 106 89m iusroar or LA\V coiynvm. or INDIA or: me LIMITATION Acr, 1963 - , (Chapter 32·—-Articles 6 to 55 :' Suits Relating to Contracts.) Misdelivery. _ 32.13. A single Judge of the Madras High Courtl has held that article 31 of §::’mm°°d°' the Act of 1908 (now article ll) 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 A 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 Courta also relying on a Supreme Court case'. has ruled otherwise. In the case relied upon by the Delhi High Court, however, r` · 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 e to the suit claim, whereas the learned .Counsel for the respondent contended - ihat 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 A 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 11on-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 K tirst column of article 11 should be revised so as to cover misdelivery.° Starting point ‘i 32.14. The third column of article 10, which prescribes as the starting point jlgdx °m°l° the time "when the loss or injury occurs", has created difticulties 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 » · 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- _ A _ ing _‘€the eommonsense rule" that the period begins to run from the knowledge ( , A 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 :—— V { "The period of limitation runs from the actual date of loss and not from · `thedate when it comes to the notice of the plaintiff; the date when he comes ~ ` l to know of the loss is utterly irrelevant, _not being an ingredient of the cause 4 of action. It is axiomatic that the date, of the happening of an event is A .. different from the date of knowledge of the happening. A consignee may · . not know of loss of the consigmnentias soon as it takes place and if the · I lawiof limitation containedin article.30 operates harshly upon the consignee, :· the remedy is with the Legislature and not in distorting the language used V in article 30." ` i _ A A Recommends- ‘ 32.15. Whenever open delivery of goods is taken, the courts have been ~ $3 }‘5_u_ holding that limitation would begin to Yun from the date of open delivery which · 'Union of India v. Ramchand Kishanchand & Co., A.I.R. 1974 Mad. 335, 337. 2Bottamai v. Union of India, A.I.R. 1962 S.C. 1716. ' ‘ ‘ $(1972) 74 Punjab Law Reporter 101. _ *Uni0n of India v. Amar Singh, A.I.R. 1960 S.C. 233. V ’ 5Union of India. v. Amar Singh, 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. Chattiur & Co. v. Union of India, A.1,R. -1971 Mad. 34. “Union oflndia v. Ramchand Kishane {Co_.A.l.R. 1974 Mad. 335- *0udh and Ttrhut Rly. v. Mrs. Karam gh ,;A.I·R. 1958 All. 234, 243. V _ '__ ` ` . i ‘ ‘ , 89rH narokr or LAW c0MMN. or INDIA ON THE L1M1TATi0N ACT, 1963 ‘ ` (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-ll) should be amended so as to make knowledge of 1he loss, injury, delay, mis-deli- ~ very, non-delivery or delay thestarting point·of limitation} ` V » IV. Short-Delivery r I ‘ 32.16. There was previously some conflict of opinion on the question whe- Short- A- ther short delivery amounted to "l0ss" within the meaning of article 10 or whe- d°l'v°'y 9 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. Recmnmemhlion l I 32.17. In the light of the above discussionh we recommend that articles Recommendation and ll should be revised as under: as *°“*`**°'°* mu- “10. Againsta carrier for compen- Three When the plaintyfhas knowledge of » sation for losing or injuring years. the loss or injury." goods. 1___ "l1. Against a carrier for com- Three When the plaintiff has knowledge _ pensation f`or non-delivery ot`, or years. of the non-delivery, mis-delivery or delay in delivery ot`, goods. . eklay as the case may be." 32.18. This takes us to article 12, which reads as under ;— Article l2_ H "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. _ A 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 changed this to "when the hire becomes payables? l The article needsno change. 5 32.19. Article 13 reads as under :—— Amd: |3_ ( h _ ` _‘For the balance of money advanc- Three When the goods ought to be deliver- ' ed in payment of goods to be deli- years. ed." _ vered. l V It is identical with article 51 of the Acts of 1908 and 1877, and with article 50 of the Act of 1871. I ` ¢ A ‘ ` “""'VC 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 ` ’Uuiun of India v. Kawai Parkash, /\_l,R. 1977 l_)e|I·i l46 . "As to article ll, First column, see also paragraph 32,I4, sunra. , . “B0ota Mal v. Union of India, A.l.R. 1962 S.C. l7l6. A ‘ ‘P:1ragraphs 32.13 and 32.15, supra. _ ` _ {National Archives File No; LEG. Act IX-XVI of 1871, pages, 15, 63. I ii; A 891*11 aaron or Law comm. or 11·1D1A on me LlMlTATlDN Aer, 1963 _ · (Chapter 32- Articles 6 io 55: Suits Relating to Contracts.) y recommended' that these should all be replaced by one article for suits based on it _ . contract or on tort. However, no change has been effected in the Act of 1963 in this regard. e We also do not recommend any change in the article. A Article i4. 32.20. Article 14 reads as under :—— . y . "For_'the rice of goods sold and Three The date of the delivery of the delivereciwhere no nxed period years. goods." of credit is agreed upon. “ e It is identical with article 52 of the Acts of 1908 and 1877, and with article 51 ofthe Act of 1871. ‘ starting point 32.21. A question that needs to be considered is what should be the start- of ii¤¤l1·¤¤°¤· ing point for limitation under article 14, when the goods are delivered at diferent goods delivered . . . . from time to times? The view of the Madras High Court’ is that when goods are supplied l¤¤¢· 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 p 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 unadjustcd falls beyond three years from the date of institution · t 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 1 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 Kerala High Cou.rt‘ 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 ot the Limitation Act, 1963. No change The manner in which payments are to be applied by the creditor has . ”°°“‘· been oodined in sections 59 to 61 of the- Contract Act. The applicability of arti- ' ele 14 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 oi the article is called for, to deal specifically I with cases of delivery of goods from time to time. Nadu {H6 32..23. (a) Article 15 reads as under :—-— » r "For the price of goods sold and Three When the period of credit expires." I delivered to be id for after the years. ‘ I expiry of a lixexperiod of credit. ' v _ It is identical with article 53 of thc Acts of 1908 and 1877. In the Act of ` 1871, article 52 was in the same terms but the starting point was-—“The expiry A . of the period of eredit". ‘Law Commission of India, 3rd Report (Limitation Act, 1908) pages 31-32, para 74, and page 83, Article l. . _ *Md. Sultan it Co. v. Manickum, A.I.R. 1961 Mad. 388. p · ~ 3Chandra Nath v. Prahlad Namin. A.I.R. 1961 Raj. 154. ~ ’Cha·rumei v. Purusliothama, A.I.R. 1973 174.7,7 7 Q . 89TH. REPORT OF LAW OOMMN. OF INDIA ON THB LIMITATION ACT, 1963 109 V (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 thc Acts of 1908 and 1877, and with article , 53 of the Act of 1871. r 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. (c) On a consideration of the articles and the cases thereon we do not con- sider it necessary to recommend any change. - 32.24. Article 17 reads as under :— A Amd: I-L "For the price of trees or growing Three The date of the sale." - , e crops sold by the plaintilf to the years. defendant where no iixedj period oi? credit is agreed upon. _ It is identical with article 55 of the Acts of 1908 and 1877, and with article 54 ofthe Act of 1871. The article needs no change. , 32.25. Article 18 reads as under :— _ A, _ Article 18_ "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. g It is identical with article 56 O1 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 agrticle 10 and _ work for the Government under a contract which is finalised after the invitationcoigggynt 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). ‘ ‘ 1» 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} ° Now that the period of Limitation tmder article 120 of the 1908 Act (resi- duary article) has been reduced to three years in article 113 of the 1963 Act, the plaintilf 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. r _ 1 'Law Commission of India, 3rd Report (Limitation Act. 1908). pages 31-32, paragraph 74 · 2Sta1e of Bihar v. Rama Bhushan, A.I.R. 1964 Pat. 326. “Sul1buraiu v. Village Punchayar, A.I.R. 1965 A.P. 186. V i ‘ZHa Parishad v. Shanri Devi, A.I.R. 1965 A11. 590·(F.B.).; 110 89TH REPORT or LAW COMMN. or 1NmA ON mrs LIMITATIONV ACT, 1963 · _ , (Chapter 32~Articles 6 to 55; Suits Relating to Contracts.) Article 19. 32.27. Article 19 reads as under :—· l "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. . _ 0 Article 20. , 32.28. Article 20 reads as under :—- . "Like\suit when the lender has given Three When the cheque is .paid." ‘ a:cheque for thefmoney. 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. Article 21 32.29. Article 21 reads as under : A · R ‘ i"For money lent under an agree- Three When the loan is n1adc." ment that it shall be payable 011 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: Q "For money lent under an agree- Three When the demand is 1nade." . ment that it shall be payable on years. · demand. · -. _ No change is needed in the article. v Article 22. 32.30. Article 22 reads as under 2 · ’ t"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. 1 · . It is identical with article 60 of the Act of 1908. _ _ Article 60 of the Act of 1877 was as under:—- ` A "For money deposited under an . Three. When.the demand is made/’ _ . agreement that it shall be payable years. . -‘ on demand. 1 V There was no corresponding provision in the Act of 1871. 'Deposits. 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 h·as 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 plaintiif 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." ~ IA bdul Karim v. Dy. Custodian General, ATR. 1964 S.C. 1256, 1259. f . i \l I x . i 89rn REPORT or mw comm. or rNmA· ON mn LIMITATION Aer, 1963 1 ~ 111 · (Chapter 32~—Articles 6 t0 55: Suits Re/ating tb Cantraets.) 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 I payable on demand." ' "Such an agreement could be expressed or implied and if an express c agreement in that behalf was recorded inthe document in the terms above, I 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 e — 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 pro- `~ _ missory 11ote." # 1 , . 32.32. In this position, it does not seem necessary to suggest any amendment No change in, the article. The question of fixed deposits (deposits for a specified period) will "°°d°d· be dealt with separately? A 32.33. Although the Limitation Act contains fairly elaborate provisions re- Article 32A - garding suits for the recovery of money, it does not deal specifically with claimsg{g¥’;’g°gg; for the recovery of money which is placed in fixed deposits with banks or cthereover money g companies. As a result, one cannot immediately locate the article that is applica-Elzifddégosit. 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——article 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 torabovc. ( · 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 ar 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. _i ` 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. l2.' . *'See discussion relating to article 22A. infra. 3K. S. Wani v. New Akola Cotton Ginning Press, A.I.R. 1958 S.C. 437, 438, 439. *Bank of Upper India V. Arif Hussain, A.T.R. 1931 All. 59(2), 62. , 5Kashinath v. N.A._C,G. & C0., A.l.R. 1951 Nag. 255. V ‘N0kh·la·l Sariunrasad v. Mojiban. A.l.R. 1939 Pat. 261. , "'Jammu and Kashmir Bank v. Nirmal Devi, A.I.R. 1959 .l&K 95. V 6-{Hindustan Commercial Bank v. lograr Singh ,A.I,R. 1974 P&H 211,/.212, paragraphs 112 89TH REPORT or LAW c0M;MN. or mum on me LIMITATION Acr, 1963 C (Chapter 3} Artic/cs 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)l 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 decisio11`(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 difficulty 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. s 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- 9 · 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 casef 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. P°S€*1°¤ ¤¤d°' 32.34. By way of a statement of the legalposition under the earlier Act mum ACL (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 i . term. Sometimes, the residuary article as _to "compensation for the breach of · any contract‘ was resorted to‘. lt is to be remembered that generally where _ money is- placed for a definite term, the liability to repay commences as soon as A 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 ‘ K have to fall back upon the residuary article goveming 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- 4 ed deposits. A t IK. S. Wani V. New Akola Cotton Ginning Press, A.l.R. 1958 S.C. 437, 438, 439, Mnnamalai v. Veerappa A.l.R. 1956 S.C. 12. 15. · ‘Gouri Shankar Misra v. Bannamali Babu, l.L.R. (1979) 2 Cut. 108. A ‘Article 115, 1908 Act, article 55. 1963 Act. SI. S. Seema v. R. K. Banerjee, A.l.R. 1236 338. _· 89ru annum or LAW comm. or iuou, on me LIMITATION Aer, 1963 . M3 I (Chapter 32-Articles 6 to 55——Suits Relating to Contracts.) - 32.35. This is hardly a satisfactory situation. Once the deposit becomes Recommendation payable, ,-limitation should start running and there is need for a specific provi- sion on the subject. For these reasons, we recommend that a specific article on r the subject, to be numbered as article 22-A should be inserted in the Limitation · P Act, after article 22. It should run somewhat on the following lines :——- "22A" For money deposited under an Three When `the ntpttterea period agreement that it shall be payable Years expires." on the expiry of a stipulated period, ‘ including money of a customer in it the hands of is banker so payable. V 32.36. This takes us to article 23. which reads as under : Article 23. _ "F0r money payable to the plain- Three When the money is paid." · ` ` tiff for money paid for the defen- years. tlant. 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- Vo1un¤¤’Y l ticle should be voluntary payment or one `in lieu of the coercive process of law. °°ym°“°‘ T i 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: » · '“The payment made by the plaintiff may be purely voluntary. It need not e be the result of any legal liability, or compulsion. Nor need it operate so U as to relieve the defendant of a liabiki for the claim to reimbursement is e · 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 claimj in such cases is a matter of _ · substantive law. There is a Madras judgment° from a very distinguished Judge (Blmshyam Ayyangar, I.) to the effect that it is immaterial whether the party seeking contribution made the payment voluntarily or involuntarily. In either b _ 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. S 32.39. It can happen‘ that when the plaintiff pays the money which the de- Two causes 9 fendant is legally bound to pay, the payment will give rise to two causes of ac- ?§r“g,'f;hi tion——(i) cause of action for recovery of the money so paid by the plaintiilof 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 ]ADSOH'S Law of Contract (23rd Ed.), para 594. A “Ra·jah of Vizianagram v. Rafah Seirucherla Somasokharuraz, (1903) f.L.R. 26 Mad. 686, 693, 696 (RB,). ` “Cope Hath Munshi v. Chandra Nath Munshi, (1896) I.L_R. 21 Cal. S14. _¤ ~ *Vishram V. Punnalal, A.I.R. 1937 Nag. 152. ` _ ~ _ Maru M 0(LI st CAIND,83 . .` ‘ 114 . 39ru nsronr or LAW commu. or INDIA ou rm: LIMITATION Act. 1963 I (Chapter 32—ArticIes 6 to 55—SuitQr Relatingjto Contracts.) giving rise to a suit for damages for breach of contract.- It is for the plaintiff to ‘ i ` elect between the two. No amendment of the article is called for on this count. l Volunteer: 32.39. As to the persons who make payment in a matter in which they have m P"` ‘ no interest (volunteers), this aspect does_ not appear to have come to surface in decided cases. But Anson‘ observes : U "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 ............ Enghsh law does not favour the negorwrum géstor, the ‘oiiicious bystanderl who inter- ‘ venes, without being requested to do so, on an0ther’s beha1f." — Though this facet of the matter, namely, that the article applies·only when the plaintitfhas paid money for the defendant where he has a legal mterest 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. \ Ama, A " 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. t received by the defendant for the plaintiH"s use. The article is identical with article 62 of the Acts of 1908 and 1877. and P with article 60 of the Act of 1871. , ga., Law gn 32.41. The Supreme Court has ruled° that_ in orderto attract article 62 of ”¤°i° 2*- the Act of 1908 (present article 24), it is not necessary that at the moment of Y the receipt of money the defendant should have actually intended to receive for the use of the plaiutiif. As the same time, the article cannot apply if the · ‘ right to refund docs 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. . . Cu, 1,, i 32.42. The article in its actual operation has been held to encompass 3 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- 1'§¢.‘ (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. . `. · No nm t, 32.43. The case law on the article, extensive though it is, does not disclose amend. any need for amending the article. _ * ·'Anson’s Law of Contract (23rd Ed.), page 592. ` ` n ’Cf. sections 68 to 70, Indian Contract Act, 1872. ’Venkata Subbaraa v. State of A.P.. A,l.R. 1965 S.C. 1773. - blsharfi Kuor v. Ram Pearey, A.I.R. 1939 All. 442. . 5Ramheri V. Rohini Kama, A.I.R. 1922 Cal. 499. V . ~ °(a) Shanmughan v. Ojiia! Receiver, A.I.R. 1938 Mad. 532. ‘ (b) P. Malliah v. Brahmayya. A.I_R. 1960 A.P. 89. - ’(a) Thakur Lal V. Nathulal, A.I.R. 1964 Raj. 140. r ‘ (B) P. Malliah .v. Brahmayya, A,I.R. 1960 A.P. 89. · . ·°Karanmur1hi v, Ramanarha, A.I.R. 1946 Mad. 248 (F.B.). I st I 89TH REPORT or LAW COMMN. OF INDIA ON THB LIMITATION ACT, 1963 115 , (Chapter 32—Articles 6 toI55——Suits Relating to Contracts.) . I 32.44. This takes us to article 25 which reads as follows : Article 25. I "For money payable for interest Three When the interest becomes due." I upon money due from the defen- years. * dant to the plaintiff _ 4 The article is identical with article 63 of the Acts of 1908 and 1877, and , . with article 61 of the Act of 1871. · No change is needed in the article. I _ ` 32.45.-Article 26 reads as follows : Article 26_ i "For money payable to the plain- Three When the accounts are stated in I tilf 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 tiff 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 ii ' ’ 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 :—— I . "For money payableto the plain- Three When the accounts are stated, unless tin` 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 ‘ tin` on accounts stated between arrives." . them. No change is needed in the present article. 32t46. Article 27 reads as under: ` _ 6 27 I I "For compensation for breach of a Three When the specified time arrives or . promise to do anything at a spe- years. the contingency happens." cihed 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- I The present article seems to need no change. 32.47. Article 28 reads as follows : • Amd; 28 “On a single bond, where a day is Three The day so specihed." specified forpayment. 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., V I ‘ 32.48. Article 29 reads as follows: I Anim 29. "On a single bond, where no such Three The date of executing the bond." ` day is specified. years. ‘ I ` It is identical with article 67 of the Acts of ‘ 1908 and 1877. and with article — 66 of the Act of 1871. s s- » C No change is needed in the article. T U6 89TH REPORT OF LAW CGMMN. OF INDIA ON THE LIMITATION ACT, 1963 ‘ (Chapter 324-Articles 6 to 55——Suits Relating to Contracts.) 4 .A“i°l° 3° 32.49. Article 30 reads as under: ‘ ‘ ` "On a bond subject to a condition. Three When the condition is broken. _ years. ` It is identical with article 68 of the Acts of 1908 and 1877 and with article ei » · 67 of the Act of 1871. ‘ 32.50. Since the group or articles (28, and 30) deals with limitation for ` (bond. suits based on a bond, the use of the expression "single b0nd" occurring in arti- cles 28 and 29 needs some comment. The simple definition of "single bond" 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,1 while discussing "single bond”, to fall back on Shakes- peare and quote from "Merchant of Venice" :“ I _ "Go with me to a notary, seal me there Your single bond, and, in as merry I I ‘ . sport. In such ae place, such sum or sums as are Express’d in the condition, c let the forfeit Be ............... . ........... " A C ‘ l Halsbury comments that such instruments have become rare and the term · "single b0nd" acquired various meanings; including a bond given by one obligor _ as distinguished from one given by two or more. Case law _ _ _ as to 32.51. Application of articles 28, 29 or 30 would depend upon the terms and i 1 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 Q . . at a specified time or upon the happening of a speciiied contingency. Certain con- . Hict has emerged when the article is applied to breaches arising out of the bonds. - A 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 ` V 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- ; 7 lier one of the same High Court}' 1 ( 32.52. Liabilities of the principal and snrety"’ and computation of the period _ of limitation based on a promissory note," have also given rise to some contiicting . . decisions. - s §;‘,,d_ 32.53. However the conflict regarding the application of these articles to the U facts of a particular case turns more on the construction to be put on the particular ‘Ha1sbury’s Laws-of England (4th Edition), para 1386. . ”Merchant of Venice, Act I, scene 3, lines 146 ct sg, “Balakrishrtudu v. Narayanaswumi, A.].R. 1914.M 4, at page 6. l , · ‘Hari Lal v. Thamrmm Lal, A.I.R. 1923 Ouclh 19. . ’ “Namin Das V. Manrwo Lal, A.l_R. 1935 All. 405. - ”Ramiah v. Sankmunarayanu, A.I.R, 1958 Ker; 246. ’Gauri Shankar v. Surju, (1881) I.L.R. 3 All. 276, 279 (D_B.). . · , Bseerharamuyyar v. Muwisami, A.I.R. 1919 Mad. 462. _ · ’Sumyya V. Tirumalandlum Bapirauu, A.I.R. 1916 486. _ A 1'Charu Chandra v. Faithful, A.I.R. 19i9 Cal. 636; c — · usamanath Raju Ramamurty, A.I.R. 1957 Orima 106. · 89m neroxr or LAW comm. or INDIA ON rms r.11vnrAr1oN Aer, 1963 117 ‘ (Chapter 32»~Articles 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 I these points. 32.54. Article 31 reads as under:- Ankle 31. — "On a—bi1l of exchange or pro- Three When the bill or note falls due". · p misory note payable at a iixed years time after date. _ . p I 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_bil1 of exchange payable Three When the bill is prcsented." . at sight, or after sight, but years — \ not at a Hxed time. It is identical with article 70 of the Acts of 1908 and 1877. _ Article 69 of the Act of 1871 read as under :— - . "0n a bill of exchange payable Three ,When the bill is presented." ‘ at or after sight. years . No change is needed in the article. - - 32.56. Article 33 reads as under:—— ` Ani lc ,33 ' * C . "0n 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 ofthe Act of 1871. I No change is needed in the article. E 32.57. Article 34 reads as, under:- Amd: 34 ’ `_ "On a bill of exchange or pro- Three When the fixed tin1e expircs." missory note payablelat a iixed years. , time after sight or after de- ` . A mand. V It is identical with article 72 of the Acts of 1908 and 1877, and with article . 71- of the Act of 1871. , p No change is needed in the article. _ » _ ` J 32.58. Article 35 reads as under:—— ` _ Article 35 A "On a bill ofexehange of promi- Three The date of the bill or note.’° · . ssory note payable on demand years. “ ' andlnot aceoimpanied 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 A p 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 the technical meaning of "on demand"} — A . *67, Rowe v, Yoimg, (1820) 2 Brod & B. 165, 180;»21 RJR. 91. ` 118 89TH REPORT or LAW coMMN. OF INDIA ON THE LIMITATION ACT, 1963 ` . (Chapter 32——ArticIcs 6 Lo 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) 'camc 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 s 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 A i i of article 35 has not presented any diiliculty and we recommend no change l e therein. ‘ ` Amd. 36_ 32.60. Article 36 reads as under :—— I°"°d°°t°ry' "On a promissory note or bond Three The expiration of the mst term · _ payable by instalments. , years ` of payment as-to the part then _ payable; and for the other parts, the expiration of the respective t 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 theiwelfare of the oppressed villagers ` State Acts and landless labourers, the Legislature has stepped in to relieve the borrower Q;" i$‘;b';;Ef1;ss_ 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, s 1955, which defines a "debt’? as including even a decree or order of a court. i A Section 3 of the Act provides that no suit for the recoveryof a debt shall be / r 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. ` 4 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 instalments by 36 of the Limitation Act could apply to cases where the debt had been made mm'- payable in instalments as a result of statute. This controversy was`resolved, as regards the Madras High Court, by the case of Bichal Naidu v. Muthuramanlirt- germ} As was observed in another case‘ : ` "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, h it is reasonable interpretation to hold that each instalment will fumish _ i —_ *Nar0ttamdas v. Chitta, A.I.R. 1939 Bomi 464, 465. V . 2Narsingh Misra v. Lalji Misra, (1901) I.L.R. 23 All. 206, 208, 209. _ 3R00p Kishore Seth v. State of U.P., 1978 A.W.C. 162, referred to in (1978) Yearly - i ' Digcfhighhirztizisé Muthuramalingam I.LiR;(1- i ¢Mad.r1144. A A i ` '*G0paI Udayar Mangala Udayar: (1961174%. 601. - A · . 89r1-1 aaronr or LAW comm. or INDIA on rm; LIMITATION ACT, 1963 ‘ ~ U9 (Chapter 32—Articlcs 6 to 55-Suits Relating t0` 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 owing toNo change statutory intervention, the original contract is not the only document to be_ scanned°°°d$d‘ for on identiticationof the cause of action. In determining the nature of the! t 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 : a Article 37- “ _ A Introductory. · On a promissory note or bond Three' When the default is made, unless payable by instalments, which years. where the payee or obligee waives provides that, if default be the benefit of the provision and made in payment of one or then when fresh default is made more instalments, the whole in respect of which there is no shall 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- 4 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}-‘ ' t 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 comic; 33 article as detailed .above, certain amount of conflict did arise in the applicadongcgilsggds - of this article to practical situations. It has been held by the Patna High Court‘ ` 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, a different view has been taken by a single· Judge of the ( Madras High Courtf holding that the creditotyin 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 · ·‘** *Sarat Lakslti v. Narendra, (1928) 33 C_W.N. 250; A.I.R. 1929 Cal, 292. ’Hurr0path v. Mahemolab Moolih, (1876) I.L.R. 1 Bom_ 125. ’Ahmed Ali v. Haiiztz (1881) I.L.R. 2 A11. 514.* ‘ *Law Commission of India, 3rd Report (Lim§tion Act, 1908) page 36 para 92. ‘G0kul Mahtan v. Sheoprasad, A.I.R. 1939 Pat.’j433, 442, I.L.R. ·18 Pat 459 (F.B.). 'Ayyathurai v. Ibramsa Rowtlzar, A.I.R. 1949 Mad. 592, paragraph 4-5. 120 , 89m REPORT or LA‘vV comm. or mms ON me Lnvnmrron Acr, 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 A 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 tiled 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 prescribedby 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 A 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 ipay 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 7 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. . ' Ng Chmn, ‘ 32.68. It seems that the applicability of article 37 to a particular case de- _ N°‘d‘d· 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 1iberty” may, for example, create an option. while more stringent words may rule out an option. Waiver, again, isa 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 I Courts, involving different facts situations}-5 In this position, no amendment is recommended in the article. . 32.69. This takes us to article 38. Article`8 reads as under : A”i°l° $8- "0n a promissory note given by Three years. The date of the delivery to the Y the maker to a third person to payee." be delivered to the payee after a certain event should happen. e It is identical with article 76 of Acts of 1908 and 1877. _ Article 76 of the Act of 1871 read as under: » A "0n 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. ‘ t No change. is needed in the article. Uiochuppan v. Palmltmd Corporation, A.I.R. 1977 Ker. 201. , _ ;Deviddas v. Parma Gokalia, A.1.R. 1§9 M.P. 413, 414. 7 Ayudlua v. Kumul, I.L.R. 30 All. 123, 125. ‘M0}run Lal V. Tika Ram, l_L.R. 41 All 104, 106. _ ‘LaIra Prasad v. Gaiadhar, A.I.R. 235~241. Rqm maportr or LATV commu. or INDIA oN THE LIMITATION Aer, 1963 121 (Chapter 32 —~Arric/es 6 to 55: Suits»Re/ating to Contracts.) A / 32.70. Article. 39 reads as under:— , Aiiicie 39_ “On a dishonoured foreign bill Three years. When the notice is given." where protest has been made V "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§bc·en;made . V and notice given. i 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. V , 32.71. Article 40 reads as under:— · Aiiicie 40. A V "By the payee against the drawer. Three years. The date ofthe 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. A - 32.72. Article 41 readsas under :— Aiiicie 4i_ i "By the acceptor ofan 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:-— "Bv the acceptor of an accommo— Three years. When the acceptor pays the dation-bill against the drawer. amotmt." _ No change is neededin the article. i 32.73. Article 42 reads as under :~~— V Articic "Bya surety against the principal Three years. When the surety pays the credi- debtor. . tor." c It is identical with article 81 of the Acts of 1908 and 1877, and with article I 1 82 of the Act of 1871. 32.74. A/A resume of the case law under this article shows that while diife- Case iew_ 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_ the surety bond. the wording · of the article. alone and by itself, has not given rise to any serious difference of opinionand hence no textual change is recommended in the article. _ 32.75. We n`ow proceed to article 43. lt reads as under:— Anim 43 "By a. surety against a co—surety. Three years. When the surety pays anything V A in excess. V It is dentical with article 82 of the Acts of ,1908 and 1877. and with article 83 ofthe Act of 1871. _ V A c No change is needed in the article. 17-14 M cf ILJ&CA/ND]83 1 .122 ` 89`1'H nisronr or mw coMMN. or mma on rms LIMITATION Acr, 1963 A (Clmpiw 3299 Ai·1it·los 6 I0 55: Suits Relating to Contracts.) A Aniclp 44. 32.76. Article 44 reads as under :—— . · _ · - "(a) On a policy of insurance Three years. The date of the death of the , when the sum insured is paya deceased, or where the claim ble after proof ofthe death has on the policy is denied, either been given to or received bythe partly or wholly, the date of insurers. _ such denial." "fb) On apolicyof insurancewhen Three years. The _date of the occurrence ' · the suminsuredis payable after · causing the loss, or where the proof of the loss has been given claim on the policy is dented, V tc or received by the insurers. either partly or wholly, the date of such denial? , g Article 86 ofthe Act og l877,rcad as under:~— "(a) Onapolicyofinsurancewhen Thine years. The date of the deaih cf the the sum insured is payable after deceased. , proof of the death has been _ · . given to or received by the in- surers. ` A "(b) On a policy of insurance Three years. The date of the occurrence caus- — whenthe suminsuredispayabie ing the loss." , I after proof ofthe loss has been given to or received by the insu- A _ rers. _ l Article 86 of the Act of 1877 read as under:- . ` ` "On a policy of insurance when Three years. When proof of theideath or loss the stun assured is payable ‘ is given or received to or by the , s V immediately after proof of the insurers, whether by or from death or losshas been given tc the plaintiff or any other per- , or received by the insurers. son." i This was identical with article 88 of the Act of 1871. i 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_ "wl1en 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 A 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. . · i The article needs no change. Amcie 45_ 32.77. Article 45 reads as under :— ly ’ A "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 chan-ge. ” 89Ti-r REPORT or LAW COMMN. OF INDIA ON THE 1.1M1TATi0N ACT, 1963 123 . (Chapter 32 eArticles 6 10 55 ; Suits Re/ating ro Contracts.) l 32.78. Article 46 reads as under z--- Article 46-{awry "Un‘der the Ind-ian Succession Three years. The date of the payment or dis- _ Act, 1925 (XXXlX of 1925), I 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- . slstently remained the same except that the Repealing and Amending Act, 1930 substituted the words "lndian 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. · l 32.79. Article 47 reads as under 1 Article 47 I "Formoneypaid upon anexisting Three years. The date ot` the i`ailure." l consideration which 2 fterwards fails. V _ 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 Reportl on the Act of 1908, recommended a _ _ I u proper placement of the article under the category of contracts, and this recom- ” mendation has been accepted. _ I 32.80. Though the article has not evoked any controversy in its application, Cvniliqt a solitary judgment of the Judicial Commissionerz, Oudh, held that when the Eiilxngf plaintiffs were in possession of some portion of the property transferred to Qongigcrativn them by the defendant, it would not amount to "failure—of existing consideration,” p`;,,_°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 g 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: y , _ ` "I can ind no authority for such a proposition and I am not prepared to I accept as there is no reason why the words ‘an existing eonsideratiorf in article 97 should be read as meaning ‘the whole consideration for the con- tract’.” _ V I To the same eileet is a Punjab case? I \ *Law Commission of India. 3rd Report (Limitation Act, 1908), page 38, para 101. *’Kar·im Bux and another v. Abdul Wahid Khan,` A.I.R. 1924 Oudh 377. — _ “Bupu v. Kashiram. A.I.R. 1929 Bom. 36l. y . 5Meem1kshi V. Krishna Royar, A.l.R. 1917 Mad. 296. . ` ‘Gillu Tcekan V. Damodur Dass, A.l.R. 1972 Ptm}. 23. I 1 I 124 89ru iuzronr or mw comin. or mom on me LlM1l.\'l’I()N Aer. 1963 (C/mptcr 32 -r%»* Artic/cs 6 to 55: Suits Relating to Contracts.) · glcgdw 32.81. ln ,1his position. no clarihcatory ainentlnient of the article is CHUCU A for. A¤i¢§ 32.82. Article 48 runs as under :~— ` 4 “F0r contribution by a party who Three years. The date of the payment in excess has paid the whole- or more than of the pEaintii1"s own share." his share of the amount due · ‘ under a joint decree. or by a . * ~ I sharer in a joint estate who has ` ‘ paid the whole or more than his » 4 . share of the amount of revenue . due from himself and his co- 5 · sharers. \ . lt corresponds to article 99 of the Acts of 1908. 1877. and to article 100 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 » A needed in the article. . Article 49. 32.83. Article 49 reacts as under :~~ T “By a co-trustee to enforce Three years. When the right totcontributicn against the estate of a deceased accrues." V , 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. Article 50. 32.84. Article 50 reads as under :— V i ~ "By the manager of aj joint estate Three years. The date of the payment." of an undivided fz- mily for con- trlbution, in respect of a pay- _ ment made by him on account T . ` of the estate. g J It is identical with article 107 of the Acts of 1908 and 1877. _ .. ln the Act ot 1871. article I07 read as iunder:»— _ "By a Hindu Manager of a joint Threeyears. The date ot` the payment." · estate for contribution in res- . ` pect of a payment made by him . on account of the estate. i ` · 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 ditlerentrulc obtain when a manager of a joint estate is a Muhammadan and not a Hindu? It is well known that Muhammadans in · t . Lower Bengal recognise the joint family system almost as much as the " , Hindus." ' i I i When the variegated nuances ol 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 thc article, and the article V without the word "Hindu” appeared as article 107 of the Act of 1877. This is_ _ tm present position also. 1 ‘. x ___________________________ i'Mr. O. N. Mitter. Government Plcader. Dacca. Letter No. I. dated 2nd March 1877, ° National Archieves File 1877, Paper No. 1, page 3. · 89TH REPORT or LAW comm. or iNDiA ON ima LlMl'lA'I`l(JN ACT, 1963 125 (C/iapter 32- -- Artic/c·s 6 to 55: Suits Re/ming to Co1zri·ac1.r,) 32.86. As the article has not given risc to any rcccnt controversies. no change Change not l . is recommended therein. "°°d°d` 32.87. Article 51 reads as under:--- Article Sl. "For the profits of immovable Three years. When the profits are rcceivcd." . property belonging to the plain- tiff which have been wrongfully . received by the defendant. It is identical with article 109 of the Act of 1908. • Article 109 of the Act o1` 1877 differed in some particulars and read as · , under:—— "For the profits of iiiiiliovablc `l hrce years. When the profits are received. property belonging to thc or where the platittiff has been plaintiff which have been . dispossesscd by a dccrce after- _ wrongfully received bythe de- wards set aside on appeal; , fendant. · T when he recovers ossession." . l _ P Article 109 of the Act of 1871 was as under:— i "For the profits of immovable Three years. When the profits are received, _ Y property belonging to the plain- or where the plaintiff has been tiff wrongfully received by the dispossessed by a decree after- . defendant. wards set aside on appeal, the date of the decree of the _ ` appellate court." /`· · ’ 32.88. Cases of wrongful dispossession of property and recovery of profits Classification- · arising out of that property wronfully received by the defendant can broadly be pmmscffsngf y Cl8.SSlECd Utldcf two types: . ` fully received. (a) The hrst is the case of the rank trcspasscr, against whom the rightful ` owner files al suit for recovery of possession and profits wrongfully re- _ ceived by the defendant. ln such a case no previous litigation is involved and no problems would present themselves, because the real owner _ c would ordinarily couple a prayer for mcsne 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 thc 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. ~ j · In such a case. the possession,and receipt of profits would have been · 4 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 situationl merits detailed discussion. lt would be interest- comments from ing to take a stock of the comments which were received when the draft bill ofC0€3“}Ldi:f’f°‘ 1871 leading to the Act. was circulated Mr. N. H. Thomson? Esq. referred Calcutta. to some High Court judgtnents*‘ and observed : . C lParagraph 32.88 fb) supra. _ `*’Of`liciating First Judge, Small Causes (`ourt _Calcutta. Letter dated 19th December, · 1870} Nationa}, Archives~File 1871, Paper No. l. _ Sta) Jar curun v. Rance A.r/mtu:]/1 Kaur, 5 W.R. 125. . ‘· ‘ (b) MGS/100k Ali Kliun V. Jowala Buklis, 1.L.R_ 2 All. 290. . · _ 126 i 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 c (Chapler 32-- »·Articlcs 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- I i ed, by a decree of court afterwards set aside on appeal." Restinnion. { 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. C_ommenting on this omission, the Mysore High Courf after comparing the phraseology 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." l _This reasoning has been adopted by thcpAllal1abad3 and Andhra Pradesh‘ . High Courts, ’ , . 32.91. Earlier, the High Courts ol` Lahore‘, Allahabad" and Bombay’ had s t held otherwise. The change inthe phraseology of the third colunm was noticed by the Madras High Court*: ‘ { _ "The reason for omission was probably the change which section ,144, I clause (2), C.P.C. 1908 introduced, as a separate suit for recovery of such ` profits was barred by that section." supreme Coun 32.92. The Supreme" Court has since held that an application for restitu- iudgmqnt ¤¤¥¢<> tion under section 144, C.P.C. is an application for execution of a decree and r°sm`m°°' is therefore govemed by article _182, Limitation Act, 1908 (present article 136) . —and not by article 181 of the Limitation Act, 1908 (present article l37)—a residuary article of limitation for applications. This position needs no change. · 32.93. The Calcutta High Court"' has held that the true test l`or 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 i · who could sue for mesne profits for the period from 1913 to 1918 only on 22nd A · 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 Allahabud ` 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 l Act) and that the plaintiffs are not entitled to get a decree for mesne profits for more than three years prior to the date of the suit: l` ‘ 1Para‘32.87 supra. 4 ‘ ‘ 2Bulappa v. Waman, A.1.R. 1962 Mys. 235, 237. ` "Ram Krishna Kapoor v_ Be/mri Lal, A.l,R.’1963 All. 44. . ’ ‘ *Venkatu Ramanayya v. Sirrgayya, A.I.R. 1967 A;P. 78. · ` ' ` 5Basheshar Das v. Diwan C/rand, A.l.R. 1933 Lah. 615. “Ubuid—UIlah Khan v. Abdul Jalil Khqn. A.l.R. 1937 A11. 481. 7DullubhI>hai Hansji V. Gu/alvbhai M0rarji_ A.l.R. 1938 Born. 158. SRunyaswumi v. A/aguyummu/, A.l.R. l9l5 Mad. 1133. ”Ma/iijibhui V. Mdllllllltll, A.1.R. 1965 S.C. 1477. ’ 1"Dwijundra Nurain Roy v. Joges Chandra Dc, A. LR. 1924 Cal. 600. ’ 1*Ram Cliamn Sahu V. Mata Prasad, (1927) I.L.R. 49 All. 565, 573. _ . 89TH REPORT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 127 - (Clmpirr 32 Articles 6 10 55: Suits Relating tn Comrmms.) _ "It would be dangerous to lay down generally 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 l, legislature? 32.95. "Their Lordships of the Privy Council in the case of Soni Ram v. Kanihaiya Lal} 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 p 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?. -· Q , i . 32.96. The Calcutta High Court* ruled in I908 that the words "when the pro- No chang 35 ` fits are received" mean "when the profits are actually reoeived". As the point hasgLi;‘:*"i“$ 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 themofussil relate starring to agricultural property and the point of time _from which limitation should belfgfdlhc ‘ deemed to be running (in regard to mesne pronts of agricultural land) became a agricuttural matter of controversy. Unlike the occupant of a tenement or a building (the rentl“l‘d· » 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 Distri·ct 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. ln 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." A I "Mr. W. J. Money. Oliiciating Judge of Maimansingh, said the clause is very generally worded 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’f, 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." ` - 1S0ni Ram v. Kanithaiyu Lal, ll9I3) I.L.R. 35 All_ 227, 237. [R»C.). Weary Mohan Roy v. Khclaram Sarkar, ( 1908) I.L.R. 35 Cal. 996. _ 128 89rH aaroar or L.-\\V comm. or mom on rm; uMtr.trro;~1 Aer. 1963 (Clmp!r·r 32 .»frrfr·l4·.v 6 m 55 : Suits Reiming I0 (`mz/mers.) . » 32.98. "Mr. Charles D. Field} a practising Barrister of Calcutta, comment- ` ed in 1877 as under: _ I "I think the time in the third column ought to be, in respect of each / , year’s profits, theclose of the year in which they were collected. It would be ' p extremely inconvenient to count the time for each instalmentof profits re- / ceived on the gale days within the year." · The Judicial Commissioner, Central Provinces also wrote in the same · ’ breath: X "Profits (as for example, rents from the ryots) might be received in _ small sums and on various dates. and it wouldcbe a matter of no small diffi- V 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." ~ h ' e e 32.99. The Nagpur Judicial Commissioners Court’ held that the appropria- tion of crops commences from thc 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, l920. But earlier the same court. while dealing with a ' case“ under article 109 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. gzmltscggpg . 32.100. For reasons not appearing from the Archives file, no attempt was ' E cOmmem__ made to pin—point the starting point of limitation with any exactitude. The pro- · h0w_f&f they blems posed in the comments were two-fold : the first was, whether the article s`miw°'» applied at all to the cases of mesne profits and second, whether the starting point cof limitation should be taken to coincide with the actual cutting of the crops. ‘ _ " (i)-As regards the first point (applicability to mesne profits), it can be said A that the definition of "mesue profits" in section 2(12) of the Code of Civil Proce- · dure, 1908 and the elaborate manner in which section 144Aof 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} I · . c (ii) Coming to the second question (starting point) raised in 1877, it appears l ~ 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 clay of the year, (such as the end I of the agricultural year under the Land Revenue Codes}, as the starting point of limitation. lt 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 thc 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, 1977. National Archives .FiIe IR77, Paper S, page 9/ ’Na¢hula·sa v. shrmkermz. Ain. 1924 Nag. 87. _ *Gan·pct‘rw0 V. Inngaia._A.L.R. 1914 Nag 65. · ‘ ‘ · . "Mahijibhai V. Patel Manhlmi, A.l.R. 1965 S.C. 1477.* ` 89r1-1 ruzronr or 1..xw comm. or morn ON me uM1rAr1oN Aer, 1963 p _ 129 7 (Chapter 32- -Artic/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. — No change needed in _ article 51. 4 32.102. Article 52 reads as under:- Article 52_ “For arrears of rent. Three years. When the arrears become due." It is identical with article 110 of the Acts of 1908, 1877 and 1871. The article needs no change. V . 32.103. Article 53 reads as under:- Article 53. "By a vendor of immovable pro- Three years. The time fixed for completing perty for personal payment of the sale, or (where the title is unpaid purchase money. accepted after the time fixed ` for completion) the date of the acceptance." " It is identical with article 11 of the Act of 1908. · ` ~ In the Act of 1877, the corresponding article was article 111. which read as 4 under:- V . ; "By a vendor of immovable pro- Three years. The time fixed for completing the perty to enforce his lien for un- sale, or (where the title is paid purchase money. . accepted after the time fixed ’ for completion) the date of the ‘ acceptance? . This was identical with article 111 of the Act of 1871. _ 32.104. The stages through which article 111 of the Act of 1871 has passedl History. A 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 t » money. The earlier position about treating the suit as based on the lien gave rise to considerable difficulties, asis apparent from the statement of objects and rea- sons annexed to the Bill? which became the Act of 1908. A“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 purchaseemoney 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., _overrulin.g Natesan v. Soundra, I.L.R. 21 Madras 141 and Avuthala v. Dayumma, I.L.R. 24 Madras 23r3." 32.105. The Draft Bill which was circulated for comments evoked two. sug- gestions. The Advocate-General, Madrass wrote :—— A ` "In article 110, in the first column, the words ‘as a personal c1aim’ may be added to make (the) meaning quite clear." Taragraph 32.103, supra, ` “National Archives File, 1908, page 6. ' 3Mr_ P. S. Sivaswamy Aiyer. Acting Advocate 'Gcneral Madras, letter dated 26th De- cember, 1907, National Archives File 1908, paper 5, page l. 18-14 Mot LJ&CAlND/83 . l 130 · 89rn aurora or LAW comm. or mma on rr-na LIMLTATION Acr, 1963 (Chapter 32·-—Artic/es 6 I0 55: Suits re/ating t0 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 ‘ gy p words as these ‘for personal payment ot unpaid purchase money’." i That is how the present emphasis on "personal payment" came to be incor- ` porated in the article. The starting I 32.106, The third column of the article does not specifically refer to the ' Egétggl , date of registration of the sale deed, probably because the draftsman 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 f A of registration of the sale deed as thc startng point, and the Patna High Court* . · has held that a suit for recovery of unpaid consideration would be time;barred _\ if not tiled within three years 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 the'eflect that time should · start running from the date when the vendor suffers some damage by the pur- A chaser’s default in not honouring promises to pay a part of the consideration Y 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 I in the deed of conveyance. _ Noichange / 32.108. In the result, no change is recommended in article 53.: _ needed. · , Article $4. 32.109. Article 54 reads as under : ` A "For specific performance of a Three years. The date fixed for the perfor- contract. ‘ mance, or, if no such date ts A fixed. when the plaintiff has . " » notice that performance is ‘ s refused? t ‘ It is identical with article 113 of the Acts of 1908`and 1877. . I Article 113 of the Act of 1871 was as under: _ A "For specific performance of a Three years. When the plaintiff has notice that contract. his right is denied". ~ \ `Ceminent on 32.110, The history given above shows that the language in 1871 was ?§-F'u`°f different. When the draft Bill of 1877 Act was circulated for comments, the ' Secretary, Legislative Department commented? "No. 113—Specific perfor:mance——‘When the plaintiff has notice tlmt l l ` his right is denied’. This is from Angell on Limitation, 5th ed., p. 73, citing 7 - _‘Chief Justice L. Jenkins letter No. 2469, dated 18th December, 1907 from Acting Registrar, Bombay National Archives File, 1908, paper 6, page 13. ` ` 2Kazim Sher v. Jarwrmr Devi (1969) B.L.J.R. 500. ’Navamanf Nadar v. Vedamanickq Nadar, A.I.R. 1*933 Mad. 424. . , *Note by the Secretary. Legrslative Department on Sir Richard Garth’s remarks (cn . the Limitation Act) dated 22-10-1876, National Archives File 1877, page 7. 89TH REPORT or LAW COMMN. OF INDIA ON me LIMITATION Acr, 1963 A 131 ' x (Chapter 32»— Articles 6 to 55; Suits relating to Contracts.) _ _ 5 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 A/the last column as to all these articles ‘or might with 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 was Arbitfaiivn a suggestion in earlier cases of the Allahabad High Court? (though not followed awards` later on)3, that an award can be equated as a "contract” and a suit ro claim specific performance on the basis of the award comes _within the purview of this article. The point has lost its practical importance, becausejin view of section 32 of the Arbitration Act, 1940, no suit can be tiled to enforce an award. · 32.112. However, eveninow it is possible to envisage certain awards saved N<>d¢%¤¤S¢ from the purview of the Arbitration Act by virtue of sections 46 and 47 of that mc c ' 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 reads~as under 1 l _ AY *1* $5- "For compensation for the breach Three years; `When the contract is broken or of any contract express or im- (where there are o successive I plied not herein specially pro- breaches) when the breach in vided for. respect of which the suit rs . 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 A tercd and not herein specially respect of which the suit 1: provided for. instituted occurs or (where the . breach is continuing,) when it , ceases. p "1l6. For compensation for the Three years. When the period of limitation breach of a contract in writing would begin to run against a suit l registered. brought on a similar contract p not registered? ~ S 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‘°“S R°P°"- __ _ ’Letter dated 19th April, 187]; National Archives File 1877, page 9. Ha) 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. tc) Sukho Bihi & rs. v. Ram Sukh Das, (1883) I.L.R. 5 A11. 263. . I _ . Va) Surat Singh & Ors. v. Umrao Singh &. Ors., A.I.R. 1922 All. 410, (b) Shea Narain v. Rani Madha, (1910) I.L.R. 23 A1l_ 285. 132 /89"Tl-I REPORT or LAW c0MMN. or INDIA ON THE LIMITATION ACT, l963 (Chapter 32~·Articles 6 t0 55: Suits re/ating to Contracts.) _ ( Chapter 33 »—Artic/es 56 to 58: Suits relating to Dccfamtimzs.) tract. This dichotomy was found unnecessary by the Law Commission which`, in its Report on the Act of 1908, recommended as rmders I . "lf simplification is desirable, as undoubtedly it is, all the above-men- . tioned articles may be omitted and a provision may be made as as 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 Z centered on the difference between the two articles. No further comments are _ needed on article 55. _ i CHAPTER 33 A · ARTICLES 56 T0 58: SUITS RELATING T0_ DECLARATIONS ‘ A¤’l¥*>1° 56· 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- 7 tifi`." _ Originally a single article 93 appeared in the Act of 1871, which ran as under:— k “T0 declare the forgery of an Three years. _The date of the 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 :—— e"To declare the forgery of an Three years. The date of the issue,_ regis- _ instrument issued, or regis- tration or attempt, whrchever tered, or attempted to be en- last happens? 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: “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 forge1y." On these comments of Chief Justice Garth, the Legislative Secretary, Arthur Hobhouse, noted:3 _ ` — A No. 93. Declaration of forgery of Does_ it not want the addition, ` . · instrument——The mere forgery Wwhrchever last happens," V of an instrument is not a cause and attempt to enforce aga•nst 7 of action, it is the issuing of the plaintiff ?" it, or the attempt to enforce it, · that is the important matter. `I think the number is rrght as rt stands. 'Law Commission, 3rd Report (Limitation Act, 1908), page 39. para l07._ - *D.O. from the Hon’ble Sir Richard Garth (Chief Justice of Calcutta High Court) to the Hon’ble Arthur Hobhouse, Q.C., dated 24th July, 1876. _ _ . A 3Noted by the Secretary Mr. Arthur Hobhouse, Legislative Department on Sir Richard y · Garthils remarks on Limitation Act dated 12-12-1876; National Archives File 1877, Paper I, _ _ 1¤¤8¤ J , ._ .- - » _ _ { " 89m iuaronr or mw comm. or INDIA on me Liriiurion Acr, 1963 . _ l33 A (C/ttiptcr 33-- Artic/cs 56 to 58: Suits Relating I0 Declarations.) 33.3. In addition to the point taken by Sir Richard Garth the draftsman g had also to consider the opinion given by the Judicial Commissioner, Central E Provinces, Nagpur, who made out a case for splitting up of article 93 into two` t 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, Col. 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. Q "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 registration 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. _ plaintif1`." 33.4. One can recapitulate that the draftsman also aware of the provisions Section 42, , of section 42 of the Specific Relief Act, 1877 which had been just passed and§l;‘f$?°Act g L hence the suggestion of the Judicial Commissioner, Nagpur, regarding declaration1877. _ » simpliciter was accepted readily. i - 33.5. As a result of that article 93 was split upcinto the following two arti- Act of 1877. l 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 plaintiff. 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 bc of interest to 11ote 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 Courtl which had interpreted old article 93 of the 1871 Act as under :—— ' · . "The time when the period begins to mn in such suits is ‘the date of the issue, registration or attempt. I should be disposed to hold that these dates were applicable 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 Takharooddeen v. Pogose, (1879) I.L.R. 4 Cal 209, 212. V i 134 89tu REPORT or 1..xw comin. or 1NmA on THE L1l\-l|"l`ATlL)N Aer, 1903 (C/mpter 33——Artic/ur 50 to 58: Suits Relating tuADcc/arations.) V time runs from thc 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, accoirding 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- tilt, the legislature apparently; thought thatrhe ought to commence the suit . as he has notice of the instrument by the issue, registration, or attempt to enforce it.”` No change 33.7. As ithe present article has not given rise to any controversies, no ““°°d‘ change is recommended. ‘ A"*i°I° 57· 33.8. Article 57 reads as under :— "T0 obtain a declaration that an Three gears. When the alleged adoption L alleged adoption isstinvalid, or becomes known to the plain- never, in]fact, took place. tifl`." This is identical with article 118 of the Acts of i908 and 1877. In theearlier Act of 1871, the corresponding provision was in article 129: _ "To establish or set aside an adop- Twelve years. L_ The date of the adoption, or tion. ~ (at the option of the plaintiff) the date ofthe 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." I 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 naturc." ` 33.10. Article 129 of thc Act of 1871 was in 1877 split into two articles, l articles 118 and 119. The expressions ‘set .aside’ and ‘estab1ish’ were also dropped and the starting point was altered. This scheme continued in the Act of 1908 and the Aet of 1963. This change of expression] is discussed in a Privy Council“ judg- ment, thus: _ ‘ . “In the Act _of 1871, as observed in the judgment in Jagadamba Chowdhra.ni’s case, the words used. had no technical meaning, and they were treated as ex- pressing popular language to which in popular reasoning the meaning which 1 prevailed could attach. ln tl1e 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 · Uagrzdamba Clizmdhmnf v_, Da-khina Mohun Roy Chrrodhri, (1886) I.L.R. 13 Cal. 308, _ `319, 320 (P.C_). . ` zlialyandappa v. Chanbasappa, 1.L.R. 48 Bombay 411, 425 (P.C.). _ Som neronr or mw comm:. or INDIA ON me LIMITATION Aer, 1963 135 l (Chapter 33-Artic/cs 56 to 58 :Suits Rc/ating to Declarations.) , the Specific Relief Act passed in the same year 1877, being Act No. l of that . -. year, whereas the Limitation Act is No. XV. _ E 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 . A I property on her death without a son may, in a suit against the adopted son, t 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 soughtkin a declaratory suit is that the » A t plaintiff should not be guilty of laches. the measure of laches being fixed by the statute as six years. · , 33.11. The alternative starting point of ‘death of adoptivc’ father in the Act 1871 Aet· of 1871 was criticised by Mr. A. B. Falconl thus :-— _ °‘“i°is°d· *t "With reference to No. 139. Mr. A. B. Falcon. ofiiciating Judge of . Rangpur. raises the question whether the time allowed should not be extend- ed to twelve years from the death of the adoptingparent; otherwise suits l might. he observes, lie to recover possession from an adopted son many { years after a suit to set aside the adoption was barred." A 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 Mitter, 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 X death of the adopting father. It need hardly ’be{ said that they must be in j existence at the date of the death of the adoptive mother or her daughter." f "The clause in column 3 is wholly insufficient to meet the necessities of the ‘ ° case. The suit should be allowed to be brought (during the life of the adop— A 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 plaintiff 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 hist _ adoption, his title as adopted son of the widow’s husband will be un- ° ‘ impeaehable. But under No. 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 t0 set aside an adoption should be expressly limited t0 declaratory, l A suizist. Inssuits to establish an adoption. the period of limitation should run _ from the denial of the adoption by the adoptive father, if the adoption took A place during his lifetime. ln other eases, 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." ll etter No. 416 dated 2nd February 1871 National Archives File 1871 paper 5. page 2l. I _ · ‘National Archives File 1877. page 19. . 3Letter dated 2nd March 1877. National Archives File 1877 Paper No. 1. page 4. ‘Emphasis added, 136 ° 89rH REPORT or LAW coMivu~1. or INDIA on me uM1rArroN Acr, 1963 (Chapter 33-9.-Articles 56 to 58; Suits Relating t0 Declarations.) · "In declaratory suits to sct 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." gggafgfion 33.13. Another point of view, expressed in 1877, as summarised by Mr. . feimptieiter-— N. H. Thomson was as follows‘ :— _ ’ doubted. _ _ "There seems to be a doubt whether a suit to set aside an adoption will lie unless consequential relief be asked, I.L.R. 1 Bombay, 248 and see L.R. ‘ 3 Ind. Ap. 72, 84." g°':d";;Q£n““ 33.14. Adoption offered a fertile ground for litigation and evoked comments ` from many quarters :- l 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 giving an option to the plaintitl. 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 theadoptive father. (where the adoption has not taken place in the lifetime of the adoptive father) the date of the adoption?* Another comment on this point {was as under:— “The adoptive mother’s death should also be added to the third _column. . 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."“ , Yet another comment was as under:-" _ _ "These sections provide for suits to obtain a declaration that an adop- e 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 party\·nevcr in point of e fact took place."‘ · gab:} mid" '· 33.15. The draft article in the Bill” that led to the Act of 1908 read: · "T0 obtain a declaration that an Six years. When the alleged adoption be- alleged adoption is invalid, or comes known to the plaintiff, · never in fact, took place. or to some person who is a . _ _ nearer reversionary heir to the " T . 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. ”Letter_ dated 22nd May 1877 from Babu Ramdas Sen for t.he members of Committee of _ . F the Murshidabad Association, National Archives File 1877 paper No. 18, page 2, ‘Letter No. 233 D.A. dated 14th May, 1877 from Mr. W. H. Rattigan, Ofliciating Gove· rnment Advocate. National Archives File 1877, paper No, 24, page 12. . " 5National Archives File, 1908 . - J 891'H REPORT or LAXV Cm.mN. or mma ON THE 1.uvuT.xT1oN ACT, 1963 ' 137 l (C`/mpter 33 Artie/es 56 to 58: Suits Relating to Der·iar0tions.) . 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 i . ` it adopts the view taken by Bhashyam .Ayyanger, J.,,in Chiruvolu v. Chira- v0lu, I.L.R. 29 Madras 390` A I In a suit to set aside _an adoption where, but for the adoption. the estate I would be in a Hindu female, remote reversioner has been held to claim through ‘ the presumptive reversioner in the following cases:—~ l ‘ Ayyadore v. Solai, I.L.R. 24 Mad. 405; Ii . i Chiruvolulv. Chiravolu, I.L.R. 29 Mad. 390 F.B; i A Harnath v. Mandil, I.L.R. 27 Cal. 379, at page 403; Srinivasa v. Hanm>mt, I.L.R. 24 Bom. 260 at page 266; ~ 1 · Siddeswar v. Sham (`hand, 23 W.R. 285 (decided- under Act IX of 1971); Mrinomovee v. Bhoobmz, 23 W.R. 42 (decided under Act XIV of l859).” 7 ` r The contrary view has been taken in the following cases:- Abinaslz v. Harinath, I.L.R. 32 Cal. 62, at page 71 ; 7 Bagwwnta v. Suk/zi, I.L.R. 22 Cal. 33, at pages 44, 45. 2, · { In the case of Chiruvolu v. Chiruvola, 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- _ f iiict therefore is limited to suits relating to adoption." . · _ 33.16. On this darft, Sir B. K. Bose, Government Advocate, Nagpurg, made gommcnt- _ , the following comment: _ Agiigggigfm _ Nagpur. ` . "The High Courts are in disagreement as to the scépe of these articles. 7 _ Whether they apply to sztits where consequential relief in the shape of , ` possession of property is asked for or to more 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." ' I ` l 33.17. Similar arguments were put by Rai Bahadur Sharat Chandra_Sat1yal.C9mm¤nt— ·Divisonal Judge. Nagpur*:——- V; R%];Qf’1'Z;ggpu¤_ . t · ` "The proposed amendment introduces a curious. state of affairs and i _ it is. that limitation will run against one. when the knowledge of the alleged _ A adoption is in another. I . N '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. _ . . - ‘1.etrer No. 2063/V. 4-i dated wth December, 1007 National Archives File 1908. Paper » ’ _ No. 2, page 7. - · 19-14 M of LI&CA/ND/83 V ` · A 138 ` 89TH REPORT OF LAW coMMN, or INDIA ON THE LIMITATION- Acr, 1963 ’ _ (C/mp/or 33- Artic/es 56 rn 58: Suits Rc/ating 10 Declarations.) , A i Declaratory suits are often availed of as a matter of precaution for . . - of e perpetuating evidence. The nearer reversionary heir may be an old man J — t 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 ff chance in his favour may be greater by r on of youth. This is after all a 4 kind of suit in which the court has a x discretion. I would word the _ amendment thus:—‘or to some person who is a nearer reversionary heir" ._ to the person to whom the adoptioh is alleged to have been made, then l 1 the plaintiff and through whom the plaintiff claims." I "I have assumed that article 117 (persent article 118) applies to decla- ratory suits wily.', But there are judicial authorities holding that it is 4 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 Bom. 260 FB. over- ruling .I.L.R. 21 Bom. 159 and I.L.R. 25 Cal. 354: l.L.R. 27 Cal. 242:- ° · I.L.R. 24 All. 195; I.L.R. 26 All. 40). r J "In a Privy Council case (I.L.R. 25 Bom. 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 subserviencyi The case came under article l2(a) of the 2nd Schedule` 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 V intended to be on this point by some contrivance in the ‘Description of Suit’ column whether this 'article applies ipurelyito declatory suits 0r . _ extends to pc.¤.se·.s.have held that an article takes care of "de facto guardian". On the otherhand, A . 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 ' l ’ '34.6. We should mention in this context that the Law Commission? in its Recomendgtion ~ or · ‘ Report on the Guardians and Wards Act, 1890, has recommended the addition. :;;°§yu.d°}t°?. in section 4(2) of that Act, of a suitable Explanation which would make it clear f¢i¢¢=f¤¤¤.» . that a de facto guardian is included within the definition of ‘guardian’ for the - v 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. . C we reiterate the recommendation made with reference to the Guardians and A Wards Act,‘ 1890. / , CHAPTER 35 _ I ARTICLES 61 T0 67: SUITS RELATING T0 IMMGVABLE PROPERTY . iw I · `35.1. Article 61 reads as under : / ‘ ` Q A¤i°l¤ 'U-Z t = "6l..By a mortgagor-— _` I " · (a) to redeem or recover posses- Thirty· When the right to redeem or to ‘ sion of immovable property years. recover possession accrues. mortgaged; ‘ A · _(b) to recover possession of im- Twelve When the transfer becomes. known ( movable property mortgaged years. to the plaintiff. e ‘ and afterwards transljerred ‘ — f by the mortgagee for a valu- able consideration; · (c) to recover surplus collections Three When the mortgagor re-enters i received by the mortgagee years. on the mortgaged property". ‘ _ ( after the mortgage has been · , _ V satisfied. ' A, This article replaced articles 105, 134 and 148 the Act of 1908; which A pfwere as follows: ` ( “ P ` \*(148.— Against a mortgagee to redeem Sixty When the right to redeem or to' ! orto recover possession of immo- years. recover possession accrues; pro- ' - vable property mortgaged. A vided that all—claims to redeem . arising under instruments of mort- 1 / A . gage of immovable propertysitua- » ` x te in Lower Burma which- had · 1 ` been executed before the iirst day _. of May, 1863, shall be governed ’ * ` by the rules of limitation in force in that State immediately before _ _ ` the same day. “134. To recover possession of immo- Twelve When the transfer becomes known lvable property conveyed or be- years. to theplaintifl`. - queathed in trust or mortgaged ._ ~ , . - and afterwards transferred by the ·‘ _ t trustee or mortgagee for a valu- _ . able consideration. . . ‘ ‘KaiIash Chandra Pradhan v. Rajani Kanta, A.I.R. 1945 Patna 298. ~ *c.f. Present article 65. _ ; - . A · _—_A 4 B 3Law Commission of India, 83rd Report (Guardians and Wards Act, 1890), Piaragraph g. I _. _ p I Vito bexcarried out with reference to the Wards =Act, 18904 I A _29e»*·l4YrifL!&CA/ND']83 · , / = · · (_ #6 , ' 89111 iuzronr or LAW comm. or INDIA ON Tue 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 i has been satisfied, to recover sur- years. the mortgaged property." . . pluscollections received by the _ mortgagee. . ` The corresponding provisions in the Act of 1877 were articles 148, 134 and · 105, respectively. ~— · 35.2. The Law Commissio recommendedlin its Report on the Act of 1908 . awk qw"' that the period of limitation o?60 years allowed for the redemption of a m011- Q gigc in article 148 of the Act of 1908 should be cut down to 12 years. on the ` . _ ' ‘ , l 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 e _ to mortgages. However, all these articles were clubbed into one article and enac- ted as article 61 in the Act of 1963, with the reduction of the period of limitation ~ ` ‘ t for redemption from 60 years to 30 years only. ’ Puim• ` 35.3. The Bombay High Court has heldi that a suit by a puisne mortgagee .°°"“'°°‘ who had not been impleaded by a prior mortgagee and who sought to enforce his mortgage rightse/against his mortgagor was governed not by article 132 of the _ Act of 1908 (now article 62) but by article 148. ’I`he 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- I sion against the prior mortgage was governedby article 132 of the Act of 1908 A (now article 62) and not by article 148 (now article *61). A puisne mortgagee is an assignee of the equity of redemption and is, therefore, entitled to redeem a V. 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 paymentfaells within article 62. §_•?¤_¤;¤i¤¤¢ 35.4. The Madras High Court has.he1d‘ bylfmaiority that article 134 of the ‘ · . °"°' _ I Act of 1908 (now article 61) did not applyto a transfer from a trustee or mort- 1 _ _ 'whére possession was not taken by ithetniénsferee. Wallis, C.J. and Coutts _ Trotter, JJ, however, dissented from the aforesaid (majority) view and held that · . the article 134 applied to a transfer froma trustee or mortgagee under which DOSS§SSi0n was not taken by the transferee. Walhs. CJ. further observed that it . not be held that the intention of the Lemslature in enacting article 134 topmake 'a provision in favour of the ccstuni quetrust or mortgagor and give ‘ . ‘ a furtherperiod than he would otherwise have had, On the contrary, the y 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 tab ‘ .ing possession under the sale or mortgage to be the starting point, nothing ‘ woulg have been easier to say so.. It had hot‘done·*so, and it was not open to ` the judiciary to effect this by taking out of thearticle nearly all the cases which - I - would therefore fall within it. , ’Law Commission of India, 3rd Report &imitation Act, 1908), paras 48-49, 129-130. ’Nagu Tukaram v. Gopal Ganesh, A.1.R, 1 3_¥Bom. 1105. ·‘ . Tegiylgriiiair liduillllgl? i AIR 1919 M d 97 · IL K 9 4ou¤a.io4o; 1054 o=.u.>. `'`` l; ._...;m°' °` ' a' 2’ ‘ `R‘ . / _ ‘ rusronr or Law commu. or mma ow rmi mérrarion sor, 1963 _ A _ ' (Chapter 35——ArticIeIr 61 to 67: Suits relating to immovable property.) However, it should be stated that most other Courts have taken that e view that article 134 (now article 61) does not apply Where possession is {lot ‘ ` transferred}-2 The Madras High Court has, in a later case} held that for the 4 application of article 6l,' it was not the intention or belief of _the mortgagee who I ¤ .— transferred the property that mattered, but the fact that. though he was a mort-_ _ gagee, he, in fact, purported to transfer absolutely to ia third party t}1e property ` covered by the mortgage in his favour. The fact of his belief that he was trans- {errmg 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- _ gperty 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‘ _1 35.6. Article 62 reads as under :—— Article 62; "62.To enforce payment of money Twelve When the money sued for becomes » A . secured by a mortgage or other- years. due". ’ ` . _ wise charged upon immovable p property. A · » . Article 132 of the Act of 1908 was as under:- - . _ . "l32. To enforce payment of money Twelve When themoney sued for becomes charged upon immovable property. years. due. _ .4 E.xpl¢matf0n:—For the purposes of this article- ‘ g (a) the allowance 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 ofritle deeds shall be deemed _ to be money charged upon immovable property."‘ _ Article 132 of the Act of l87’/"was as under: ' - *132. To. enforce payment of money Twelve What the money sued for becomes charged upon immovable property. years. duc." A ExpIon¢¤ti0n.——The allowance and fees respectively called malikhana and i ltaqqssliall, forthe purpose of this clause, be deemed to be money charged upon immovable property? E A ' I A . (Article 132 of the]Act of 1871 was in identical terms. 1. $$.7. Article 132 of the Limitation Acts of 1871, 1§77iand 1908 provided haw Commis· _ -f,or_en[orci;:3g=_payment of money charged upon nmnosgable Epmpmy, Though ’·'°” R°P°’* ‘ the article did not specifically refer to mortgages, the,Privyf Council heldi that a_-suitpn la simple mortgage bond to enforce payment.,sps_,governed by article _. 132.,111 the Report on the Act of 1908, the Law Cogimion recommended° qnepdgpent of the article to extend it specifically to The Commis- recommended deletion of clause (c) of the Expbnation to the article. . P éinuthe present Act, not merely clause (c) of the Explanation, but the entire Y Ex~planation,.has been omitted. » » I - i -_ ·} D¤·.r.,v, Hail Abdur Rahim, (1920) I.L.R. 47 Cal. @66,; . . ** ` `v. Sushila, A.1.R. 1947,.Cal. 46l_ t- ` `°D}¥¢n¤ldcshmi Ammal v. G. Anthurai, A.I.R. 1972 Mad. 186, · *`Fh6TE1¥lanati0n·does not appear in the present Act. _ . ’Vas·udeva Mudaliar »v. Srinivasa Pillai (1907) ILR 30 Mad.·*26(PC). law Commission of India; 3rd Report (Limitation Act,519(§);;qj -48 para 128. 148 4 ‘ 89m mzroar or LAW comm. or mem on me rinnrnron Aer, 1963 _ · . A V (Chapter 35~—Articles 61 to 67: Suits relating to immovable property.) No chance .· 35.8. Controversies may, in practice, arise as to the applicability of ¤°°d°d' . article to a particular case, where the exact nature of the bond may be H1 issue, but these do not necessitate any amendment of the article. t "n¤° "’ · T, 35.9. Article 63 reads as under zi- A ` · ‘ ‘ ‘ "63. By a mortgagee : g ‘ ` (a) forforeclosure. Thirty When the money secured by the _ V years. mortgage becomes due. _ (b) for possession of immovable Twelve: When the mortgagee becomes entit- , property mortgaged. years. led to possession." · _ _ The corresponding provisions in the Act of 1908 were articles 135, 146 and _ » 147, which read as under:-- . ‘ ‘$l35. Su.it instituted i11aCourt not es- Twelve When the mortgagor’s right to A tablished by Royal Charter by a years. possession determines? A mortgagee for possession of im- ' movable property mortgaged. ‘ ` ` ‘ 146. Before a Court established by Thirty When any part of the principal or ` A l Royal Charter in the exercise of years. interest was last paid on account its ordinary original civil jurisdic- _ of the mortgage debt. p tion/by a mortgagee to recover from the mortgagor the possession of immovable property mortgaged. 147. Bya mortgagee for foreclosure or Sixty When the money secured by_ the ` i p sale. years. mortgage becomes due." _ U ‘ 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 5 these terms: N ‘ _ l . ` "135.· Suitinstituted in a Court not es- Twelve When the mortgagee is first entitled _ ‘ » . tablislied by Royal Charter by years. to possession. · 4 mortgagw for possession of im- movable property mortgaged. . A 139l Like suit when the purchaser had Twelve The date of the dispossession.” l Q _ possession, but afterwards dis- years. . - possessed. » _ i _- , in C .`_ 35.10. The Law Commission, -in its Report on the Act of 1908, observed as sio¤'s Report. under on the corresponding article of the Act of 1908* : V U A "125. Before the decision of the Pirvy{Counci1 in Vasudeva v. Srimlvas·a' g the view was taken that a suit by a mortgagee for sale of the property was ,f , . . governed by article 147 which gives a period of 60 years for foreclosure or { t ` , ` 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- - » lish mortgage under which the mortgagee has the alternative of either bring- * apsuit for foreclosure or for sale amdgthat the proper article to apply in ‘ the case of ag 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 li? 1Law Commission of india, 3rd Report (Limitation Act, 1908) piges 47-48, para 125- ·*Vas·udeva;y. srinivara, (1907) LL.R. Medi 433, 434. (PC). i i ` 89rn savour or LAW commu. or mom or THE LIMITATION ACT, 1963 »»14·9 . _ . _ {Chapter ,35-—Articles 61 to 67: Suits relating to immovable property.) A · E. 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 Charterythe 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 ease, time begins to run when the mortgagor’s right to possession determines T _ 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 A the property, either from the date of mortgage if possession is not delivered or, subseque_ntly, if having been put in possession. his possession is disturb- ed. It would be suliicient, 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? _ "_l27. 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- ‘ sion applies only to such mortgages, should be deleted. lt is, however, 4 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 _ `Wl1Blil the money secured by the mortgage becomes due, as in the ease of a ° suit for sa1e." - _ 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- 838%-, 7 ` ( 35.11. After the passing of the Act of 1963, no controversyhas arisen justi- No change . fying a change in the.Act. » "'°d°d- _ _ { 35.12, This takes us to article 64, which reads as under 1-- Article 64 "64.For possession ofimmovable pro- Twelve The date of dispossession." perty based. on previous posses- years. _ - sion and not on title, when the · _ plaintiff while in possession of the ‘ Y property has been dispossessed. r _ > i Article 142 of the Act of 1908 was as under: I "142. For possession of immovable Twelve The date of dispossession or dis- I property when the piaintiiil while years. contirruanee." , . in possession of the property, has . . been dispossessed or has discon· e . . tinued the possession. g _ This was identical with article 142 of the Act of 1877 and article 143 of ` ·the.Act of 1871. » p A - . p TSG , 89TH REPORT or LAW Comm. or rNorA ori una LrMrrAT10N ACT, 1963 . . (Chapter 35-Articles 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 Reportz on the Act of 1908. ( __This article needs no change. .` · - I Article 65.L 35.13. Article 65 reads as under 2-- . · ( "65. For possession of immovable Twelve When the possession of the defen- if , property or any interest therein years: dant becomes adverse to the plain- . .~ based on title. tiff. · Explamrli0n—.——l·`or the purposes of this article- ( ` (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 remainderman. revisioner _ _ or devisec, as the case may be, falls (into possession; , (b) where the suit is by a Hindu or Muslim entitled to the possession of ( 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-. tor who was out of possession? r ( . " This article has replaced article 144 of the Act of 1908, which was as under:- ( . ( ‘ “l44. For possession of immovable Twelve When the possession of the defen- property or any interest therein years. dant becomes adverse tothe plain- not hereby otherwise specially A tiif."- · provided for. ` _ _ · This was identical with article 144 of the Act of 1877; V A- Article 145 of the Act of 1871 was as under: A 4 ( J "145. For possession of immovable Twelve When the possession of the defen- property or any interest therein years. dent, or of some person through not hereby otherwise specially whom he claims, became adverse provided for. to the plaintiH;." — The humour _ 35.14. The doctrine of acquision of title by adverse possession is deeply of the illeanl rooted in- our system of jurisprudence. The doctrine is derived from the Roman °°°°’°$"‘ Law concept of usucapio and lvngi tempvrisswamcriptio, but in Roman-Law, · there was an added requirement that the possession must be bona tide and for _ "justacausa". English law has not insisted on the requirement of jusm cause. ( ‘ r - , The U.K. Law Reform Committees 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 35.17, infra. _, ` ( , *Law Commission of India, 3rd Report (Limitathm·A¢t), D2B¢S 49-52. ' ¤Law Reform Committee, 14th Report (on aeqnhition of easements and proiits by" ‘ prescription), cmnd. 3100, page 12, para 36. (- ( i 89m ruzronr or LAW comm. or INDIA oN/‘nrs LIMITATION Acr, 1963 ‘ J5} (Chapter 35—Articles 6I to_67: Suits relating to immovable property.) . ln 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 not able to extinguish the title of a registered proprietor.'-: ~· 35.151 This,ihowever, is not the position in England. A person with evil Argument of _ can usurp somebody else’s land, even after forcibly evicting him, and ml°S°°°‘ _ . i still perfect his title by adverse possession. On the other hand, if he enters into possession in a pom: tide 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 .1 .“. i (as he then was), he had interjected as under: A "Y0u are worse off when you enter 1awfully" _ ` n 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- Q¤¢¤ti¤¤¤ _ tion of this doctrine, one writer* poses two questions: A f§::é;:_t° · (I) Has "squatter’s title" to land, with its undertones of "1and-stea1ing", any place in a civilised society, particularly a society committed ultimately to univer- sal state registration of title to land? (2) If, "squatter’s title" can still perform a — useful, indeed a necessary, function, ought it to require that the "squatter" ‘ should have a particular intention or motive before allowing him to acquire title? -—However, after an exhaustive discussion of athe merits, the same writer proposes the following answers to the questions so posed: ‘ _ V (1) Acquisition of title by adverse possession is. not immoral and can have inlluence on the social policy that security should be given to the long * pogsessor ofland. . ‘ p (2)'The motive, intention or belief of the allegedly adverse possessor is im- . ( material. The deliberate evicter and the mistaken encroscher should both be · - _ able to acquire title. Long-continued possession should tpso facto confer title. . unless it is proved that that possession began and continued under a valid tran- r saction with_ the true owner, i.e. that the possession was purely derivative. ad- ` possession. But if the defendant trespasser is a person who wishes to oust V the plaiiitiif who was himself a prior trespasser or a person who did not come like possession as a trespasser but continued to hold it as such, in order to Mable the plaintiff to continue his wrongful possession without disturbance. law must undoubtedly step in and give relief to the plaintiff. As against the tilue owner, a. person who is in possession for a length ·of time short of the sltattitory 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. 4 ` 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 posscssory title and the owner of the property should not lose his right to it the. defendant in possession is able to establish adverse possession? lhdiclmel VJ. "Goodrnan," Adverse Possession, Morality and Motive (1970) 33 Modern Law Review 281, 282. · ` ”Cf. .1. S. Williams, "'I`itle by Limitation in a registered conveyancing system" (1968) 6 Law Rev. 69. , I _ . . yes v. Meer, (1957) 1 Ch. 475, 481 : (1957) 2 All ER. 577; See Michael Goodman. 3Pcs¤ssion—-Morality and Motive" (1970) 33 Modem law Rev. 281. 285, 286 V ifichnei I, "Adverse Possession—Morality and l•fotive’? (1970) 33 Modem (Q us) 288, (Answers). ; Ia; , _ _ _ 152 · 89111 tuaronr or mw comm:. or mont ON rm: umrrartou Acr, 1963 ' ‘ T . (Chapter 35——Ar!icle.s· 6/ to 67: Suits Relating to Immavable Property.) Lew Cem- 35.17. Reverting to the text of article 65, the articles relating to pbssession ' W S 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 1 i 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 casei 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 ` _ ( . plaintiff, but to cases where the plaintii had been out of possession and another · . person was in possession for the- prescribed time. The Cemmission then made P _ 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 plaintiff 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 plaintiffs ' prior possession no doubt entitles him to protection against a trespusscr. V ._ _' · Q though not against the true owner. The true owner’s entry. would be a` rightful entry and would interrupt. e ‘ Law Com- 35.18. For these reasons, the Law Commission (in that Report) recom- ` _ mended a re-draft of article 142 as under:- ° t tticnm . "For possession of immovable property based on possessory title ‘ where the plaintiff while in possession of the property has been dispossep- . sed—·—12 years from the date of dispossession." . . _ A new article was to govern suits- based on title—-the 12 years period to be , i counted from the time when possession becomes adverse. · _ Nanny of me 4 35.19. The amended article, though phrased somewhat differently has not U un given rise to any serious controversy and the Supreme Court. in a recent judg- V I L ment on the subject. has succintly summarised the law on adverse possession or —‘ ; , hostile title thus:“ ‘ T ` E — . , “Adversc possession or hostile title must be established by'a consistent _ e_ ‘ course of conduct and it cannot- be shown by a stray or sporadic act . 4 ‘ possession. However, all that the law requires is that the possession must . t be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge ~ of the owner. Such a requirement may be 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 4 . 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 the 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 i complete-after thirty years." { V _ . 131 g.a;6Conimission of India, 3rd Report (Limitation Act, 1908), pages 49 to 52, C I r ·- Mgemiy Company v. Shen (1888) 13 Arc. 793 (1*1;.). . - ’ . *Kqshitish Chandra Bose v. Commiqidimergpf Iitmchi *(l981) 2 S.C.C. 103, _ - I 89rn REPORT-OF mw comm. or mms on run Ltmirnion Aer, 1963 _ _ 15$ · ` · (Chapter 35—rArtitles 61 to 67: Suits Re/ating Immcvable Property) ‘i A 35.20. \In England, certain developments in the theory of adverse possession iycdctepnients . have taken place as regards proicctingthe real owner of the land (who has. lfI‘,égi§;:”l, _ j reserved the same for development or some specific purpose in mind, to be exe- `r‘ cuted at a future date). In Wallisfs case', Lord Denning M.R. observed as Q · ` Q undersz V ‘ .=i "Possession by itself is not enough to give a title. It must be adverse · e , 7 possession. The true owner must have been idispossessed and another must .9 _ have discontinued possession or have been dispossessed and another must . have taken it adversely to him. There must be something in the nature of V an ouster of the true owner by the wrongful possessor." . 1 _ 35.21. The Law Reform Committee° in England (after some discussion) concluded as under, on the subject: ‘ A- i Views O; · "There has now apparently been established a quite; general doctrine of an I 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 for such an implication. The effect of . K implying such a licence is to prevent time runningir; favour of the adverse .· c 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. Wykoham- Vi t Martine). IT amounts. in effect, to a judicial repeal ofthe statute. The phiio- sophy behind this approach has been expressed by Lord Denning M.R., as follows; · ` ‘ " _ "The(reason behind the doctrine is beeause it does] not lie in that other · persorfs 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 traditionad approach recently restated by r _ Sir John Ponnycuick, delivering the judgment of the Court of Appeal in Trelvar _ [ v. Nute‘ in which he said: Y i ( "........i...If a squatter takes possession of landbelonging to another and __ . ,7 remains in_ possession for twelve years to the exclusion of the. owner, that re_pre- _ · sents adverse possession and accordingly at the*cnd_ oi, twelve years the title — 'of the owner is extinguished. That is the plain meuting of the statutory provi- sions ............ ". _ ~ I. _ — _ " _ 35.22. The’Law Reform Committee further considered it clear that the two , approaches could not be reconciled. It coneludcdas under: · 1 l "We consider that the law should be restored to me law as statcdin Tfelvatjv. 2 Nutr-? There can,—in" our view. be no/iustincation fog} implying a licence, or . V other similar position. in any case where there is no K, ctual 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 'WaIIi.x`s Caytorn Bn)- Holiday Camp Ltd., v. Shefl Maxjand B.P. Ltd. (1975) Q.B. 94, ( 10 _ 1 _ . ’Soe.\ for further discussion. ( 1980) Current Law Pa-rt 5. page 24d. ( ` · , _,,, “Law Reform Committee Report. (September 1977) Cm€$é692§, Para 3.50 to 3.j2. · 1 ·-friélum v. Niue. (1977), A11. E.R._t230); (1916) 1 ..L.R’; 1295 C.C.A . g \ ’. ffrelaar v. Nut: (1977) 1 All E.R. 230. ` ali? 3. » 154~ V 89rH mavokr or mw comm. or mom on 'l`HE unmmow icr, 1963 _ I V (Chapter 35~Artfe·/es 6/ to 67: Suitskelating ia immovable Property) _ X considerthat the suggestion of the Institute——that there would be a presump· tion that possession is adverse——would` really add anything to this existing 4 provision. Accordingly, we think that it may be necessary for amending A legislation expressly to provide thattfor the purposesof the Limitation Act ` I "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 ofthe ‘ 4 A case".· · r ·V v_ Limitation A 35.23._As a result of the recommendations of the Law Reforms Committee, the Limitation Amendment Act 1980 was passedin 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. · _ ` ( ` A "(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 occupation is not inconsistent with Y V the latter’s present or future enjoyment of the land. V g . V This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any lang! is; by injplied permission of the person entitled to the land in any case wheresuch finding is justified on the actualr facts of the case." - _ The Commentator of the Current Law Sfatntes§Annotated‘ has observed (with 1 AV reference to this provision) that this amendmeiit is? "another round in the Legis- _ N lature v. Lord Denning saga". A ` 1 é 7 F r . Q A ° r L L ` · . jini ij 35.24. We have made a passing refqence to the fact that like many other i- ¤ 1 well established legal doctrines, the doctrine of adverse possession has also attracted`- ‘ V, the adverse notice of some jurists. Howevegcas gstated above, the philosophy< i A underlying the same has become an integraifpaxft of. our jurisprudence. _Both on the merits and on the ground just noSv mentioned, the doctrine deserves not ‘ ‘ to be disturbed in its essence. . . ; _ g _ V. _ No change V We have also referred to the development; §1gland as a matter of interest. jms? - jln _India, these controversies have not ai·ise;gV-?Adeording1y, we do not recom- ` V;i mend change in the article. i’jj;i ‘ V , ‘ _ [ i . 66.}, ` 35.25. This takes us to article 66, which asgunder :—— _ "66t For possession of immovable pro- the forfeiture is incurred or V. perty when.the plaintiff has be- A, years. Pfthecondition is broken." come entitled to possession by * ,. _ A A i - reason of any forfeiture or breach , ‘ ? , _ of condition- · V Article 143 of the Acts of 1908 and_il87i;rsvaa as under:- ». » "143. Like suit, when the plaintiff has Twdve _ the forfeiture IS incurred or- ` becomeentitled by reason of any yeah. iiitheeondition is broken." i forfeiture or breach of condition. . V · In the Act of 1871, article 144 was in identidl terms. A » `Q Ti? ‘ i ————-` A ‘(1980) Part 5 Current Law page 24/4. ~• *· ·` ‘. 89ru ruzronr or mw coivuvm. or 1NmA on rite uM1rArroN Aer, 1963 · " (Chapter 35~·Artic/es 6/ to 67: Suits Relatim to immovable Property) , I _ 35.26. Many of the judicial decisions usually discussed under this article Cascdsw · ‘ I __ involve matters of substantive law and we need not pause to discuss them. It is l ' enough to mention one important aspect which wasih issue in a Madras case} Q Defedants in that case were in possession of a land on tenancy basis by virtue of a , deed executed in 1836. In 1871, the defendants. setjup a right of permanent . tenancy. In 1894, the plaintiif gave notice tothe defendants to give up possession of the lands and filed a suit for evictionn 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 repudiating 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 I-Iigh·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 léase) was necessary before - bringing an action for ejectment. - In such a case, article 148 (present article 66) * applied and limitation began to run from theidate of forfeiture incurred (i.e. the date of wrongful alienation of the property), unless the lessor, by a positive act, affirmed the tenancy and thereby waived the forfeiture. These 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 a difference as to the precise article `of the Lirnfatison Act that would be attracted to the particular situation. For that reason, it seems hardly necessary to-pursue the matter further. ¤ j ( . ° . 5 . Y z V " ~ *35.27. It may also be mentioned that tenahcies of agricultural lands are Lfimjtgdv _- ’ nowvmostly regulated by the Land.Reform Laws; enacted by various States. As I t regards non-agricultural land, again, various rentbontrol laws now contain the or rorteiqure. _ law in respect of residential buildings in urban areas. The area where the lpro- _ ~ _ visions of `thej general law of landlord and tenant applicable to tenancies has now considerably shrunk. Thus, the article under'_dise§.1ssion has limited utility, -9 which is practicably= confined to residual gems not touched by ”specia1 5 Y legislation? _ ` . l N t I j 35.28. In the above position, a change? in the article is not considered No. chaup ‘ ( ` `.u£ccSSaIy_ if V vg I1C¢d€d. · [idg]1, tf 35.29. Article 67 reads as under:- Y X P . Q "?67.·By a landlord to recover posses- Twelve Wheirthe tenancy is determined? - _ sion fromatenant. years. * ‘ ‘ · ( 'It is identical with article 139 of the Acts =of 1908 and 1877, and with article, 140 of the Actof 1871. ` I , _ ` _ 35.30. Some controversy seems to exist as regardsfi the legal representatives Rcprgsgnmm _ . _ of a tenant. In one case} the Madras High Cottrtobserved that a tenant holding g;1gi:;¤g;__- over after the expiry of his term became a tenant onsuiferance. The High Court whether a * further held that the representatives of a tenant on sufferance were mere trespassers *¢¤¤¤*- . e andthe lessor could not (by his assent alone) convert such representatives into ' l "tenants"_ Without their concurrence. Howeveréinanother case of the same'High P ` kirjnivas Ayyar v.CMutlzusami Pillai. (1901) I.L.Rs 24 Medi. 246. ~ _ “ ‘ 'trmamalai v. Vythilinga, A.I.R, 1937 Mad. 295. gi c j 4 7 also para 35.32, infra. _ Y V Qtr; ._! _ _ ,1 gdapulh Nqlammham v. Dronamrayu, (1908) Mad. 163. 4 _ ` al 89IH REPORT OF LAW, coMM;~:. or INDIA oN·?tt1—i.E LIMITATION ACT, 1963 ”* I , (Chapter 35 — Articles 6l to 67 .· Suits Relating to lmmovable Property) (Chapter 36- Articles 68 to 71: Sldts Relating to Movable Property) A · , · ~ . x Court} this view was dissented from anld _it_iwas`held that a suit against-the representatives of a tenant after the determinatzioniof the tenancy was governed ` by article 139 of the Act of 1908 (present article`67). The Allahabad High Court“-’ ' has also _concurred in the latter Madras view. In such a case, the landlord V ` should be able to give his assent to their cofitintting in the possession,—as he_, A could have done if the deceased had been alive. As the latter view seems to N . . . . , meet the requirements of the provisions of section {116 T .P. Act. _ _ Ilnortgagee in _ ` ° ‘ A · ll · *p¢iS»¢ST1¤g;— 35.31. In one case} the erstwhile Hyderabad High Court held that where the , ..7 and °¥ ·` mortgagee leased the mortgaged property to the mortgagor as his tenant and subsequently sued the mortgagor for ejecmietatythe claim for possession was not f by the mortgagee as such, and would belgovernediby article 139 of the Act of f. 1908. But the Lahore High Court has observedlthht the plaintiff was not suing the defendant merely as a landlord -for tlieirfejectment, but he had brought the suit on thelbasis of his right as a mortgageewiih possession. mv;? A 35.32. Ordinarily, we would have gone imo details of such controversies, q ’ A I revealing a disparity of views. However, `the general law of landlord and tenant _ l A I ( has now veryilimited application} and the artielet is now needed` only for tenancies not controlled by special legislation: Its utility being so limited, we would leave' the matter at that. Q _ . ' _ e 5 I 4 In the result no _change is needed in article. l ; _ q , > c1—rA1>·rn1z‘;;s\ 1 ‘ A _ I ARTICLES 68 to 71: SUITS SIOVABLE PROPERTY ‘ Ar;iel£»68. _ ‘ V 36·1.4Article 68 reads as under :—— I, i l ` if ih - r - "68. For specilic movable property Three '·When the person having the righ . _ lost, or acquired by theft, or- dis- years. to possession of the property firs C - honest misappropriation or con— _ » learns in whose possession it is." . _ · version. · . , ‘ _ , This corresponds to the first part of an article 48 of the Act of 1908. The A second partof that article forms part of present article 9.l(a). Article 48 of that _ Act is reproduced below:— _ . " ` . e ` _ _ _ *‘48. For specific movable property Three ,Whcn the person having the right I lost or acquired by theft, or dis- yeazrs. upto die possession of the property honest- misappropriation or con- first? learns in whose possession, A version--or for\wrongl"ully taking _. __ ·_it is¤’? r or detaming the same. . A f r V Article 48 and 49 of the Act of 1877 were-as under : — V ` l Y. "48. For specific movable property Three -When thc person having the right A ‘ lost; or acquired by theft, or dis- yezus. to the possession of the property honest misappropriation or con- L (ijrst learns in iwhose possession . A version, or for compensation for ‘ it is; ' 5 wrongfullytaking ordetaining the q. .,; — _ A ' -· same. . _ ' - [ . Hiulvbravcri Ramiah v. Gundalu Ramanmz, (1910) BLR. 33 Mad. 260. “Sl1eu Dulare Lal Sah v. Anant Ram, A.I.R. 1954. . V. 47§. . . 3See also Sizrdaraman v. Sundar Lal, A.I.R. 1968 73%;/363. ‘Ranba v. Bumila/, A.I.R. 1953 Hyd. 231. L V . 4 ¤ -¥ Mmm v. Santa, A.I.R. 1936 Lah. 441. -‘ · { Tg? ._ g_ ‘ . tseerliscussion relating to article -66, para ti I V ` . i · ’ l 89rn mar·oiu· or mw coriwin. or mera `o1~t‘rgua" LIMITATION Aer, 1963 · — — _ . A ·A , (Chapter 36-. ·Arrir·/esj68 to 7/.- Suits to Movable Property) A "49. For other specific movabie pro- Three When fthe property is wrongfully ~ “ * perty or for compensation for years, taken or injured, or when the ‘ r wrongfully taking or injuring or `detaincfs possession becomes uu- - V wrongfully detaining the same. ` L lawful? . _ , . Articles 26, 33, 34, 35, 47, 48 of the Act of 1871 were as under:—. ‘ A `°‘26. Fortaking or damaging movable One A Whenthe taking or damage occurs. ‘ property. year. " A 33. For wrongfully detaining title Two When the title to the {property com- ` deeds. " A years. prisedin the deeds is adjudged T0 ’ y · i the plaintiff, or 'the detamer’s “ _ er ‘ possession otherwise becomes un- ’ _ _ lawful. · For wrongfully detaining any Two I the detainer’s possession be- other movable property. years. comes unlawful. . 35. For specific recovery of movab— Two l When H10 property isdemanded and _ . lc property in cases not provided years. refused _ V · A for by this Schedule numbers 48 ` , A and 49. ` r V · 347. For lost movable property not Three. When the property is demanded —·_ dishonestly misappropriated or years. and refused. · . , · converted. . - _, .48; For movable property acquired Three Ditto." A -by theft. extortion, cheating, or years. · ` - i dishonest misappropriation or _ · . l conversion. A ‘ ' ' · - A . { · I / _ · . “ 36.2. The»Law Commission, in its Reportlvorijthe Act of 1908, recommended L*}s';i£?:”` . . that in respect of article 48, the period of .3 years might lbe retained, but the RWM? ‘ { . J date of accrual of cause of action should be __made·the starting point of limitation. A p Jn thepresent Act, article 48 of the 1908 Act been split up. . ’ = ;‘ 36.3. Some case law has gathered around the expression "movable property" gg? _ ` woecurrmg in the article.` However, thisis a of art and we do not wish ' Q - to change the same. ,We would not therefo/re recommend any change in the ~ , t . T article. . l . p . . - i Q A, " Article 69 reads as under :— L i ; Article 69. ‘ ,i ’!_‘69. For other speeiiip movable pro- Three When the property is wrongfully 3 . ·_ perty. _ years. talten." · . _` * ~_This corresponds to the first part of ¢f..the Act of 1908. [The second part of that article forms part of present 9l(b)]. The whole article was as under:- · i ‘ p} ’ ` **49. For other .specilic movable pro- Three When the property is wrongfully A ~ , perty ·or for compensation for years._ takenor injured or when the de- p wrongfully taking or injuring or —tuiijer’sj possession becomes un- ‘ , ’ wrongfully detaining the same. . i lawful." - _ . g e , Q . ` Article 49 of the Act of 1877 was in identieal terms. .. i··—·.;‘_Law commission of India, 3rd Report_(Lim@ page a5_ bm-A gz}, A A {58* · 9 89rH REPORT or mw coivnm. or INDIA on rn; LlMll`ATlO1\l Aer, 1963 ' (Chapter 36--Articles 68 to 7/: Suits Relating to Movable Property) l . 4 _ Articles 26, 33, 34, 35, 47 and 48 of the Act 'rof 1871 read as under:--- ’ "26. For taking or damaging movable One When the taking or damage occurs, 9 _ 9 property. year. 9 33; For wrongfully detaining title Two When the title. to the pr‘cpe1‘tY deeds. years. compsisedin the deeds is adjudged ' » _ 9 to the plaintiff. or the detainer’s Q _ , possession otherwise becomes un- ` · ` lawful. _ 34. For wrongfully detaining any Two _9When the possessionlbecomes un- ` other movable property. years. lawful. J , 35. For specific recovery of movable Twd A When the property is demanded and . property in cases not provided for years. . refused. 9 _ r - by this schedule numbers 48 and _ . . i 49. ' · 7 ' 47. .For lost movable property not Three When the prerrcvtyis deriranded and ~ ’ V I dishonesily misaprxopriated or years. refured. ‘ " — converted. _ , R 9 48. For movable property acquired by Qitto." ‘ l » theft,»extortion, cheating or dis- years. " _ honest misappropriation or con- 9 . version. 9. 9 _ . _ No change is needed in the article. s l ._ ’ . . ‘ _ *-1 - 9 Attic]; ·io_ 9 36.5. Article 70 reads as under s- ~ ` 7 . { 99 · 9 9 A ‘70. To recover movable property de- Three The date of refusal after demand." { posited or pawned from a depo- years. . T · sitarylor pawnee. r ’ “ It corresponds to article 145 of the Act of,ll908, which was as under:-- I ·‘145. Against a depositary or pawnee Thirty The date of the deposit or pawn." to recover movable property de- years. _ 9 · " 9 positedfor pawned. A L ' _ fl` hm is identical with article 145 ofthe 1377 Act. Article 147 of the Act of 1871 A was as under : ~ . U - ' _ "147. Against a depository or pawnee Thirty The gdate 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 * ‘ g ‘ 9 V pawner, or of his right of redemp- ‘ 9 tion, has before the expiration of ~ . g thegprescribed period been made - ‘ . A in writing, signcdiby the deposi- ‘ _ . tary, or pawnee, or some person _ p clargmng under him, and in such . 9 p case, date of the acknowledge= _ . .; (?_f ment? p . - In the present Act, the period is three it is to be computed from the . _ I p date of refusal after demand. ‘ 9. 5 ‘ A B`, CMP _ 36.5. The Law Commission, in its Képortgonithe Act of 1908,* observed — ‘ · that in article 145 of that Act it would be more appropriate to make the date of R°#°'.»_ .·»» L ` refusal after demand as the starting limitation and that the period p sh0uld`be fixed as three years from that date..?'H1e recommendation has been A accepted in article 70 of the present act,’cnacted place of article 145 of the, Act of 1908. 9 1 · J` ` . . J; . 9 _. lL3W`C9g1l’f]lSS1OD, 3rd Report{(Lrrmtatron page 45, para 121, ’ ._ gi ‘ 89TH REPORT or LAW coMM1~:. or INDIA ON THE LIMITATION ACT, 1963 , Q y AAAAA (Chapter 36»—-Articles 68 to 7/: Suits Relatingro 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’”;',;‘l:";;gQ1?t;,; ·' for the purposes of this article. A contrary view has, however, been taken by eontircta some High Courts? In an Allahabad case, the main relief claimed by the plaintiffs U · was the recovery of certain sum which represented the price of goods deposited, rand interest on Ythe same. It was held that such a_ suit could not be described to ` N be a. suit for the recovery of "speciIic 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 A 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 rrotdeline the term at all. Section 2(9) of the Registration Act, 1908 makes a special provision for including certain ~ items asa species of movable property. Section? 82 of the Companies Act, 1956 rr makes a share or other interest of any member in a company to be a "movable property". Noneoof these Acts. however. speesncarry provides that money is ‘ movable property. _ . A ’ 36.7. Ordinarily such a conflict of views would need to be attended to. But No change- ( A r we note that in the Andhra Pradeshecase, this was only one of the grounds of “°°d°d·· li * decision, and the decision was based on ya number ,of alternative grounds. We e ‘ ? ' do not therefore consider it necessary to recommendiany change in the wording p .. of the article. We may add that the recentjrend is not to include money in this' 4 ' 3I‘ClC1C. ‘ V A , ’ ii T e 36.8. Article 7l reads as under :—e A A · N'*1°l° 71- . - · ."7lL To recover movable property de- Three; When the sale becomes known to ‘ “ posited or pawhed, and afterwards years; the plaintifl`." ~ bought' from the depositary or * ` " ` . ' puwnee for a valuable cor1sidera— · . · V tron. - A V pl It corresponds to the latter _half of aricle 48vA., of_ the Act of 1908. This · splitting up of the article was done on the recbmmendation of the Law Commission inyits Report on the Act of·1908.’ 3 A ° ’ Article 48- A of that act was as under :—— , _ ‘ "48-A. To recover movable property Threcfi the sale becomes known to • ‘ conveyed or bequeathed in trust, · years. plaintiff." deposited or pawned, and after- . j wards bought from the trustee, depositary or pawnee for a valu- ( t ¤ . able consrderatron. ‘ A . · _ , 'In article 133 of the Act of 1877, the starting point was the date of the ypurchase and the period prescribed was 12 years.; V V _ A i*(a) Central Warehousing Corpn., New Delhi v. Chntrel Bank of India, Hyderabad. A.I.R_ 1974 A.P. 8. { ; Q F (b) Ahilyamba y. Subramania. A.I.R. 1954 Mid. 1011 · ` ‘ (c) Lala Govind v. Chairman, 6 C.L.J. 535_ g ”(a) Khuirul Basheer v. Thanna Lal, A.I.R. 1957 All. 553., ( A (b) Balakrrlrhna v. Naruyanswami, I.L.R. 37 , ‘ _ °Law Commissionlof India, 3rd- Report (Lirm£(:irA ON rms LiMrrAr1oN Acr, 1963 i IQ] _ ~ . (Chapter 37»—Articles 72 to 91 .· Suits Re/ating 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 V, 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 J 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 ‘ j English Law for actions on tort as respects personal injury. whether caused by A 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 ` g come under the general provision for all suits on tort for which we propose i` 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 1 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 DL Sch Gum-., Commission on the Act of 1908, was as under :—— dissent —t¤ ~ ’ the earlier "The reasons for the proposed amendments in respect of article 2 are firstly, R°P°n` 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 are purely suits for damages for a particular wrong against a particular person. But most of these cases would be cases in which an officer of the Government has been acting or purporting to act under authority of an enactment and in most of these cases, questions about the validity of the enactment or of the inter- pretation of it upon which the officer 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 theldecision goes against the action of a particular officer. the Government maytake early steps that further action may not be ta-ken on the erroneous view of law. Further, it must be re- p A membered that the Government is made vicariouslv responsible for the acts of; its oiiicers and having regard to the extremely large area of Government activities and its responsibility for acts of a multitude of officers, it is neces- · ‘ . .‘Law Commission of India, 3rd Report (Limitation 'Act, 1908) pages 69-70. _ T 22-14 M of LJ & CA/ND[83 — 1 ` _ l l62 · 89TH REPORT or LAW coMMN. or INDIA ON THE LIMITATION ACT, 1963 _A (Chapter 37——ArticIes 72 to 91 : Suits Relating to T art) p 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. I . ` l "Public policy requires that acts of government ofhcials purported to . 4 have been done under the provisions of some enactments in force should be s · _ tested, if necessary, as soon as possible in order that public administration t may not be affected by an erroneous course of action based on wrong ‘ A _ 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 dilference in the provisions lies not in the character of e _ the person against whom the suit is brought, but in the nature of the claim which justifiesa short period." ‘ Nad for 37.4. The recommendation made by the majority of the Law, Commission *£:¤::c¤;;l in its Report on the Act of 1908 was to increase the period to three years, but “mc¤da;g0¤_ the period has been increased (by the Act of 1963) only to one year. ·T_ uk 37.4A. In this connection. an aspect to which attention must be drawn is en . . · i¤u;°,.,umi_ J the fact that where a private person wants to sue the Government or a public , _¤¤¤'Y $@95- ( ollicer 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 steps. These preliminaries include- ` (i) collecting the necessary information: ` (ii) getting the necessary copies of documents etc. from the public oflice ` concerned; 4 (iii) taking legal advice; and i ‘ A (iv) arranging for the payment of court fee and other expenses. · Furthermore. the scope and importance of suits govemed by article 72 is daily increasing. as almos-t every oilicial 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 A the sphere of wrongs taking place under the colour of statute is expanding in volume. day by day. lt is. therefore, necessary that the increased importance of - h 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. ln 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 ditliculties of the litigants (in the shape of time consumed by preliminarics to such litigation) must be given great weight. lt. 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 ‘ ‘ r too long a period or an unreasonable one! having regard to the considerations that have been mentioned above. I p SHPTG. ` 1 891*14 iuaroizr or LAW coMMN. or INDIA ON THE LIMITATION ACT, 1963 ‘I& (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 Diftienlty V torture of undertrials‘-2 and these were detected after a long time. Thus, the géaiggmu litigant against the Government suing for acts done under alleged statutory autho- Government rity has to face a serious practical difhculty. In fact, the Judicial Commissioner, i Nagpur} had as long back as in 1877, anticipated that damage caused by a e public servant may not come to bc noticed for quite some time :j "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 7 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 _ oilicer for compensation for an act alleged} to be done in his oflicial capa- · 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- i 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 X limitation to three years. · . _ s · _ 37.7. This takes us to article 73, reading as under 1+- _ Article 73. , "73.;For compensation for falseimpri- One _1 When theimprisonment ends." _ sonment. year._J i It isidentical with article 19, of the Acts of 1908 and 1877. ' . In the Limitation Act of 1871, article 21 wasias under:— i ` "21. For false imprisonment. One V When the imprisonment ends." 1 . » i year. The words ‘For compensation’ were added in the year 1877 in the iirst column. •This, probably, was done as a result of the suggestion received through the Com- ` _ missioner, Central Provinces. on the- draft article ot 1877 Act; ` . . A 'T "Better say" for damages or compensation "for false imprisonment."‘ The Law Commission' made the following observations on the corresponding article of the Act or 1908, in its Report on that Act:— , A. "Artic1e 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 g _ the Limitation Act and rerniinus 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. Stare 0f Bihar, (1981) 1 S.C.C. 623, 627. *·'AniI v_ State of Bihar, (1981) 1 S.C.C. 622. Uudicial Commissioner, Central Provinces, letter No. 461 dated 12th March, 1877, ' _ National Archives File, Paper No. 7, page 5. _ _ _ _ _ ~ ‘Letter No. 778 dated 12th April, 1877, Judicial Commissioner, Central Provmces, National Archives File, 1877. Paper ll, page 6. _ _ . _ ‘Law _Commision of India, 3rd Report (Limitation Act, 1908), page 41, para 110, I64 · 891"H REPORT OF LAW COMMN. or INDIAAON THE LIMITATION ACT, 1963 i (Chapter 37—Artic/es 72 to 91 : Suits Relating to Tart) , Article 74. 37.8. Article 74 reads as under :— "74. For compensation f`oramalicious· One When the plaintiff is acquitted or C - I prosecution. year. the prosecution is otherwise ter- ‘ .minatcd." lt 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. _ History. · 37.9. When the draft Bill of 187,7 was circulated for comments, the earlier A phraseology (Act of 1871) was changed by adding the words "or the prosecution is otherwise terminated".1 The following comment was received on the proposed change:- , _ "When can a prosecution be said to have terminated? Has it terminated q 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. Pemham 4 T.R. 247; and T ippet v. Neavn, 4 B. & _ Aid. 634. An acquittal upon a technicality is a different thing from a convic- - tion set aside for want of jurisdi‘ction."i ` The other comment seems to be more pertinent and applauded the proposed _ ‘ - change _as follows:- ‘ , 7 "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."" A _ * The then Secretary, Legislative Department agreed‘ with the latter view and ` - the text of the article was ultimately passed as it was proposed, uw Com. , 37.10. The Law Commission in its Report on the Act of 1908 recommendeds .¤1i·¤§i°¤'• a uniform period of 3 years for suits founded on tort. [It had no specific comments mwmmmda- on the corresponding article of that Act as such]. V mm. ‘ ` _ 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). Article 74- 37.11. A controversy still exists in regard to the starting point of limitation c°°°°v°"Y eriod in the third column. There are two starting oints given in the third . ¤.¤>¤¤¤·¤=. P .. . . P . punt qf column. They are—(l) when the plamtrff 1S acquitted, or (2) when the prosecution hmm¤°°‘ is “otherwise terminated."—a test added” in 1877. According to the Bombay 7 __ _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 (according to this view) operative for the purposes of limitation and the filing of i · ‘Statement of Objects and Reasons; National Archives File 1877, page il. ’Letter dated 19th April, 1877 from Charles D. Field, National Archives File 1877, A » Paper No. 8, page 8. ”Demi Oflicial letter from the Hon’ble Sir Richard Garth to the H0n’ble Arthur Hob- house dated 24th July, l876_ National Archives File 1877, Paper 2, page 4. , ‘Note in National Archives File 1877, Paper L page S. 5Law Commission of India, 3rd Report (Limitation Act, 1908), page 44, para 116. - "Paragraph 37.9 supra. ` e _ r '(a)Bhaskar v. Kishanlal, A.I.R. 1968 Bom. 21. ‘ ‘ (b) Purshormm Vithaldas v. Ruvii Hari, A_I.R. 1922 Bom. 209. , 89rn nuvonr or LAW commu. or mom ou me LIMITATION Acr, 1963 165 (Chapter 37~—Artic/es 72 to 91 : Suits Relating to T art) 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 ` Court observedl as under: · ‘ “ ‘ F "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- 8 native is that ‘the prosecution is otherwise tcrminatedl Now, whenever a prose- _- cution is started, it may not necessarily end in an acquittal. · A prosecution may end, either in acquittal or conviction. lf it is the lirst, then, it is governed by _ the first part of this provision, and if it is thc second, there can bc no case for a suit. It may also result in an order of discharge, or in a disrnissalbof the com- i plaint if the complainant is absent on the dategtixcd 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." k _ The High Court further pointed out that whenever the Legislature mtended that the time should commence to run from the final order, it had expressly . e said so. The following observations of the Allahabad High Court in its earlier case? on the subject retlect the same approach : — _ "A perusal of article 23 of the Limitation- Act (of 1908) goes to show , A 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. j { 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 tiled . revision, the filing of revision cannot aifect the order of acquittal already ‘ passed. lt will remain an order of acquittal till the acquittal is converted into an order of sentence. It would thus appear that rmder article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs _ A 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 o1 the order of A , ‘ acquittal." ` ` On this view, the filing of a revision against acquittal does not suspend · the running of limitation which has once started. ( _ _ e ' . . i . . . Opposite 37.12. The opposite view has, however, been taken in a later decision of the school or Allahabad High Court? A full Bench of the Madras High Court took this view ’h°“¥l"· 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 vrewi is containedr in these observations in one of its judgments." . ihaskar v. Kisanlal, A.I.R. 1968 Bom. 21, 22, para 3. - ‘ ”Madhv Lal v. Hari Shankar,·A.I.R. 1963 All. 547, 548, para 5 (M. Lal J,). ”Madhc Lal v. Shyam Sundur Vaish. (1969) All L.], 587, 589 (See paragraph 37.13, infra). L ‘KuIase/tara Chetty v. Tholasingam Chetty, A.I.R. 1938 Mad. 349 (FB,). 5Basappa Sangappa v, Narayanappa Kriyappa, I.L.R. (1973) Mys. 201, 206 (See infra). . _ ~ °RamviIas v.'G0pal Lal, (1973) Raj. I..W. 92 (See paragraph 37.14 infra). ilfulasekara Cherry v. Tlzolasingam Cherry, A.I.R. 1938 Mad. 349. _ ‘ » *Bhaskar v. Kisarrlal, A.I.R. 1968 Bom. 21, 24. , , ,4 M6 89rrr aavonr o:= LAW Camry. or rN>rA ON me L(Ml'l`A'1'lO>N Act, 1963 ._ · (Chapter 37· —Articles 72 to 91 : Suits Relating to Tort) g ' "In our view, therefore, there can be no justification to add the word 1 I ‘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- ed:‘ ’ _ __ "1`he criticism, therefore, that the Madras view illogically imports the 'C idea of finality or actually adds the word ‘fir1ally’ or ‘hnal’ to the language C _ of the third column is, with respect, not justified. Finality is actually inher· . Nj ent in 1/ic choice of the word ‘terininati0n`. Taking, therefore, the two things together, viz., that o11e 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 ` imtil 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 ‘ A 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." · Atlnhsbad · _ 37.13. The Allahabad High Court has also, in a later case held“ as under :— 'udgment. A. I - "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 prosecution 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 obvhtes the necessity for making an . ` eg 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? _4 _ · V Rahim ` 37.14. In the Rajasthan judgment} the following passage represents a simi- - "i¤*· lar views- C · "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- . `eution is otherwise terminated’, must be interpreted as meaning ‘when the ` 4 prosecution of the plaintiff is terminated by acquittal or otherwise` and the C termination of the prosecution by acquittal should be deemed 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 ‘ c that the words used in article 23 of the Limitation Act ‘when the plaintif is acquittedi must not be read independently of the words or the prosecution A is otherwise terminatedi The illogical distinction pointed out by the Bom- A . 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 ofacquittal ‘Basappa Sangappa v. Narayanappa Kariyappa, l.L.R. (1973) Mys. 201, 206 (Lin ahusis C nddcflcladlw Lal. v. Shyam Sunder Vaish, (1969) All. LJ. 587. (D.B.) [The earlier case of l 1963 does not appear to have been cited]. — . “Ram Vilas v. Gopal Lal, (1973) Raj. L.W. 92, 94 (Modi J.), . _ _ .- 1 · 89TH Reronr or r.Aw coMMN. or lNDlA ON rms LIMITATION ACT, 1963 1*7 (Chapter 37—·Artic/es 72 ta 9l : Suits Relating to T art) - passed in his favour is still sub-judice under appeal or revision filed by the V complainant or the State." . 37.15. In this context—though this is a matter of substantive law»—it may American be worth mentioning that the Restatement of the Law '(Second) on 'I`orts‘ has R°sm°m°°t‘ this to say regarding the termination of proceedings for the purpose of the t0rt_ of malicious prosecutions- , "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 la) a discharge by a magistrate at a preliminary hearing, or g (b) the refusal of a grand jury to indict. or V · lc) the formal abandonment of the proceedings by`the public prose- cutor, or (d) the quashing of an indictment or information, or (e) an acquittal, or · I (f) a tinal order in favour of the accused by a trial or appellate court." 37.16. Street has dealt? with this ingrediant of malicious prosecution thus: Enum] A ` ,, . . . . . ' a The proceedings must have terminated in favour of the plmnt1lP. 3:*,,;,3 Even though the plaintiil has been convicted of a lesser otlence‘, or has had gm} • his conviction uashed on ap eal, or has been ac uitted on a technicali , 0c,,,;;;, q P q pr ss. e.g. a*defect in the indictment, this requirement is satisued. 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 plaimti[7 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 difference 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. ; C _ 37.17. The net result of the above discussion is that there is an obvious con- Ruommemg. dict of views between the—Bombay High Court on the one hand and the other mm ' g High Courts on the other hand. There seems to be a need for clarifying the · ·' I *American Law Institute Restatement (Second) on Torts (1977) Vol. 3, Articles 65S, 659_ · ’Harry Street, Law of Torts (1976). page 397. ’Thi§ requirement is not imposed where, for example, an arrest or search warant is procured. . , \ ‘Cases cited in suport of the discussion have been omitted. . 168 89TH REPORT or LAW c0MMN. or mom ON run L1M1rA·rroN Acr, 1963 ‘ / (Chapter 37~—Ar1‘icIes 72 to 91 : Suits Relating t0 Tort) · ` ` position. In confomnity with the majority view (that is to say, the later ruling ’ 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 r _ e “terminated", the word "{inally" should be added, Apart from the fact that , _ W · _ e ·. such an amendment would be in harmony with the majority view, it will be of U considerable practical utility and avoid the dimculty 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 at higher court. Aflidu 75·76. · 37.18. The next two articles are concerned with defamation, and 1118)* i V ' i now be taken up. _ . h (a) Article 75 reads as under:- . V '/ » "75. For compensation for libel. One"' When the libel is published." year. It is identical with article 24 of the Acts of 1908 and 1877. · ~ _ Article 24 of the Act of 1871 reads as under :-—— "24. For libel. _ One When the libel is published? year. · (b) Article 76 reads as under;—— i “For compensation for slander. One When the words are spoken, or, year. if the words are not actionable in themselves, when the special V r damage complained of results." l , It is identical with Article 25 of the Act of 1908. A· V. ` In. the Act of 1877, Article 25 was as follows:— _, "For compensation for slander. One When the words are spoken, or, · year. if the words are not actionable 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 treatingthe causes of ‘ action for these two types of torts as. distinct.—though the period of limitation is one year in both the cases. ' · w 5,,8;;,,;, lap p ¥.l9. Halsbury states the position in England thus‘ : "In an action of libel time runs from the publication, but where, for exam- ‘· ple, a blook 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 · " I damage, time does not run until the dainage occurs," ‘Ha1sbury, 4th Ed, vol,. 28, para 689. · W A ‘ A t e9'I'H iuaroizr or LAW coMMN. or INDIA oN`·rHg L11vnTAr1oN ACT, 1963 . `_ t » (Chapter 37-—-Articles 72 ta 91 .· Suits Relating t0 tart). 1 37.20. Before 1871, the period of limitation, in India probably followed Lqsislldw. _ A . the English pr/actice. The period of one year proposed for suits for libel was HI$t°ry`~ , _ explained in the statement of Objects and Reasons annexed to the Bill that lead to the Act of 1871, as follows : —- _ "On the other hand, we have diminished to one year the period nxed for i 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',." - ‘ · ` ·37.21.lWl1en 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, makingrsuch a suggestion, _ smay be quoted:-- ' ` ` "I would suggest an alteration in the period applicable to libel; for A I think the term now fixed, namely, one yeartfrom publication, may, as I V 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 s 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 ` r those written under a sense of duty to av publicoflicial, where the person ` , . libelled, although he may have sustained loss from what he knows has been . Q said of him, still is unable, through obstaclesput in the waycither 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 made..`¤gainst 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. luis 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 ’ l the knowledge of his right to sue without any fraud on his libeller`s 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 i 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 Iligh Court _ was of opinion that the communications were‘·_l1ighly_libellous, and that the Q plaintiff would have been entitled to heavy had it not found. that _ Y the suit had been brought beyond the period allbwgd from the date of pub- 0 lication, although it was brought at the earliest opportunity. The case is ° = ` Charriol v. Lombard, and is reported in 1 Indian Jurist N.S., page *209 at Ir%q·”2 ‘ _ j· -/' \ . Another suggestion made by Mr. Field was to combine the two articles deal- . 1 with ‘libel’ and ‘slander’ into one compositearticletfor defamation” ; I —, ‘ Statement of Objects and Reasons'; National Archives Bile 1891, 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_ 1}, _ ». g V _ K _ n _ p£g°’Ii§tter'No. 19th April 1877, Charles D. Field, National Archives File 1908, paper 6, · ~eee=#-*s*i¤ts¤s¤¤i¢#¤¤¤/=¤ .5 - " gx * ‘k ` ~ # ‘ Q [10 89rH REPORT or LAW COMMN. OF INDIA ON THE LLMITATION ACT, 1963 (Chapter 37—T-Artic/es 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 Codc”. ` C¤m¤-i f 37.22. In 1907, Sir Lawrence Jenkins, Chief Justice of the Bombay High (wm) Court also expressed himself thus:' _ . ' "Article 25 and 24 should be only one article providing for defamation? Law_Com- 37.23. The Law Commission, in its Report on the Act of 1908, did not exa- {;s;,°;_° mine the above question, because it preferred one article for all tortious acts and observed thus2:——- "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 Barry v. Perry’ and also_ Darley Main Colliary Co. v. Thomas Wilfrid). J » ’ 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 tixed for the institution of these suits, time running from the date of the accrual of the caus_e of action." C Hiqwf! of _ 37.24. As regards the article relating to slander in the Act of 1877, in the ‘ _ ::I§:,dr::7°°’ 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- V 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 to. cover 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. - Position in 37.25. We have given anxious thought to the question whether articles 75 ggqoasgg and 76 (libel and slander) should be retained as they are. This necessitates an defamation, examination of the substantive law of defamation as a tort. The common law $m‘{‘°Jn{°;f position is that libel is actionable per se, while slander is actionable without proof the Limitation of special damage (unless the case falls within certain exceptional categories). A°‘* 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 T slander are actionable as torts, without thetneed 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 18-124907. ’ National `Archives File 1908. paper 6. page 13. " . ¤Law Commission of India, 3rd Report (Limitation Act}, page 44,. para 116 '(l725) Raym. ISSS. ‘ . *( 1886) II A.C_ 127. , ‘Bho0ni Money- v. Naobar. (1901) I.L.R_ 28 Ca!. 432, 452, 462, 463 (Case relating to , Town of Calcutta). . V X _ ' -` K J f . __'t ;,_ L._ Py- \< 2 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 _ (Chapter 37——-Articles—~72 to 91 —-Suits relating to tort.) hasno validity in India, and is not in harmony with justice, equity and good ‘ Conscicnce and is out of tune with the notions of Indian society.`-?-8 ‘ _ lt 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. . · ln 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 effected in New Zealand V has not given rise to any serious problems. Sir Denis Blundell (who later became the Governor-General of New Zealand), in his evidence given to the Faulks Com- mittee, stated that in New Zealand the abolition of the distinction between libel ( C 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 ` Q thus tends to perpetuate a distinction which is unfair in principle, anachronistic· _ ` 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 tillip to a distinction that - is already discarded. A 437.26. In the light ol` the above considerations, we_ are of the opinon, and lfteeemmeudn- 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 plaintiffs knowledge, so that the short period of limitation available does not ‘ _ commence to run until he has knowledge. i A We, therefore, recommend that articles 75-76 should be replaced by one single article to read as under i- ' "75. For|compensation for defamation One" When the defamatory statement is l year. publzsheal or where the defamatory statement is not published in a = _ permanent form, when it comes to . [To be substituted for present ar- the knowledge ofthe plaintQf" ticles 75-76.] _ » . _ f 37.27. This disposes of articles 75-76. Article 77 prescribes a time limit of Article 77 one year for a suit "for compensation for loss of service occasioned by the seduc- ‘;E2n‘f¤“'l°" · ~ tion of the plaintiffs servant or daughter". The time limit is to be counted from o 7 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. ` I y , . 450, f51,D45évgr;nIna`Solia v. Kannamma (1931) I.L.R. 55 Mad 727. A.I.R. 1981 Mad 445, . *Hiraba¤i v. Dinshaw (1926) I.L.R. 51 Bom. 167. • =Sukh:m v. Bipad (1907) I.L.R. 34 Cal 48. ‘Sect10n 4 of the (New Zealand) Defamation Act, 1954. V [72 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 (Chapter 37-—-Artic/es 72 to 91-Suits relating t0 tart.) 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:-- _ . "lt 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 which`they are expected to perform, but their position is not one of servitude, from which any contract of service can be implied."’ I 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 asan 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 sc- 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.2" I Comments 37.29. It may be of interest to note that when the draft Bill which led to l908· 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- Law as to uction have been abolishedf . seduction. . Need for 37.31. Taking note of the case law as well as current thinking on the subject, 1 gngggin 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. Subanshi Dhabi. A.l.R. 1942 Nag. 97. 3Dewan Bahadur S. Gopalachariar. Avargal Distt. Judge, Guntur. National Archives File 1908, letter No, 3073. dated 9th December_ Paper No. 8, page 10. *Le‘tter No. 2469. dated 18-12-1907. National Archives File 1908, Paper No. 6. - *’Section 5, I.aw Reform (Miscellaneous provisions) Act, 1970 (Eng.). O 89TH REPORT OF LAW coMMN. or INDIA ON THE LIMITATION ACT, 1963 173 (Chapter 37—~-Artic/es 72 to 9l-—Sui{s re/ating 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 compensation for seduction would attribute any relevance to the economic factor represented by "loss of service" of the female". 37.32, 111 this situation. the prcscnt wording lot article 77 needs change. as T*L¢¢d fvr . it acceutuates an unjust rule of the common law which. even if it is applicable C ang.; ' 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 for compensation for scduc· 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 I law, any High Court still takes the view that an action for seduction on the com- 8 mon law pattern is still permissible in India, there will not be any casus omissus A in the Limitation Act. lf article 77 as sought to be amended is regarded as in- applicable to such an action, the resicluary article would still apply. 37.33. In the light of the above discussion, we recommend that article 77 R¢¤<>¤*m¢¤d*‘ should be revised as under:-— mm ' "77. For compensation for seduction. One When the sediwimz oceurs." year. 37.34. This takes us to aritcle 78. Article 78 prescribes a period of limita- Afti¤l¢ 78- 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 of the Acts of 1908 and 1877, and with article ` 28 of the Act of 1871. , A In "this article also, having regard tothe position in substantive law, there - appears to be 11eed 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 ol contract is actionable_ as a tort if certain Th° $0** conditions are satisfied. But this is subject to two important limitations. ln the j§,$j;;t§OnS_ 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.2 To this general rule, however, there arise exceptions in specific circums- _ tancesF> 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 _ A _ 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 breach; ’Para 37.27 (supra)_ if `— l *Th0mson v. Deakin (WF2) Ch..646. 670 (Lord Evershed). _ *’Smirhie.v v. National Asrooiar/t»n of Uperarive P/rzszen-vs, (190l) I K.B, 310, 337. 450lHh Wales Miners Fcdevmi/mi v. G/anzmgmi Coal Ltd. (l903) 2 K.B. 545. j . 174 89rH iuaroar or Law coMMN. or INDIA ON rm; LIMITATION Acr, 1963 e (Chapter 37—Articles 72 to 91——Suits re/ating 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." Qases where 37.36. lt is not every inducement of breach of contract that is actionable. ;°::3,°%f Sometimes, the justification constituting a legal defence is said to be analogoul a- contraet is to privilege in defamation}-3 At other times, it is described as "acting in exercise mt wT°°gf"l‘ of equal or superior right? It is the latter test that has been more cmrent 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 Ain 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. Reeommenda- 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 “ s under:- » "For compensation for wrong- (Rest ofthe columns as at present). fully inducing a person to break. a contract with the plaintif1`." . , _.gtic1ss80 37.38. (a) Article 79 reads as under :—— . < an . - t "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 1871 was as under: A _ "For anillegal, irregular or cxces- One The date of the distress." i sive distress. ' ' year. ; (b) Article 80 reads as Q1nder:— I "For compensation for wrongful One The date of the seizurc." _ . seizure of movable property under year. legal process. It is identical with article 29 of the Acts of 1908 and 1877. Anticle 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. - . 1Cf. section 768, Restatement of Tort (Second) (1970). - ` ’See note in (1902-1903) 16 Harvard law Rev. 299. · ”Read V. Friendly society ctc. (1902) 2 K.B. 96. *Sayre, "Inducing breach of c0ntract" (1923) 36 Harvard Law Rev. 663, 687, 696. 5(jai-penter, "Interference with contract relati0ns” (1928) 41 Harvard Law Rev. 728.- VJ, D, Heydon, "Justirication in international economic torts laws" (1970) 20 University . Toronto Law Journal 139. 161, 163, 168 and 182. 7]_ D, Heydon, "Justilication in intentional economic torts law" (1970) 20 University of Toronto Law Journal 139, 161, 163, 168 and 182. · 89TH REPORT or LAW' c0MMN. or INDIA ON THE LIMITATION ACT, 1963 175 (Chapter 37-- Artic/es 72 to 91——-Suits refating to tort.) _ Articles 79 and 80 are taken together, since they represent one group ol articles dealing with the subject to distraint of property under legal process or seizure by extra-legal methods. The Law Commissionl 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 pi·ocess’ occurring in article 80 had given rise Expression n to certain conflict. The Allahabad High Court" ruled that it included all processes 1;°$:Q¤§;°‘£“ issued under any law. In regard to the seizure of crops under tenancy law by the landlord. the High Court observed : ~— 4 "In my opinion. a distraint effected under the local tenancy Act (No. II of A 1901) 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 7 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 CJ. observed thus:- "'I`he leamed 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 i 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 madezé- V "It must be remembered in this context that the expression ‘legal proceedings is not synonymous with ‘judicial proceedings. Proceedings may be legal X 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 ‘1egal 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. 1909), pages 44-45, pam 118. ’Man_Singh= V. Ram Nath, A.I.R. 1924 All. 828. 'Shivraa Shsgiri v. Secretary of Stare, A.l.R. 1942 Bombay 300. Also see Puharf v Surat, (-1948) I.L.R. 27 Pat. 680. 4 ' *,4 bdul Aziz v. Stare of Bombay A.I.R. 1958 Bombay 279, 282. t76 89m tuzroar or LAW COMMN. or 1NotA on run LIMITATION Act, 1963 · (Chapter 37——Artié!es 72 to 91—~Safts re/ating to tart.) No change 37.40. It is likely that the expression "1egal process’ would also be held to giogsfgal 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. $¤¥¤'¢i¤S 37.41. The starting point under this article requires some comments. When l)g08). the draft Limitation Bill 1908 was circulated, Dr. I—l.S. Gaur made the_following g comments also on the starting point of limitation : —— · ` "At present, the starting point for Limitation is the date of attachment and ‘ not the release (Rtmznarain v. Umrao Singh, l.L.R. 29 All. 615). I submit t 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 rcmedy."i~‘* ` The opinion of Mr. Justice Banerji also dealt with the same difficulty in these words:—» "ArricIes 29-30: Jn 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 difficult 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. lt is doubtful whether the attach- . ment can bc 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."” 3 Suggestions 37.42. It is not clear from the {ile of the Act of 1908 as to why these sug- °°"S'd"°d‘ gestions were not accepted. We have however given some thought to the matter and iind 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 tile a civil suit for damages, as the prescribed period of limitation is one year. Nw] fo, 37.43. However. considering the long duration of pendency of cases in courts $1:1:25 in 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 tiled 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 Singh v. Ram Nath, A.l.R. 1924 All. 828. 2Dr. H. S. Gaur. Bar-at-Law. Raipur, Letter No. 2063/V. 4—5 dt. 19—l2-1907 National Archives File 1908, Paper No. 2. page 9. _ ` 3Cf. Eng. Gfm Mol: v. Chinese Merited Com. Banking A.L.R. 1940 276 (FB). ‘Mr. Justice Banerii. High (`ourt of Judicature N.W. Provinces letter No. 4021 dated l8th December. 1907 National Archives File 1908. Paper No. 4, page No. S_ ‘Sir· Lawrence Jenkins. Chief Justice. Bombay High Court. letter N0. 2469 dated . 18-12-1907, National Archives File 1908, Paper No. 6, page 13. , 891*11 Rnronr or LA\V comm. or mom on una LIMITATION Acr, 1963 177 (Chapter 37~ArticIes 72 to 91——Suits relating to tort.) 37.43. To obviate such hardships as well as to avoid a multiplicity of litiga- §:;°a¤;";g¤d°‘ tion, we recommend that the third column of article 79 should be revised as articles 1g-gg_ f0llows:‘ s "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 seizurc." 37.44. Article 81 reads as under:— A**i°l¢ 81 "8l. 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. X11 year." wronged." of 1855 (to enable executors, ad- i` ministrators or representatives _to sue and be sued for certain wrongs). It was identical with article 12 of the Act of 1871. (b) Article 82 reads as under:— I "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 1908 except that the period in that Act was one ydar. In the Act of 1877, article 21 was as under:- "2l. By`executors,`Yadministrators or One The date ofthe 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 1871 was in identical terms. (c) "Article,83 reads as under :— "83. Under the legal Representatives Two When the wrong complained of Suits Act, 1855 against an execu- years. is d0ne." 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. ‘C0mpare articles 73, 74 and 90 and see Manga v. Changa Mal A.I.R. 1925 24-14 M of LJ&CA[ND/83 ` 178 89TH REI=0R‘r or LAW coMMN. OF INDIA ON THE LIMITATION Acr, 1963 (Chapter 37--—Ariic/es 72 to 91——SzIits relating to tart.) l 35. Under the same Act against any Two When the wrong complained of is other representative. years. done." Article 33 of the Act of 1877 was as under:- - "33. Under Act No. X11 of 1855 (to Two When the wrong complained of is · enable executors, administrators, years. done." or representatives to sue and to be 1 V sued for certain wrongs) against an executor, administrator. or ( other representative. Article 39 of the Act of 1871 was in identical terms. Law_com- 37.45. TheLaw Commissionl in its Report on the Act of 1908, while consi- ;*g;;°:'_ dering the scheme of the relevant Act, observed as under:~— Pc;’ri;:n§°gwival "The maxim of English Law "acti0 personalis maritur cum persona" Ihas -o£ cause or been modined in India by various Acts. The Fatal Accidents Act provides gig? °“ - 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 "deiined 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." _ History- 37.46. Article 83 of the Act of 1963 replaces articles 33, 34, and 35 of the Act of 1908. The period under this article is two years, whereas under article ( 81 it is one year. In article 82. the period of one year has been increased to ' two years (suits under the Fatal Accidents Act, 1855). ’ Law commis- 37.47. The Law Commission“ in its Report on the Act of 1908, observed "°P R°P°"' as under:— P°mF °9“°Fm‘ mg hmuammi ‘Law Commission of Indi_a, 3rd Report (Limitation Act 1908), page 41, para 112. 114-:L;w Commission of India, 3rd Report (Limitation Act 1908), pages 42-45, para 113, S9TH aaron? or LAW Comms. or 1NmA on im LlMl'lATlLN sor, 1963 179 (Chapter 37-—-Articles 72 to 91-—Suits relating to tart.) "ll3. Article 20 relates to a suit hlcd by a legal representative for torts causing pecuniary loss to the estate, while article 21 relates to a suit tiled by a legal representative for damages lor death, which has to be a representative action. 'lheother group of Articles 33, 34 and 35 relate to suits against the legal representatives. Under articles 20 and 2l, 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 r 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 A 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 govem such actions." “l14. 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 l separate Acts, a consolidating amendment in an appropriate manner may be made in section 306 of the Indian Succession Act. "l15. There is also a conflict of decisions under section 306 dfmfhe · 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, where it has been increased mime R¤i>¤r¢- to two years in the Act of 1963 on the recommendation of the Joint Committee. The Joint Committee Report stated‘ thus: Uoint Committee Report, (1963 Act). _ {gg . 89rrr ruarorzr or LAW CLJMMN. OF INDIA ON THE LIMIFATION Acr, l963 (Chapter 37~/lrticles 72 to 91—~Suits 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 ycars." Comment. 37.49. The period of one year in earlier articles (corresponding to present articles 81 and 83) was commented upon by W.], Money, Ofhciating Judge Maimansingh, in his old opinion of 1871,‘as to be too short for the purpose in ` e hand: ` "Tl1at, 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 diiiiculty of obtaining full infomation, and urges that it is not apparent. ‘ therefore, why the period of limitation should be reduced to one year. He A 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.’“ Causes of 37.50. So much as regards matters of primarily historical interest. A ques- 9¢’¢i0¤ S¤¤'i"· tion that may need to be looked into is this. Under section 306 of the Indian "~ mg °° d°ath' 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. - Reason {0, 37.51. The reason why this special provision was made might be that the SP¢¤i?l wronged person, when alive, might not have found time to take legal steps, and provmom 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 take-stock of the situation. 4 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 I can, if necessary, be more conveniently considered when the Succession Act is itself taken up for review by the Law Commission? Article 84_ 37.52. This takes us to article 84, which reads as under:- "84. Against one who, having a right Two When the perversion first becomes to use property for specific pur- years. ' known to the personinjured there- ` I poses, perverts it to other pur- by." poses. It is identical with article 32 of the Acts of 1908 and 1877. . ‘Oiiiciating 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 S3 to be considered when the Indian Succession Act, 1925, is taken up for review. _ · 89rir rusvonr or LAW comin. or morn on rms rtmrrzirrors Aer, 1963 181 , (Chapter 37·—Artic!es 72 to 91-Suits relating ta tort.) . Article 38 of the Act of 1871 was as under1~- "38. Against one who, having a right Two The time of the perversio1r." . to use property for specific pur- years. poses, perverts it to other pur- poses. 3’7.53(a) Article 85 is as under 1- Articles 85 V _ and S6. "85. For compensation for obstruct- Three The date ofthe 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 1-- K "37. For obstructing a way or water- Two The date of the obstruction." course. years. (b) Article 86 reads as under ef "86. For compensation for diverting Three 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:— "32. For diverting a watercourse. Two The date of thc diversion? · years. J’ 37.54. The starting point of limitation under these two articles is the date The Starting of the obstruction or the date of the diversion, as the case may be. One learned E;$;tQ§H . . . 1 . writer has commented adversely on this point 1 —- "'1`he starting point of limitation is the date of the obstruction. If obstruc- tion to way or water-course is, as has been recognised, a cominuing wrong, it is rather clithcult 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 diihculty, due _ perhaps to illogical drafting?" The above quoted passage referred to a single bench decision from Madhya Pradesh, wherein a suit had been tiled to recover mesnez profits from a tres- passer, wrongfully occupying a house, Shri Dayal, J. observed in that case:»— "The time begins to run from the "date of tresspass" mentioned in the article which means every date on which the rresspass continues and is not restricted to tl1e 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, it would have the effect of making the cessa- needed. tion of the wrong the starting point. The practical result would not be different from what it is now. No change is, therefore, recommended. ¤U, N. Mitra’s Law of Limitation and Prescription (9th Edition), page 1801. _ “Ant001al v. Chitarmal, (1964) M.P_L.J. (Notes) 106, y ‘ 182 89m tuzpoar or 1.Aw comm:. or mma on me Liivurimotv Aer, 1963 (Chapter 37-Articles 72 to 9l—-Suits relating to tort.) Article 87. 37.56. Article 87 reads as under :· ‘ "87. For compensation for tresspass __ 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:-— ‘ it "43. For tresspass upon immovable Three When the tresspass takes place." property. ' years. 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. No change 37.57. As there is no controversy under this article, we do not recommend HCEdCd. Article gg_ 37.58. Article 88 reads as under 1-- "88. For compensation for infringing Three The date of the int`ringement." copyright or any other exclusive years. privilege. lt is identical with article 40 of the Acts of 1908 and 1877. U In the Act of 1871, article 11 was as under:- "1l. For damages for infringing copy- One The date of the int`ringen1ent." right or any other exclusive pri- year. vilege. Case law on 37.59. The Calcutta High Court} dilating upon the word "damages" in the £s°i0°i.Ja8;,;_ Act of 1871, observed as under:-— gcs ' "1n my opinion article ll 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 prolits 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". view of 37.59. This view was also favoured by Dr. Stockes, in the following Dr. Stokes. Words :___ · _ "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’. A _ lferiodet 37.60. The present period of limitation under article 88 is three years. Chief l'm‘“""°”· Justice Sir Richard Garth and the then Secretary, Legislative Department had ` made certain comments on article ll of the Act of 1871 (which had fixed a period of one year). _ ‘Kinm0nd v. Jackson, (1877) I.L.R. 3 Cal. 17, 19. “Stokes, The Anglo-Indian Codes, Vol. 2 page 981. 89'1`H REPORT or LAW coMMN. or INDIA ON THE LIMITATION ACT, 1963 183 (Chapter 37-Articles 72 t0 91~Suits relating to tort.) "By clause 11, one year only is fixed as the period of limitation in case A 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 U 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 :— "Clause l1»—The limitation, I think should be three years instead of one."’ Mr. J. H. Nelson stated:-- ‘ "Artic1e 39-Literary piracy is theft; I would make the starting point the discovery of infringement.“" ` 37.61. These views were endorsed by the Secretary, Legislative Department, in the following note :—— "No. 11——Infrmgement 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 al1."’ _ 37.62. Thus, the period of one year in the Act of 1871 and Draft Limita- Em-{jm- tion Bill, 1877 was changed in 1877 to three years. The Report‘ of the Law §;Pgw°f Commission on the Act of 1908 did not suggest any change in this regard. Commission 37.63. There is a defect in the third column of the article under considera- Amgndmgnt tion. We think that it would not be reasonable to allow time to run against a as '*‘?g¤’d’ person, when he does not know that any of his rights have been infringed. It is gtggglgand also necessary to widen this article so as to add, in the tirst column, at the end, ;§é’mf;' the words "or for restraining such infringement? The object is to cover a suit intellectual for injunction. . g;%P°“V , 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-Ollicial Letter dated Sth March. 1876 to Arthur Hobhouse, National Archives File 1877, Paper No. 1,, page 2, ` *Sir Richard Garth, Demi—Oflicia1 letter dated 24th July 1876 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’s A remarks. National Archives 1877, paper No. 1, page 5. . ’ 5Law Commission of India. 3rd Report (Limitation Act, 1908), page 45, para 1. 184 89rn savour or LAW comm. or mom ON me L1M1rArroN incr, 1963 (Chapter 37-—Articles 72 to 91—-·Suits relating to tort.) R¢>¢¤mm¤¤d¤· 37.64. To make the discussion concrete, we recommend the following re- ‘ mm draft of article 88, so as to cover the points made abovel: "88. For compensation for infringing Three W/zen the infringemcntjirst becomes · _ copyright or right to or/zer inrelleg- years. known to the plaintiff.” _ tual property, or any other exclu- sive privilege, or for restraining suc/1 li’i]7'fllg6’I}’l€lZZ. AF*i<>l¢ 89· 37.65. We now proceed to article 89, which reads as under:- ' "89. To restrain waste. . . . Three When the waste begins." years. It is identical with article 41 of the Acts of 1908 and 1877. There was no comparable provision in the Act of 1877. No change I 37.66. In the absence of practical difficulties, we see no reason to disturb "°°d°d‘ the present article. p . Article 90. 37.67. Article 90 reads as under :— if l Q A Q I I 4 "90. For compensation for injury cau- Three When the injunction ceases." 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 :— "86. For compensation for damage Three When the injunction ceases." caused by an injunction wrong- years. fully obtained. * When the draft of the Act of 1908 was circulated for comments, a»District , · Judge suggested that attachment should be brought within the scope of those provisions. His suggestion was as follows:— I "Article 41—After the word ‘an’, I would insert? ‘attachment’ " I l However, this suggestion does not seem to have been accepted. Need for 37.68. We have given some thought to the matter. ·In our view, there is a fygggynt case for adding in article 90 a suit for compensation for wrongful attachment. · wrongful No doubt, as a summary remedy, section 95 of the Code of Civil Procedure, *“"°hm°“'· 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 acta 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 applieds, 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 No. 2155 _ dated 30th December, 1907. National Archives File 1908. Paper No. 11. 3Harkurnur v. Jagarbandhu. A.I.R. 1927 Cal. 247. · *Pannaji v. Firm Senaii, (1930) I.L.R. 53 Mad. 621. Wellammal v. Ayyappa Naick (1914) I.L.R. 38 Mad. 972. (Scope of article 29 of the Act of 1908 fully discussed). , 89Trt rcco:n<:s un- otlrcr specific movable pro- lavvl°ul." perry. _ It corresponds to article 48 and 49 ot the Acts ot 1908 and lh77. . In the Act ol 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 A the present ipurposc. sincc they do not throw particular light on many important ingredients of the present article, ln_1877 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 Rcportl on the Act of 1908 recomrnen~ 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 mw as renders relevant a discussion of two cases of application of the article to money lv m<>¤¤Y w in specie (as against simple money claims). The tirst case is an Allahabad one,"] Spw°` in which a company had instructed its bahkcrs to make payment of excise duty amounting to Rs. 50,000 in the sub—treasury and got the challan duly stamped and signed by the accountant and the treasurer. The amount paid was, however, e dcfalcated 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 A of the excise duty for thc second time. The company then tiled a·suit for re- 'covery of the money from the State Government. The Allahabad High Court. inter alia, held? that theisuit was neither for certain "spccific 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 1908 did not apply to the case. Holding that the suit was based on the liability of the Government i 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. ln 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 I 1Law Commission of India, 3rd Report (Limitation Act 1908) page 45, para 121 and page 83. articles 1.2.6. r ` *Stme of U.P. V. Hindustan Lover Ltd.. A.1.R. 1972 All. 480. 3C`}randraIrhan Brmsilal v. Bikmrer Municipality, A.I.R. 1975 Raj. 35. _ .25/—14MofLJ&CA[ND/S3 A ' 186 89rn maroizr or mw comm:. or inout ON me uMirAr1oN Aer, 1963 · (Chapter 37—~Arti<·les 72 to 0/: Suitr ro/ating to lor/‘. C`/mpror 38 Aria-/t·s 92 tn 96: Suits re/ating to Trusts and Trust I’ropert_1‘.) 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 V 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 Il3) of the Act of 1963 have . been _taken as the articles possibly of relevance. No change 37.73. In this state of the ease-law——which does not rule out the residuarv needed. . . . · . . ° p art1c1e—we do not consider lt necessary to amend the wording of article 91. crrmrrnn as ‘ ARTICLES 92 TO 96 : SUITS RELATING T O ' TRUSTS AND TRUST PROPERTY Article 92. 38.1. Article 92 reads as under : . "92. To recover possession of i1nmo— Twelve When the transfer becomes known vable property conveyed or be- years. to the p1aintiff." queathed in trust and afterwards » ° transferred by the trustee for a valuable consideration. The article corresponds to a part of article 134 of the earlier Acts. In the earlier Acts, the relevant articles were as under: Article 134 of tltc Act 0f 1908. . .134. To recover possession of immo- Twelve When the transfer becomes known vable property conveyed or be- years. to the plaintiff. [Before 1929, the queathed in trust or mortgaged third column read, "the date of the and afterwards transferred by transfer]" ` the trustee or mortgagee for a valuable consideration. Y 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. ` qucatlted in trust or mortgaged and afterwards purchased from 4 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- 3 , gagee in good faith and for value. ` The amendments effected by the 1963 Act are in consonance with the recommendations of the Law Commissionh _ _ - 1Law Commission of India, 3rd Report (Limitation Act, 1908), paragraphs 122-130. ¢· 89ru Rrvonr or mw comm. or mon. on me LIMITATION Aer, 1963 187 (Chapter 38-~Articles 92 to 96: Suits Re/ating t0 Trusts and Trust Property.) . 38.2. ln a Calcutta case' decided with reference to article 134 of the Act of §¤¤¢€SS¤F 1908 as it stood before l929, a trustee executed on 8th February, 1910 a lease ms(°°' ( of the trust property in derogation of the trust. and subsequently appointed a _ successor trustee who tiled a suit to set aside theilease 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!. I I I · 38.3. No other points requiring discussion from the point of view of possible Il;°d°l5¤¤8¤ i need for amendment in the article have come to our notice. In this position, no c c ' amendment of the article is called for. 38.4. Article 93 reads as under:— _A“l°l° 93- A "93. To recover possession of movable Three When the transfer becomes known property conveyed or bequeathed years. to the plaintif1`."‘ in trust and afterwards transferred ` ‘ - by the trustee for a valuable con- sideration. The parallel provisions may be found in aftiele 48A of the Act 1908 and i 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 plaintif1`." deposited or pawned, and after- V ward bought from the trustee, de- ‘ pository or pawnee for a valuable I consideration. Act of 1877 "l33. 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 0f 1871 ·- 133. To recover movable property con- '1"welve The date of the purchase. ‘ veyed in trust, deposited or pawn- years. · ed and afterwards bought from the trustee, dep nsitory or pawnee, in good faith and for value. Article 48A in the Act ol 1908 was inserted by Act 1 of 1929. It corres- · . ponded to the old article 133 which was repealed, with the third column chan- ged. The starting point of limitation was changed from "the date of purchase" to "when the sale becomes known to the plaintiff". Certain verbal changes were · made in 1963, when the Act was rc-enacted;. . Kh . T · I d Gl hr d ,·A.I.R. 1940 Cal. 228, 232. ’ $¥Z.l'Z7I§Z.. ..§'.i§?.i..Z... §Z"€Z.‘7'L. M.'”$.l.i'Z’....”;’.......»...t.. Ct....., A.I.R. 1940 Mai. 920. 923. [Decision on that part of article 134 which now forms part. of article 61(b)]. 3Law Commission of India, 3rd Report (Limitation Act, 1908), para 122. 188 89rit ituvoicr or rtw CUM\tN. or- inoin oN rut. i.ii1ic1nii<>i~i .-tcl", 1963 t ((,'/iaprvr 56 .·trtie·/cs 92 in 96: Suits Refutiizg to lluxis tim! illus! 1’mpci·ty.) No change 38.5. No diliicultics have arisen under this article as enacted 1964, and no °°°d°d‘ change appears necessary in the article. dmldg 94 A 38.6. Article 94 reads as under:~—— and 91 "94. To set aside a transfer ofrimino- Twelve; When the transfer becomes known - vablc property comprised in a years. to the plaintin`." _ Hindu, Muslim or Buddhist re- _ ligious or charitable endowment. made by a manager thereof for a V ’ t valuable consideration. In the Act of 1908, the corresponding provision was article 134A, which was introduced by Act 1 of 1929. lt was identical with present article 94. ` (b) Article 95 reads as under:~ Q "95. To setasideatransfer of movable Three When the transfer becomtx known property comprised in a Hindu, years. to the p1a1ntill." ` 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 hrst time by Act l of 1929. That article was as follows:— "48B. To set aside sale of movable Three When the sale becomes known to property comprised in a _Hindu. years. the p1aintin"." . Muhammadan or Buddhist reli- . ious or charitable endowment. t 2 _ made by a manager thereof for a valuable consideration. $:8;; layglic 38.7. Several States have enacted their own laws to regulate and make better H. ' . . . . . . . V. mmmp provision for the administration ol public trusts. These enactments contain, . inter alia, provisions relating to suits concerning public trusts. Thus, under sec- tion 50 of the Bombay Public Trusts Act. 1950 permission of the Charity Com- missioner is necessary for the institution of a suit. Then. by section 75-C of the Madras I—IinduMRcligious and Charitable Endowments Act. 1959 the right of suit _ has been spccihcally grnntctl to any trustee or any pcrson having an interest in the trust property. _ §§§"£;":g“°“' 38.8. Reverting to the articles in the Limitation Act, article 94-95 of the articles 94 Liinitation Act have not given risc to textual controversies. But we scc no “' 9°‘ reason why articles 94 to 96 should not apply to religious or charitable endow- ments created by persons prolcssing the Sikh or Jain faith. The legal doctrines \ and rules applicable to these endowments are not substantially rlitlcrcnt 1`roni those applicable to l—1indus‘. ‘ We therefore rccomincnd that articles 94 to 90 should he extended to Sikh and Jain endowments also. ‘ lomparc & recommendation as to section 10, supra, V i / S9i‘rr uuvori r or Luv Courts. or INDIA ON illlll Lllrlti.-\'ll<>N Mir. 1963 189 (Ci'iri;>si·i· 35 ,/li'!/r‘l]t*.r 9] to 96; Suits R<·/uziiig to j(i·us·f.r mu! Yiwt 1’l’vpc‘l’·')·’.,l 38.9. Article 9b reads as under;—» Article 96. "96. Bythe manager ofa l~-lindu. F.-lu—:— Twelve The date oi` death. resignation or lim or Buddhist religious or char?- years. removal ol` the tran·;t"cror or thc -r table endowment to recover .p 1+ date of apptrintntent of the plain- session of movable or immovable tiff as maragrr of the endowmlent. property comprised inthe endow— whichever is latter." ` ment which has been transl’cr:·cd by il previous manager for a valu- able consideration. The corresponding provisions in thc Act of NUS were articles {348 and 4 [34C. These articles read as undcr:—~- "l34B. By th manager of zi. Hindu. Twelve The death. resignation or r. moval Muhamrnadan or Buddhist reli- years. ol? the trairsleror. gious or charitable endowment _ g to recover Possession of immova- ble property comprised in the . endowment which has been tra;1s— ‘ ferred by a previous rnanager · for a valuable consideration. "l34C. By the manager of a Hindu. Twelve The death. resignation or removal Muhammadan or Buddhist religi· years. of the seller." . ous or charitable endowment to ` recover possession. of movable property comprised in the endow- ‘ i ment which has been sold by a » previous manager for a valuable consideration. 38.10. Inthe Act. ot l908. these articles were inserted in 1929, resolving thc Hrsi.».·y_ s conflict 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 thc fact that an intcrrcgnum might urisc between the rcmoval of one irranuger and the appointment of 21 successor. und the strcccs· sor should not be haunslrung from tiling ai suit only bccnusc of such intcrrcgnuinf 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 bc thc manager to challenge thc alienation of a previous manager who is no longer in oihce has been retained, as otherwise such ai person would be required to wait for the uppoirrtiiicnt of the successor manager which may E unnecessarily be delayed. ~ A 38.11. The only chuugc required in article 96 is its extension to Sikh ;1ritlRcu,,mm¤du_ . Jain endowments, as alrcatly rccornmcndcd by ust' while considering articles 9****- 94-95. ‘Vid_ru Vrrrrnfri v, Bulrirumf. A_l,R. l922 P.C. 123. *,4 hdr:} Rahim v. NHl'G}'[ll! Dos, I.L.R. H922} 50 Cal; 329 (P.C.). - Bmw Commission of india, 3rd Report tLimitation`Act, l909)_ page 46 perm ig; ‘Articles 94·95_ _ lPara 38.8 supra. 190 8911-1 luzvolatr 01* LAW Comm. or mom *11115 on Ll1\11'l"/\'lQl()N A01`. 1903 (C/mptcr 39--—-Artic/cr 97 to I /2: Suits Rc/ating to .’\{i.sce//anonus A/uticmn) CHAPTER 39 P ARTICLES 97 T0 112 : SUITS RELATING T0 MISCELLANEOUS MATTERS Article 97. 39.1. Article 97 reads as under :— "97. To enforce a right of pre—emption One When the purchaser takes under the whether the right is founded on year. sale _sougl1t to. be impeached. » law or general usage or on special physical possession of the whole e contract. or part of the property sold. A 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? The corresponding article in the Limitation Acts of 1908, 1877 and 1871 was article 10, which in the respective Acts read as under : — Act 0f 1908 "10. To enforcearight of preemption One When the purchaser takes, under whether the right is founded on year. the sale sought to be impeached. law, or general usage. or or. spe- physical possession of the whole · cial contract. _ of the property sold, or, where thc ‘ stubject of the sale does not admit of physical possession, when the instrument of sale is regi·stered." Act of 1877 V . Same as in the Act 0111908. · Act of 1871 "l0. To enforeearight of preemption, One When the purchaser takes actual whether the right is founded on year. possession under the sale sought law, or general usage, or on spe-- to be impeached." cial contract. Pre-cmption . 39.2. Though the article recognises the right of pre-emption in law as well l“w’· ` 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-emption have now been amended, abolish- ` 1 ing that right. No change 39.3. 'Though there has been some controversy regarding the date when "°°d°°‘ ‘ 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. — Article 98- 39.4. Article 98 reads as under 1- . i “98. By a person against. whom an One The date of the final order." order referred to in rule 63 or in year. ` rule 103 of Order XXI ofthe Code of Civil Procedure. 1908 or.an order under section 28 of the Presidency Small Cause Courts 89r1—r REPORT or LAW coMMN. or 1NDIA ON THE LIMITATION ACT, 1963 l9l (C/zaplcr .59 .#l1·!ir·/as 97 to //2: Suns Rc/ating to .ll[l.S`L'('//ll/ICOIIS Matters.) Act, 1882, has been made, to es- » tablish the right which he claims _ to the property comprised in the Order. i J 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 or”Civi1 8 Procedure, 1908, on a. claim preferred to, or an objection · » made to the attachment of, , property attaclrcd in cxceu— . tion ol` a decree; . (2) Order under section 28 ol` the Presidency Small Cause Courts Act, 1882. "1 1A. By a person against whom an One The date ol` the order." order has been made under the year. , Code of Civil procedure, 1908, ti pon an application by the holder ` ol` a decree for the possession ol` immovable property or by the pu- rchaser of such property sold in execution ot` a t ecree, complain- ing of resistance or obstruction to the delivery of possession there- · ot`, or upon an application by any i 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 :iinal’, qualifying the word ‘order` in the third column, did Starting not occur in article ll 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 Kerala High Court} in a Full Bench judg- ment, by majority, decided that ‘1imitation 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} Whycuttusari Church v. Sici/yamma. A.I.R. 1963 Ker. 137 (F.B.). 192 89rH 11A on THE L1M111xT1oN A01`. 1963 (C/zaplcr 39 Artlclc.r 97 to //2: Suits Rclrzting to Misco/lzwcwzs Nrtitcrs.) ‘ 39.6. The Kerala Judgment, being a case arising out of the old Limitation ` Act, would not tl1row light upon the interpretation of the expression ‘tinal order’ now occurring in the third column of article 98 of the 1963 Act. The use of the word ‘iinal’ 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. l . 2;€bl{ém58· 39.7. The very important amendment made in 1976 in the Code of Civil Pro- amended in ° cedure, 1908, concerning Order 21, Rule 58, deserves to be noticed at this place. *976 This amendment sustantially implements the recommendation of the Law Com- _ missiom in its Report on the Code. 1 §I;’;‘°;';$m$§Cd 39.8. Under the amended Code of Civil Procedure. there has been a drastic gada C 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 vcry [argc numhcr of cuscs, lia- ` ble to be set aside by a regular suit. The present_law, after 1976, on the other hand. making a signiiieant departure in the method of disposals and adjudication of such j claims and objections. contemplates a full enquiry into all questions. including i 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? i Scope of t 39.9. ln other words. the scope of article 98 is now confined to those very ::::5IfiI3?l€d· 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 claim 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 s11it to assert a claim in respect of the attachedvproperty is very limited after the amendment of 1976. Change _ 39.10. lt is desirable to amend the article in the light of the changed posi- L QQ 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.21 C.P.C. A 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 tiled to challenge any attachment. lSee para 39.7 infra. r 2Law Commission of India 54th Report (Code of Civil Procedure. 1908), Chapter 21. ~ 3SOl(flI€l'H Sicclmel & Alloys Lid. V. V.M. Steels, Madras, A.l.R. 1978 Mad. 270; 1.L.R (1978) 3 Mad. 140; (1978) 1 M.L_1. 468. SQTII REPORT OT I.i\\V COT\I\f\I. OF IN`DIA ON THE LIMITATION ACT, 1963 " 193 (C/iuptcr .>’9»-~.»frt1'c/cs 97 to //.P; Suits Rc/ating to Jl[iS`('(3//ll/lC()'t.S' ll/[utters.) · 39.11. In the light of the above discussion. we recommend that article 98 l¥g;<‘l°’l°“‘l¤‘ . i . should be revised so as to read as under:--- V 'T98. BY a Person against whom an l One The date ofthe hnal order." order re/erred to in sub-ru/0 (5) Year. of rule 58 of Order XXI in the - First Schedule to the Code of Civil ‘ Procedure. |908 or an order under ` section 28 of the Presidency Small Cause Courts Act. l882. has been made. to establish the right which he. claims to the property com- prised in the order. w/zerc site/i ri suit is pe·rnz1's.rib/0 in /0 w. 39.12. This takes us to article 99. which reads as under :— miicle 99. “99. To set asidea sale byacivi? or re- One When the sale H confirmed or venue court or a sale for arrears of Year. would otherwise have become final ‘ Government revenue or for any and conclusive had no such suit demand recoverable as such been brought." ‘ arrears. g Article 12 in the Act of 1908 read as under:— i "l2. To set aside any ofthe foliowing One When the safe is confirme‘d or sales : Year. would otherwise have become (a) sale in execution of a decree ` final and conclusive had no such of a Civil Court; suit been brought." (li) sale in pursuance of a decree or order of a Collector or other officer of revenue: (c) sale for arrears of Govern- ment revenue. or for any ’ demand recoverable as such arrears; (cl) sale of a patni taluq sold for current arrears of rent. · ExpIam1ti0n.—In this article. ‘patni’ includes any intermediate tenure sale- V 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 _ p 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 judgmenf 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 ll.ak»/zmandas v_ ]\'tll'IlIl(7]({/iilll, AIR. 1957 Ker. 126. T 2LaM/zmadu v. Ramudu, A |.R. 1939 Mad. 867. 26-14 M of LJ & CA/ND/83 » . \ 194 89TH REPORT OF Lxw COMMN. or mom ON THE LIMITATION ACT. 1963 (Chapter 39¥ArIic!es 97 to [/2; Suits Refrzting to llli.rt·e//rzrieous 11/{ut1‘er<‘.`t ` make a prayer for setting aside the sale in a suit for recovering possession of his share and article 12 of the Limitation Aetj l9()'¥ (present article 99). can have no V · application to such a case. I The Punjab High Court.' dissenting from the above view. has held that in such cases the sale is a voidable one and not rt void sale. with the result that such a suit by a Hindu son to have set aside a court sale in execution of a decree against his 'father is governed by article 12(a) of the Limitation Act. 1908 (pre- A sent article 99). A Travancore-Cochin case takes the came view?' A Supreme Court decision, while touching the point. does not settle this particular conflict? V Condictj- 39.14. The conflict dates back to the days when the draft Bill of the 1877 Act ;];°:fn:°:;j:;l was circulated for comments. The problem was mentioned in the comments on the 1908 Bil]. CQm¤P¤¤F$·r 39.15. The District Judge. Cuddapah. commented‘ in 1877 as under. when District . . . . . Judge, offering his suggestions on the Bill then circulated :—— Cuddapah t_1877). "I have known repeated instances in which a suit brought really for the establishment of ·.me’s right to own and possess an immovable that has been the subject of a court sale has been wrongly dismissed as barred bythe 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. I think it desirable to introduce (the section) into words descriptive of the nature of such suits. ln any case. something should be done to remove the impression that exists. · A V 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 ever that immov- able. C cannot recover possession unless he sues within one year from the date of the sale being confirmed? · "The starting time tin this articleil3) appears to me to he 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 a dispute about the regula- rity thereof actually arises and not always then." . CDmmcmS__ 39.16. Thirty years thence. when the Limitation Bill, which led tothe Act of . Divisionai 1908 was circulated, the Divisional Judge. Nagpur} made the following com- jgséfjnr i ment:- j (won "Defendants frequently argue with subtle plaixsibility 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 tl··: 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 exnect- 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 ' (1.L.R. 25 Bom. 337: 1.L.R. 32 Cal. 296) as settling the controversy." ‘Ajir Singh v. Hem Raj. A.1.R. 1956 Puniab 139. A *NeIIakanm Iyer Vnnchis·u·nrn Iyer v_ I\7araycma· Iver Venkitamhha Iver, A.l.R_ 1956 Trav. Co. 262. Waqirchand v. Haruam Kaur. AJR. 1967 S.C. 727. 730 [See para 39.17. infra.] ‘·J. H. Nelson. Fsq. District Judge. (`uddapah to the Ofliciatinz Chief, Secretary to Government. 2nd April. 1877. No. 34. V 5Npte by Rai Bahadur Sharat Chandra Sanval. Divisional Judge, Nagpur, Accompani- ment to F_S.A. Sloccck Esq., LCS. Chief Secretary to Chief Commissioner. Central Pro- vinces dt._19-12·1907_ No_ 2063. V. 4-5. National Archives File on Limitation Bill, 1908. 89111 rusrossr o1=-_L».w‘comm. osmnul ou me LlM.l'l'A'I`ION Acr, 1963 . 195 ` (Chapter 39-—-Articles ,97 to"112: Suits Relating to Miscellaneous Matters.) . -’ Unfortunately, the National Archives lile does not show what action was Y '_ taken on these comments, but the problem even.'now survives, because, tmder ` section 6 of theHindu Succession_Act, 1956, the rights ofoa member of nary in the Mitaksharalcoparecnary property have been saved. » ( V 33.17. The current conflict of views has been already adverted to‘. Bvenwpmne though the Supreme.‘Court has not, in so many words, ruled on this subiect.0°“"‘ °“‘= there are observations inone case' to indicate that the Court such a _ saleasavoidableonez--, `, V . qv - V i * . "It is the existeneejof the father’s -debt7tl1at enables the creditor to sell V . _ the property in execution of ·a money_deeree against the father. Likewise. " if a mortgage decree against the fathers directs theysale of the property for ‘ , the payment of his debt, the creditor may sellithepuoperty inexecution of V _ the decree. It is `true that the procedure for the of a money decree is different from that for the enforcemlent of a decree, A money ` decree is executed by attachment and sale of ,debt0r’s property. For the execution of the mortgage decree, an attachment -1of the property is not neces- ‘ the property is sold by force of the decree." _ r * . . -“But' this in does not adect the pious obligation V of a Hindu to,pay*i"l‘li¤»,fatli¤t?¤-_debt·eAs inthe ¢¤¤»0f ¤ mw under a mortgage is sold for payment of fathefs _ debt.'The father- sell, property for payment of debt. V V It there is no Viroluntairfsale fthe creditor cm ask the- Grim to _ do oompulsorily what have donevountarily. h i _ * that as the father may. in orderlto pay a just, debt, legally sell the`whole ' ' estate without suit; sophie- britt! ¤b¤¤¢ V¤¢h 8 Stk by tl! intervention of 5 suit. See Y. Virasami .4yyar.' .EvenlWhcr¤ the-mortgage isnot for,Iegal_neceesity_or»for payment of tm` antecedent _ ` 5 the creditor can,;in execution ot a for a s · debt which the father is liableto sell- the estate _ V obtaining a personal decree against him,l,*Atter»tl,ie-{ale· has taken place. the ` son is bound by the sale. un`less,ke shows thatthe debrwus iron-existerf or _ was tainted with or illegality.” V ` » ‘ i' V V . i 39.18. Without prououncing upon tlieporrectness or otherwise ofnhedivera gent -views subject, itseems*`to the should be this regard. Fnrthenjlit is nqtgpropet ibut ¤W¤¥d ¤f ¤IP¤¤*lbl° Quit W a Mitakshirra »ta§hily__shonld over Qhis head fora Cq¤g¤quently,=we: article T Sllmild Nl upqgp; .,, . ··99. Tosetaside-4{ A f », a asale · "·¤iv1r¤i ° I e .90***. i- co reenan im CI: i s¤5'3¤~v e verued by tkejj-___ i;;?] . Mw M ¤¤¤¤Mi¢¤V · i »;;é·; i obtained agabttt-this 5 * .. . _ __ _ » 5¤9li§m¤n —¤uEi l . Jiu . I' r — ,. . .,.. ...» · ,,,4, .,· .»_; » _., ‘;:T"3g*2*j . t - -*1=··~···¤··v ··~ *1 . ss , 196 89rrr rtrwortr or rsov eorrirrv. or lNl)lA on mi; rrrrrrtrrox Aer. 1963 (C/tuple}: 39- /lr·rir·/e.¤ 97 to I/2: Suits Ro/ulirg to lll/scc//czrzevets Matters.) (br a sale for arrears of Got ern- _ ment revenue oi`£1.11y demand recoverable as such arrears. - Article 100. 39.19 Article 100 reads as under : » "l00. To alter or setasideany decision One The date ot` the final decision or or order of a civil court in any year. order by the court or the date of proceeding other than a suit or thc act or order of the ofiicer. as any act or order of an oliicer ttl` _ the case may bc._" Government in hrs olhcial capa- city. Articles 13 and 14 of the Limitation Act. 1908 rcad as under: "l3/To alter or set- asideadccision or One The date of the linal decision or order of a civil court in anypro- year. order in the case by a court ceedrng other than a suit. competent to determine it finally." l "l4. To set aside any act or order of Ore `. he date ot` the act or order." _ an ofiicer ol` Government in his year. otlicial capacity. not herein other- wise expressly provided for. ` Parallel provisions in the 1877 Act (articles 13 and I4) were identical: "l3. To alter or set aside a decision or One `l he date ol` the final decision or order of a crvil court rn any pro- year. order in the case by a Court cceding other than a su;t. ` competent to determine i' linally." "l4. To set aside any uct or order of One The date of the act or order." __ an officer ot Government in has year: ofiicral capacity. not herein other- wise expressly provided tor. · ' In the 1871 Act, articles 15 and 16 read as under: "15. To alter or set asidcn decision or One The date ot` the final decision or order of a civil court in any pro- year. order in the case by a court com- eeeding other than a suit. percnt to determine it nnally." "l6. To set aside any act at an officer One The date .>l` the suit." · of` Government in his oflicial capri- yea r. city, not herein otlrerwrrse express- ly provided for. · The two articles were put into one article (in place of articles 13 and 14 of _ the Act of 1908) as article 100. This change had been recommended by the Law Commission} _ Meaning of 39.20. The expression "Ofhcer of GOVCl`llIllCl'lI” (which occurs in the article) . the term is nowhere defined. The Madras High Court“ as long back as 1895 was required ggl,?;[;£m·_ 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: C "Olhcers of Govcmment are, no doubt, public servants. but every pub- — lic servant is not an officer of Government. This is clear from the article ` itself in which thc Court of Wards is expressly mentioned. indicating that I otherwise it would not come within the artic]e." pol‘t, page 57, para 149, - “Orr and another v. Neclumcgum Pillai, (1895) I.L.R. 18 Mad. 395. 89111 l'(‘C//£1Il€OllS Matters.) _ · The Supreme Court. while deciding that the oitice of a Governor of a State is not an "employment" under the Government of India, referred to its . ` earlier rulingsz 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. I _ 39.21. The ditliculty as .o who is, and who is not an ollicer of Government Comments- is not of recent origin. Even when the draft Bill of the Act of 1877 was circulat- glgggrt ed for comments, the District Judge ol Cuddapahl observed; ’ qgnjlglgippah t . _ "Article 15 contains the troublesome expression that 1 objected to, in rcmarking on the new (`ode of Civil Procedure, namely, ‘Oi1icer of Govern- ment’. What it means l have not the slightest idea. Is a District Judge one? Is a Batta Peon? Is a Magistrate`? Is a ‘public servant’ as dehned 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 oliicer of Gov- ernment, and being so brought. must be brought within one year from the date of the Act?" 39.22 Notwithstanding such queries and also the ditlicultics that do arise No new to from time to time, we have come to the conclusion that the insertion ofa dehni-?;ll;‘€,.g‘i%C€r tion of the expression "Ofhcer of Govemment" may create problems. We would or Govern- not therefore recommend any amendment in this regard. mem · * . 39.23. The third column of the article puts the date of the order as the start- Reeommenda- I ing point for the purposes of computation of limitation. It is based on the assump- {O tion that the order in question will be communicated to the aifected party in p<>i¤It1%l`1l1C_lLl(lg1ll•.J11l or recog- the Provinces. or a teeognisance. years. i`l1S2l.l7.CC.” I lil!}/Ag0\`l·II([ v. Ixlrwltzzlvul Ti/at/ and Haryana High Court. A.l.R. 1976 S.C. 2490. "Mr. J. S, Nelson, District lodge. (`tiddapnh —l.ettc1‘_No. 34. dated Ind April_ 1877 to the ofheiating Chiel Secretaiq to Government. National Archives Iile relating to 1877 Limitation Bill. · . 198 89rtt tt` the conveyance." — ln the Act of 1908, article 94 read as under Ze - "94. for property which the plaiutill Three \‘-ltett the piai1;:itl` is t‘c~.to:’c_5 to has conveyed while insane. years. sanity and has knowledge ot the . convcyar.ce." The corresponding provision in the Acts of 1877 and 1871 Acts was in iden- tical terms. A Failure to 39.28. The first point that arises for consideration in connection with this ’“ggc°“;1;:;’"'°‘ article is: if the plaintiff. upon attainment of sanity. wilfully neglects to make en- -·- > . . . . . . . . postpone nm- qutrtes about the state of affairs of his property wlule he was insane, should such ’““g 9* U""? wilful default on his part postpone the running of time'? , i Dr. Whitley Stokes’ in his Anglo-Indian Codes, commented as under:— ` p · "For the purposes of Schedule ll. 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." g 1·1c quoted 4 Suth. S.C.C. Rel. 19:9 Sttth Civ. R. 329; ll i/iid 163 in support of ` A his suggestion. This suggestion about constructive knowledge being made the starting point of litnitation has not. however. been eountenanced. probably because it would lack cxactitudc in tltc matter of proof. We rccotntnend no change as to the start- ing point. ° V ‘Iaw (`ommission ot India. 3rd Report (Limitation Act, MUN). pxtréiol. para IW."? *Stokcs, Anglo-lndian Codes (188*}), Vol. 2, page 949. . . "’ ‘ 89ru nnvonr or Luv orrvxrx. or rrsrrm on Tm: LIMITATION ACT. 1963 199 A (Chapter 39- .»tr‘1‘ii·.'ct 97 rr- ft}: Suits Re/uting·to il4i.vr·i·I/rirrcaru 1l{utt0rS.l - 39.29. The second point that arises is as to the period. which is three years The period, 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 with the argument that the suit should have been broughtwithin three years from the ccs- ser ol` disability. ln such cases the period available would cause hardship. 39.30. We are of the view that the period in article 102 should be increased §g§<>$¤}E¤jd1\· from 3 years to 6 years. having regard to the considerations mentioned above.C,€qSc the We recommend accordingly. ` l Ejirlggalg in . article 102. _ 39.31. Article 103 reads as under:»— i U i [WMC ml ' "l()3. To make goodorrt ;¤t`tlrcgerreral Three The date ot` the trustees death or estate of` a deceased trrrrtee the years. iF the loss has not then resulted. ’ loss occasioned. ley a h·‘·;e—.c1i. nt` the date of the loss.` trust. ` lt is identical with artiele 98 of thc 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 ofthe general Three The date of the trusttc`s death. or estate of a deceased trustee the years. it the loss has not then been occa- loss occasioned by a breach of sioned. tlaedate of theloss." trust:. _ The present article needs no change. 39.32. Article 104 reads as under :— _ _ _ _ Article mj. "l04. To establish a periodically re-- Three When the plzrrntrtt rs tirst refused earring right. years. the enjoyment r»1`tl‘ro right." ln the Act of 1908. article 131 read as undcr:— I . “l31.To establish a periodically re- Twelve When the pla.intiti` is first refused I curring right. r 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 120 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 conflict of decisions as to whether old article 131 (12 years) applied to the facts of a particular case or the residuary article 120 (prescribing a shorter period) applied. has now lost its practical importance. No change is needed in the article. 39.33. Article 105 reads as under ·—~ “ . . ,_ Article 105. 105. By a Hindu For arrears ot` main- Three When the arrears are payable. tenancc. ` years. In the Act ot` 1908. article 128 read as under:——— "128. By a Hindu for arrears of main- Twelve When the arrears are payable? tenance. years. 'Law Qommission of India. 3rd Report (Limitation Act. .1908). Appendix 1, pages 83 and 87 (articles 1- and 38}. - _ 200 89111 REPORT UV Lxw C()\1A1}€. Or INTUA ox uni L1)1l'1`.·\T1(}N ACT. 1963 i (C/mplcr 39 .—1rtir·’e.s 97 to { lj: Suits lf¤1><·>rty. » . lV. Tulasamma v. Sesha Reddy. (1977) 3 S.C.C. 99. 27-14 M of LJ & CA/ND/83 " 202 89rn xuaroar or new comin. or mom on run mnmrion Aer, 1963 (Chapter 39—-Articles 97 to 112-Suits Relating to Miscellaneous Matters.) In the Act of 1871, article 125 read as under: — A “‘l25. Byatlindu governed by the law Twelve The date ofthe alienation." of the Mitakshara so set aside his years. father’s alienation of ancestral property. Property 39.42. The article unedr consideration applies to alienations of ancestral 3’;’°;gc;y property moveable as well as immovableh 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 0r illega- lity. · Period. ` 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. No change 39.44. N0 change is needed in the article. needed Article 110. 39.45. This takes us to article 110, which reads as under :—— "llO. By a person excluded from a Twelve When the exclusion becomes known `oint famil ro erti to enforce a years. to the laintil’l`." _ l_ YP P _J P right to share therein. Article 127 in the Acts of 1908 and 1877 was in identical terms. ” In the Act of 1871, article 127 read as under: · "l27.ByaHinduexcludedfromjoint— Twelve When the plaintid claims and is · _ famiiy property to enforce a right years. refused his si>are." to share therein. Recommendation 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 artic1.°-‘ How- ever, certain rulings have expressed a contrary view. namely, lhat the exclu- sion need not be totali. To put the matter beyond doubt, we recommend that article 110 should be revised as under: A "l10. Byapersontetal/y anclabsolzztely Twelve When the exclusion becomes known excluded from a joint family pro- years. to the plaintiiT." - pertyto enforce a right to share therein. _ . Agticle IIL 39.47. Article 111 reads as under :— "1l1. By or on behalf of any local au- Thirty The date of the dispossession or thorityfor possession of any pub- years. discontinuance." 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. lHw·ajalli Hunia Guundan v. Ramasami Chetti, A,l_R_ 1913 Mad 19_ “Faqir Clcand v. Ha nam ltuur, AIR. 1967 S.C. 727. ?r\’i: nan Sing}: v. Lal Rzadm Pern.'), A.l.R. 1926 P.C. 100. ‘*See V. G. Paniclear v. Velttmvikian, Ai.I.R. 1958 Kel'. 178 (FB). 5Lingang0uda v. _Sangangouaa, A.l.R. 1933 Bom. 386, 392 / ` V ’ . ‘ 89TH REPORT or LAW commu. or INDIA ON THE LIMITATION ACT, 1963 Z0! A A (Chapter 39--Articles 97 to [J2- Suits Relating to Miscellaneous Matters.) 39.48. In an Allahabad case‘ it was held that the word "dispossess" in this g¤i°aJ3"'m9’ A Article should be given a wide` meaning, and even if the defendant was inpomssgcn of possession of the road much before the road come to be vested in the District ;l§;°{‘£_|a:*0?* Board, the District Board should be deemed to have been "dispossessed" of the vesting A 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 vestin . g · . I A contrary view was taken in u Calcutta case? A In our view, it would be straining the language of the Qarticle 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. · _ / 9 39.49. It is, we think, probable that the view taken in the Calcutta decision Sg:“$° ` . will be followed by other High Courts also. For that reason, we do not suggest nudes ’ any clariticatory amendment of the article on this particular point. The point, in any case, may not recur frequently. T 39.50. We should mention another question that is somewhat related to Em? article 111. Various State Acts establishing Municipal Corporations, Zilla Pari- arte; i _ shads and other local authorities contain provisions empowering the local autho- rity to require a person to remove any projection, obstruction or encroachment ` ’ upon a public roads. 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 yiars (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 acouiescene. But a contrary view has been expressed by the Madras° and Lahore’ High Courts. The question primarily · conoems 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 :— Amdo u2` i _"1 12. Any suit (exceptasuit 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- ~ ~ . A ing the Government of the State of Jammu and Kashmir. · t · Article 149 of the Act of 1908 read as fmder:— "149. Any suit by or on behalf of the Sixty When the period of limitation would . _ Central Government or any Pro- years. begin to run under this Act against r ` ‘ vincial Government (excepta suit a like suit by a private peison." ` » · before the Federal Court in the cxercise of its original jurisdiction). A lZila Parrshad v. Ram Khelawan-—A.I.R. 1976 Allahabad 209. ’Dhaiadhari Ghosh v. Union Board of Kendr0g0ria:—A.I.R. 1942 Calcutta 151. ’See. for example, section 172 of the Punjab;Municipa1 Act, Act 3 of 1911; section 179, Maharashtra Municipalities Act, Act 40 of 1965; section 182. Madras District Muni- . cipalities Act. 1920. ‘·TuyabaIi Abdullabhai Vohra v. Dohab Municipality, A.I,R. 1922 Hom. 9. ‘Pyurela1 v. Municipal Committee, Ludhiana, A.I.R. 1955 Punjab 185. I ‘Baseve.vwaraswami v. Eellary Municipal Council·——A.I.R. 1916 Mad. 613. A ’Mrnicipal Committee, Amritsar v. Mt. Guiri, A.I.R.' 1936 Bah. 182. 28+14 M of LJ & CA/ND/83 _ I . _ or - A A ~ 204. 891*11 ruzronr or Law comm. or morn on me LIMITATION Aor, 1963 · (Chapter 39—·Article.S‘ 97 to ll2—~Suirs Relating to Miscellaneous Matters.) (Chapter 40—-Article l13—-Suits 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 @16 P¢l`l0d cf iimitatiw . I Secretary of State for India in years. would begin to run under_th1s ` Council. Act against a like suit by a private . _ person."· V In the Act of 1871, article 150 read as under: r _ "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 f . As the period of 60 years available to Governmenl 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 Commissionh Banks-- ‘ =¤sss=•¢i¤¤ . . . . .. ‘ gonsidered 39.52. In an article published in 1980, a plea has been made to extend the ;;c‘;$;d_ benefit of article 112 of the Limitation Act, to banks and other Hnancial institu- tions, on the ground that in view of the extensive lending by the banks, several A debts are getting barred, and this has happened even though the banks tty to 'A keep all·the security documents relating to the advances alive and enforceable. It _ ` S 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 savethe loans from getting barred under the Limitation Act and this . _ process involves considerable delay and expense. . .. A g 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 makipg at various points (somehow right upto the Cabinet level), and the process is timeconsuming. 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 otiices 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 tiling suits arising out of supply _ of tea to its retailers. It would obviosuly be impossible to extend the conces- ' . r sion to all other cases. - We do not, therefore, favour acceptance of the suggestion. _ .CI-IAPTER 40 - I 113: SUITS FOR WHICH THERE IS NO PRFSCRIBED . PERIOD . Article 113. 40Ll. kArtiele 113 is the residuary article regarding suits and reads as under :—- _ "l13._Any suit for which no period o1` Three Vt’hen the right to sue accrues." l - limitation is provided elsewhere years. ‘ in this Schedule. A · _ . 'Law Commission-di India, 3rd Report (Lim-itation· Act, 1908), page 61, para 162.- *K. Qhalapatr Rao (Law Oliicer, State Bank of India Hyderabad), "Limitation Act, 1963—Art1cle 112: Necessity to extend its benelit to banks", A.I.R. 1980 Journal I6. 89rt—t tuzronr or Law commu. or mma on run LIMITATION Act, 1963 265 _ (Chapter 40-Articles 113-—Sufts for Which there is no Prescribed Period.) ‘ y 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. 4 , this Schedule. _ Corresponding provisions in the Act of 1877 (article 120) and the Act of 1871 (article 118) were identical. lt may bé noted that article 120 of the Act of 1908 provided a period of limitation of 6 years, whereastlie present Act has reduced the period of limita- , tion to 3 years, as recommended by the Law Commissionl in its Report on that . Act. No change is recommended in the present law. _ CHAPTER 41 v ARTICLES 114 T0 117: APPEALS 41.1. Article 114 reads as under :—~ Article 114. ` "ll4. Appeal from an order of acquittal, ~ n (a) under sub-section Ninety The date of the order appealed (i) or sub—section(2) of scc- days. from. _ tion 417 of the Code of Criminal Procedure, 1898 .2 _ (b) under sub-section (3) of sec- Thirty 1 he date of the grant of special tion 417 of that Ccde.3 days. 1eave." a Q In the Act of 1908, article 157 read as under ;~- _ "157. Under the Code of Criminal Six Qt. The date of the order appealed I Procedure, 1898,from an order of months from." acquittal. . In the Act of 1877, the parallel provision was found in article 157, which read as undera- "l57. Under the Code ofCriminal Pro- Six The date of the judgment appealed I cedure from a judgment of months against." acquittal. . · The Law Commissioni 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 Rcwmmcnda. _ verbal change is necessary in view- of the passing of· the Code of Criminal Pro- 3;*3)*;) g¤k¢ cedure, 1973, which repeals and re-enacts the Code of 1898, referred to in the 7 ° mm article; For the reference in the article to sub-sections (1) and (2) of section 417, -a reference to sub-sections (l)` and (2) of section 378 should be substituted, and V for the reference to sub-section (3) of section 417, a reference to subsection (4) L 1Law Commission of lrdtzhgrd Report (Limitation Act 1908),7;;; para 159. *Cf. now section 378 (1) and (2), Cr. P.C. 1973. 3Cf. now section 378 (4) Cr. P.C., 1973. 4 *Law Commission of India, 3rd Report (Limitation Act 1908), page 63, paras 166-167 ‘ and page 87, article 39. ’ 206 89TH REPORT OF LAW COMMN. or INDIA ON THE LIMITATION ACT, 1963 (Chapter 41—·Articles 114 to 117- ~Appea1s.) ` V 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. _ ` Arii¢1=115- 41.3. The next article is also concerned with appeals under the Code or. Criminal Procedure and reads as under:—— "ll5. Under the Code of Criminal Proced ire, 1898-—— . ‘. (a.) from a sentence of death Thirty The date of the sentence. passed by a court of session days. l 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 arf aequittal— (i) to the High Court. Sixty The date of the sentence or order. — 1 , r 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: C "150. Under the Code of Criminal Seven The date of the sentence. Procedure, i898. from a sentence days. of death passed by a court of Session or by a High Court in the . exercise of its original cirminal ` - jurisdiction. 150A. Under the Code of Criminal Seven The date of the finding Procedure, 1898. from a finding days. ` rejecting a claim under section 1 443 of that Code. A _ T 154. Under the Code of Criminal Thirty The date of the sentence or order. ` Procedure, /1898, to any court days. appealed from. A s . other than a High Court- ’ A l 155. Under the ,same Code to a High Sixty The date of the sentence or order ` Court, except in the cases provi- days. appealed i`rom." . ded for by article 150 and article . 157. The Law Commissioni 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 A has been accepted. The Commission also recommended a .unif0rm period of 30 days irrespective of the forum—a recommendation which has not been carried = I out. . . · Recommend? 41.4. The reference in this article to the Code of Criminal Procedure, 1898, ¢i¤9 as ¤° should now be revised and a reference to the present Code of 1973 should be :rtic1e\l15. . . . .» , _ \ substituted m the opening part of the article. We recommend that article 115 T should be so amended. ` `* ———-—-1--——-—-—.·-R.; 1For the earlier history of section 417, Cr. P.C., see Kaushalya Rani v. Gopal Singh,"’ ` A.I.R. 1964 S.C. 260. 262. 2Law Commission of India, 3rd Report (Limitation Act, 1908), page 61, para 163, and / page 88, article 40 (first part). V ‘ _ . 89rrr ruzrorar or LANV comm. or morn ori rue LlM1TA'l`lON Acr, 1963 207 · h , . (C/fGfIl€I' 4l» Arzivfes [I4 to //7 —·Appcr1/s.) i 41.5. This takes us to article llo. which provides lor limitation for civil A1'U¤l¤ U6- appeals as under:- · , "1l6- Under the Code o1` Civil Procedure. 1908 ·- ‘ i ' (a) to a High Court- hom ary Nirleiy The date o1` the decree or order. decree or order. days. » tb) to any other Court trom any Thirty The date ol the decree or order." - ‘ decree or order. days. . _ _A The corresponding articles in the Act o1` 1908 wr ·e 156 and 152, wlricli read as · under:—e is "l56. Under the Code ol Civil l'ro~ Ninety The date of the decree or order A .· cedure, 1908, to a High Court. days. appealed from. except in cases provided for by _ article 151 and article 153. ‘ , 152. Under the Code of Civil Pro~ Thirty The date of the decree or order cedure, 1908. 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 different periods of limitation; a larger period of ninety days for appeals. to High Courts and Z1 shorter period of thirty days for appeals to the court of a District Judge. The Law Commission], in its Report on that Act, took the view that in the light of improvement in the means of V 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, 196,2, 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 rciteratc thc earlier recommendation of the Law Commis- Recommend? 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 m‘°l° 116* earlier Act. It may, to some c:-zlent. 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. . p 41.27. This takes us to article I I7. which reads as under :~~ Amd: H-,_ , "1 17. from a decree or order oi` any Thirty The date ofthe decree or ordcr." 1 High Court to the same Court. days. V Article 151 ofthe Acts of 1908 and 1877 read as under :—»~ "l51. From adecree or order of any of _ Twenty The date ofthe decree or order." the High Courts of Judicature at days. ~ , _ Fort William [Madras] [and Bom- bay, or ofthe High Court of East . Punjab] in the exercise of its ori- ginal jurisdiction. ‘Law Commission of India, 3rd Report (Limitation Act, 1908), page 62-63, para 165 and page 88, article 40, latter part. 203 89111 1P<>5¤! 0f _ dure in view of the fact that we tind that the Government of Maharashtra has, 3[:i:;?,T§?,;_°I 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 difficulties 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 concems (including 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 first entering appearance and then obtaining leave to defend. results in avoidable delay and cost to both the patties. To save the litigant from such hardship, the State Govemment has proposed that in a summary suit when the V summons is served, the defendant should 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 Maharashtra for this purpose, after which amendment, it is expected that thc High Court will take necessary action to amend Order 37 C.P.C. suitably. The High Court, it is stated, has been con- . suited and is in favour of the arnendrrent. The proposal was forwardedby the State Government to the Government of lndia for administrative 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 i of the Government of India, with a request for information as to whether any proposal for amendment of article 118 has been considered by the Commission for amendment of article 118 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 Govemment of Maharashtra as deserving of favourable considera- _ · on. _ ~ nnmfffé. §'aSTiIKT`%?ll‘r?§. Sfdéi h°gi‘SEil€ic£?i’£§‘fi§§aESE tfvrL‘f$rZ€*2lZL`LX%i¤J§: 1}*111} B1ll, l981" introduced in the State Assembly 30 Nov. 1981. t 210 _ 891*1-I kapoar or Luv cox»r·rs2~;. ov rnom or. rm; l.l\1I'l`.\l`|?)N ACT, 1963 / ` (Chapter 42 -~-Articles H8 /0 /39 —Appl'ir·mi0ns in .Suec·Uiec/ Cases.) ' P1'0p¤SAl ' 42.5. Since the proposal of the Government of Maharashtra is a composite alex one, involving an amendment both of the Code of Civil Procedure, 1908 and of i‘¤V¢>¤¤•bl!»’-_ article 118 ofthe Limitation Act, we are not. in this Report, recommending any ' amendment of article l1_8 of the Limitation Act on an all-India basis. (At the _ same time, it‘appears to us that acceptance of the proposal of State Government . of Maharashtra for amendment oi the Limitation Act in its application to that State is ultimately likely to improve the expeditious disposal of Summary Suits, a and our recommendation for the present is that any such proposal by a State s Government- for replacing the various stages of Order 37. rule 3. by a simpler mode of trial should. in principle. beviewed favourably. lf 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 a1l—1ndia basis in the Code of Civil° ‘ _ Procedure, I908. Order 37 and in article 118 of the E imitation Act, 1963. \ Verbal 42.6. A verbal point concerning article 1|?<‘ any be mentioned at this stage. fgdmg The first column of the article describes the application as one "for leave to leave to appear and defend a suit under summary procedure? Powever, 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- / lied in the rules also—Order 37, rule 3tl) to 3(S). Somewhat elaborate amendments may be required in Order 37, Rule 3. ` 1}¤e¤mmeuda· 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- ` ncial 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 A - 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 A an amendment of Order 37 C.P.C., Article 1l8 of the Limitation Act can also g then be amended so as to increase the period to 30 days} A,-uci, ;]9_ 42.8. This takes us to article 119. which reads as under :——— ° · "119. Under the Arbitration Act. 1940~ ` (a) for the tiling 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 ofthe 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 uf`t11G notice of . 1940, to set aside an award or to days. thing of the award. ‘ _ get an award. remitted for recon- . sideration. ’ ‘ K ` K ‘For future action at approprig time.' -—-_m , 89TlI auroirr or naw CUMMN. or mma on rue LIMITATION Acr, 1963 211 ii (Chapter 42--»Artic!es I Z8 to 136: Applications in Spccmed Cases. 178. Under the Arbitration Act, 1940, Ninety The date of service of the notice of l 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: · 4 "I58. Under the Code of Civil Proce- Ten When the award is submitted to the A 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 ofthe 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 ofthe award." . dure, section three hundred and months twenty seven, that an award be i filed in Court. A — _ It may be mentioned that in the present Act, the period has been made uniform. 42.10. The question of the arbitrator filling an award is of interest. In a Arbitrator ` Nagpur case', after summarisiug the case law, the court observed: films ¤*;V¤-fd · in eour . ‘ ‘ ."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 Commissioni in its Report I1aw,C0mmi,_ on the Act of 1908. It recommended that there should be a time limit for the Srvngl Ringo arbitrator to tile the award, and that the period should be thirty days from the S? l9§8_ ° . 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 commentsi received was that the arbi- trator should have no right at all under the Arbitration Act to file an award in 1 court by himself without the parties moving within 90 days or the court ordering . "him to {ile the award in court. . _ Another District J udge‘ opposed the recommendation for curtailing the period of 90·days 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 Bling of an award by an arbitrator need not be accompained by an application? _ _ ,142,12. As to the scope of the words "otherwise invalid", which occur 111 sec- Recommend? tion 30(b) of the Arbitration Act, 1940, the Law Commission? in its Report on gggigsétggu Act, 1940. }Goonda_LaI v. Mathura Dass, A.I.R. 1957 Nagpur 32. p . ‘ 2Law Commission of India, 3rd Report (Limitation Act, 1908), page 66, para 172. B_m*District Judge Shri I. Sambasivrao, Andhra Pradesh Legislative Department lile (1963 I . _ *District Judge, Shri B.M. Nigam, Uttar Pradesh Legislative Department file (1963 Bill). ‘Ci. snare 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 LI &cA;ND/S3 . . 212 89rn. mzronr or Law comm. or morn on rms LIMITATION Aer, 1963 9 V (Chapter 42——Articles 118 to 136: Applications in Specqied Cases-} that Act has recommended that an Explanation should be added to section /80 as iollows:— " "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 malres the statement of the law in the section comprehensive. Article 120. 42.13. Article 120 reads as under :— . s "Under the Code of Civil Procedure,' Ninety The date of death of the plaintilf, 1908, to. have the legal representative days. appellant, defendant or respondent of a decease plaintiff or appellant or asthe case may be. of a deceased defendant or respondent, . made a party. This article corresponds to articles 176 and 177 of the 1908 Act, which read • as under:- V V "l76. Under the same Code to have Ninety The date of the death of the de- the legal representative of a de- days. ceased plaintiff or appellant. _ ceased plaintiff or of a deceased ‘ appellant made a party. 177. Under the same Code to have Ninety { The date of the death of the de- the legal representative of a de- days. ceased defendant or respondent? ceased defendant or a of a de- . ceased respondent made a party. . s Corresponding provisions in the Act of 1877 were contained in articles USA, 175B and 175C,'which we need not quote. Applicability 42.14. The Delhi High Court‘ has held that under section 53 of the Land :1é;_°•;¢=di;¥¤ Acquisition' Act, 1895, the provisions of Order 9 as well as Order 22 of the law_ pw 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 plaintif in a ` regular civil suit. . To permit the legal representative to apply within a "reas0nable time" might encourage undue pendency of the proceedings. However, we are not recom- 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? *Uni0n of India v. Sanwalia, l.L.R. (1975) Delhi 837. ’See discussion as to section 29 and article 137. 891`H REPORT or LAW comm. or INDIA ou rms LlMlTA'l`l0N Acr, 1963 21I (Chapter 42--Articles 118 t0 136 ; Applications in bpecyied Cases.) 42-16. The third column of the article under discussion speaks about the S¤%¥¥€¤B date of death of the plaintiff (or the appellant, defendant or the respondent), as the pim 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 appellantfs knowledge of the death of deceased respondent was irrelevant for the purposes of computation of time under that article. g i However, the Judicial Commissioner, Goa has held‘ that the period of Q 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 t 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 _ by Shri Usgaonkar on the passage quoted above is not correct. The words "thc 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 l the case may be when such heirs or legal representatives have the duty of V 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 p of the Act of 1908. ’ ~ 42.18. Nor does the present position really cause serious hardship. An abate- No change 4 ment that follows on non-substitution can be set aside under article 121, and, in re- ¤°¤d•=d· ’ gard to an application under that article, section 5 of the Act is also applicable. A _ Bonalide ignorance of the death of a party is suliicient cause in this context? 42.19. Article 121 reads as under :—_ _ . ‘ 5 Article 121. 1, "Under the same Code for an order to _ Sixty The date of abatement? set asipe an abatement. days. Article 171 of the Act of 1908 reads as under:- "‘Under the Code of Civil Procedure, Sixty The date of abatement." l 1908, for an order to set aside an aba- days. ‘ q toment. 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.* V *Un·i0n of Indra v. Ram Charan, A.I.R. 1964 S.C. 215, 220 (case under article 121). °P0lp0t0 V. Nilkhrmt, A.I.R. 1972 Goa 31. *0.22. R. 4(5), Code of Civn Procedure, 1908, as inserted in 1976. ‘Order 22. Rule 4(S). Code of Civil Procedure, 1908 as inserted in 1976. ` 214 89rr-r REPORT or LANV COMMN. OF INDIA ON THE LIMITATION ACT, 1963 A (Chapter 42--Articles 118,iv 136: Applications in Spccmcd Czrscsi) A1‘fi¢|¢ U2- 42.20. Article 122 reads as under :—— A "To restore a suit or appeal or appli- Thirty Date of dismissal." cation for review or revisiondismissed 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 1908 read as under:- "160. For an order under the same Fifteen Whpn the application 1`or review _ Code, to restore to the file an days. rejected. _ r application for review rejected in , _ _ _ ,; ‘ consequence of the failure ofthe i · , applicant to appear when the app -... . . . lication was called on for hearing. _ . 163. By a plaintiff for an order to set Thirty The date of the dismissal. " . aside a dismissal for default of days. i _ 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. _ p _ _ , _ dismissed for want of prosecution. days. 172. Under the same Code by the Sixty The date ofthe orderol` dismissal. assignee or the receiver of an in- days. , . solvent plaintiff or appellant for { e an order to set aside the dismissal of a suit or an appeal. " — . A The corresponding provisions in the 1877 Act were contained in articles 160, - { 162, 168 and 171, which need not be quoted. -011 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. - pauuq, w 42.21. Article 122 has been differently interpreted as respects itsapplication g;P;’:guf°§;0k to the restoration of appeals dismissed for failure to deposit the cost of paper I book. The Rajasthan High Court has observed? i or r "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 A Civil Procedure, 1882 and is, therefore outside this article. A This view was also followed by the Patna High Court‘. _ _A ,9 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 Hari Sa/ue v. Madam Mohan Mitter, (1896) I.L.R. 25 Cal. 339, 347. 'J 745 *Minnie Lal v. Mahadea Lal! Murwari, A.I.R. 1949 Pat. 112, para 2; I.L.R. 27 Pat., _ 89ru REPORT or LA\V COMMN. or INDIA om THB LIMITATION ACT, 1963 215 (Chapter 42-Artic/es 118 Z0 /36: Applications in Specaied 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 e 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 I—Iigh Courtz 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 clarihcatory amendment. = V 42.23. The next article—article 123 reads as under:- . Article 123. "l23. To set aside a decree passed ex Thirty The date ofthe decree or where the parte or to rehear an appeal dec- days. summons or notice was not duly creed or heard expartei served, when the applicant had knowledge of the decree." Explamzti0n.——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:—— l °‘164. By a defendant, for an order to Thirty The date of the decree or, where e set aside a decree passed ex parte. days. the summons was not duly served, ` e when the applicant has know- . ledge of the decree." "169. For the re-hearing of an appeal Thirty The date ofthe decree in appeal or, heard ex parte. days. where notice of the appeal was . not duly served when the applicant . · 7 T ` i has knowledge of the decree." 42.24; The Law Commission had, in its Report on the Act of 1908, taken Law Comms- notice of the different interpretations of the expression "duly se1ved" in column 3$1<>¤;hR°l1;<{;* of the relevant article and observed that it would be unjust to impute knowledge gil jeg; ° - - of the decree to ‘a party when the party was not served with summons (in the ordinary manner). The recommendationi 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 :— Article 124 . "l24. For a review of judgment by a Thirty The date ofthe decree or order." court other than the Supreme days. Court. ‘ ‘Baswantarava v. Gurappa, A.I.R. 1968 Mysore 329, 330, 331. ° 2Bimla Devi v. Patitapaban, A.I.R. 1973 Orissa 169, 171 (F.B.). · s 3Law Commission of India, 3rd Report (Limitation Act. 1908), page 67, paragraph 175 and page 88, article 46. · ‘Cf. Kanshi Ram v. Bhagwan Kaur, A.I.R. 1970 Punjab 300. 216 A · 89ru iuzronr or r/xw comm. or 1ND1A ON ruu Liriirmion Aer, 1963 ` (C/luptcr 424. jlrtic/as I /8 to 136: App/icaliorzs in spccyicd cases) Article 161, 162 and 173 ol the Act of 1908 reud us under :~» “‘161. For a review ol` judgment by it 1’i1`teen '1`he date o1`the decree or order. Court o1` Small Causes (other than days. a Presidency Small Cause Court) or by a Court invested with tl1e jurisdiction of a Court ol` ” Small Causes whe11 exercising that jurisdiction. 162. For a review of judgment by any Twenty The date ofthe decree or order. - ofthe following Cour.s, r·amely, days. the High Courts of Judieature at Fort William, Madras, Bombay and Nagpur and the High Court of East Punjab in the exercise of s its original jurisdiction. · 173. For a review of judgment except Ninety The date ol' the decree or order." in the cases provided for by article days. 161 and 162. . Corresponding articles in the Act of l877`werc 160A, 162 and 173, which we . need not quote. ‘ Court Fees 42.26. Articles 4 and 5 of Schedule 1 to the Court Fees Act, 1870 make a ’;‘ge;‘;i°th°' distinction between applications for review of judgment if presented on or after No change the ninetieth day from the date of decree (on the one hand) and applications pre- “°°d°d· 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. Article 125._ 42.27.~Artic1e 125 reads as under:-— · "l25. To record an adjustment or satis- Thirty hWhen the payment or adjustment . faction of a decree. days.’ is made." I · It corresponds to article 174 of the Act of 1908 and to article l73A of the Act of 1877. They read as under:- ‘ Act of 1808 • "174. 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 o1` Court of any money payable ' under a decree or any adjustment of the decree should not be re- corded as certified. . Act of 1877 "l73. For the issue ol` a notice under Ninety The date o1` the decree or order." section 258 of the same Code, to days. _ show cause why the payment or adjustment therein mentioned . . l should not be recorded as certi- . _ lied. Formal _ 42.28., Seine coiitrdversy exists as to the need lor forma] application for applicativu. recording an adoption. ’But the matter primarily relates to the law of procedure and an amendment in the form orjsubstzmee of the Limitation Act would hardly be appropriate. 89m nevonr or mw comm. or morn on me LIMITATION Aer. 1963 217 (Chapter 42· —·Artic/cs //8 to /36: Applications in speeMec/ cases) L 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:- ' f "For payment of the amount of a Six The date of the decrce." decreaby 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:—~ A"l°l° ll? Y "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").2 , · ~ Article 166 of the Act of 1908 was as under z-- A - "Under the same Code to set aside a Thirty The date of the sa1e." 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 date ol`t1ieialc. to set aside the sale on the ground that days.’ ’ » the person whose interest in the pro- perty purported to be sold had 110 saleable interest therein. A In the Act of 1871, article 159 read as under :-—— 4 "To set aside a sale in execution of a 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- gggifffgij missioner, Nagpur} held that the provisions of Order 21, Code of Civil Procedure. ' i 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 coun in realising the assets *Law Commission of India. 3rd Report (Limitation Act, 1908), page 88, article 49. “Scction 98, Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976). °Balaii v; Gopal Mali, A.I.R. 1927 Ng. 262. ~ ‘ ‘AfZal A/i v. Aman Ali, A.I.R. 1914 Lab. 209 _ 218 89TH REPORT OF LAW coMMN. or 1ND1A on Tue 1.1M1TAT1oN ACT, 1963 (Chapter 42——-Articles 118 to 136: Applications in specyierl cases) of the insolvent was governed by article 181 of the Limitation Act, 1908. These A 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. 2;*11*;; t§gBfh° 42.32. Another controversy is concerned with the joinder of parties in an jogndc,-_(,f_ application under 0.21, Rule 92, C.P.C. The Patna High Court has heldl 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, ho1ding" 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 qt Limitation Act in 1963, this article has not given rise to any controversy and the _ above solitary conflict need not detain us. X ( Fmud_ 42.33. Then, there is the question of fraud, be antecedent and subsequent. In antecedent or one case} the Kerala High Court has observed that on principle, if the fraud Subs°qu°m‘ antecedent to the sale was of such a nature as to suffice for the requirements of A section 18 (Lin1itation_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 i 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 doesnot 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. \ ` med of 42.34. A question has arisen whether the fraud of the decree-holder alone or fr-wd 0f of the auction-purchaser alone would be sunicient to extend the period of limita- Gggigcogoldu tion. The Mysore High Court holdss that section 18 (of the Act of_ 1908), could zagignénggé be attracted where the fraud in question was practised either by the decree-holder C ` ' or by the auction~purchaser. In a Calcutta case,' it was held that a judgment 1 debtor was not entitled to the benefit of section 18 for the purpose of making an application under 0.21. 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 suffices 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. _ 1 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:- ’Sumitra Kaur v. Damri Lall, A.I.R. 1921 Pat. 498. Mlladin v. Karimbux, A.I.R. 1955 Raj. 51. 3Mulhan Simon v. Ouseph loaka, A.I.R. 1964 Ker 88, 89, 90 Para 3. · Uagdhar 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 glligfappa v. Bangarappa, A.I.R. 1960 Mys 297, 299, I.L.R. (1960) Mys. 324. 89ru knronr or LAVV coMMN. or INDIA 0N THE r.rMrrArroN Acr, 1963 219 (Chapter 42--- Artic/es H8 to [36: Applications in specyied 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- y 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. Q ,\/42.35. However, we should refer to a connected provision in the- Code of Recommenda- Civil Procedure, 1908, which seems to need amendment. Article 127 of the g8"9§;)t° 021* Limitation Act is concemed with applications, in regard to which 0.21, R.92(2) of C.P.C. p the Code is relevant. The period of limitation for an application under article _ 127 is sixty days, after its amendmentl in 1976. The application is to be accom- A 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 Q days to 60 days? ‘ ' ‘ 42.36. We now turn to article 128, which reads as under :— A*'i°l¢ 128- "F0r 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:- A _ "Under the Code of Civil Procedure, Thirty The date of the dispossession." 1908 by a person dispossessed ot` im- days. . movable-property and disputing the right ofthe decree-holder or purchaser at a sale in execution of a decree to be ' . put into possession. , I . In the Act of 1877, article 165 was in identical terms. In the Acttof 1871 also, article 158 was in identical terms. V A ‘g . 42.37. Certain controversies on this article have ceased to be relevant after N¤ ¢h¤¤I%ed me 1976 amendment ot me Code ot cam Procedure, 1908, 0.21, 11.100. In view '°°°"""°" · of this position, we do not see any reason to recommend any change in the article. ` A · 42.38. Article 129 reads as under :— — "For possession after removing resis- Thirty The date of resistance or obstruc- A"l°l° lu . tance or obstruction to delivery O1` days. tion." possession of inunovable property de- · creed orvsold in execution cf a decree. In the Act of 1908, article 167 read as under:- i "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 decree. ~ V *Section 98, Code. of Civil Procedure (Amendment) Act, 1976. ` zbakshayini v. Madhavan, A.I.R. 1982 Ker. 126 (June). s ]°To be carried out under 0.21, R. 92(2), Code of Civil Procedure, 1908. ‘ 30-14 M of LJ&CA/ND/83 , . ' / 1 220 89ru nnronr or LAW comin. or mma on me Lnnrsrion Acr, 1963 \• V (Chapter 42·—Articles 118 to 136: Applications in specmed cases.) ni the Act of 1878, article 167 read as under :—— 3 "Complaiuing of resistance or obst- Thirty The date of the resistangce, 0bS¤’¤¢· _ ruction to delivery of possession of days. tion or dispossessionf 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·i l ructicn to delivery of possession of days. `tion or dispossess1cn." r immovable property sold in execu- tion of a decree, or of dispossession • in the delivery of possession to the ` _ purchaser of such property. · Startingf 42.39. There is some debate in the case law about the starting point in regard E;,Lg;t$°0¤_ to fresh obstructions. The Madras High Court has held that an application' ‘ for the removal of a second obstruction, made-more than thirty days after aoquien 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 [ 4 I further right to obtain execution. The calcutta High Court held°’ that the auction- It 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 1 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 disscnted from in a Gujarat case} on the ground that though the Bombay ruling was a Full Bench decision the _ · observations in that ruling were obizer. The Gujarat HighCourt 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- - §:;$°mm°“d°°` ’ "130..For leave to appeal asapauper—— (a) to the High Court Sixty The date of decree appealed from. . ‘ days. (b) to any other court. Thirty The date of decree appealed t`rom." ss — days. , V ‘ I ` *Mayappan Cherry v. Mayappari Servai, A.I.R. -1921 Mad. 559, 561. *Burma Sundari Devi v. Kiranshashi Chodhdurami, A.I.R. 1938 Cal. 352 cf. A.I.R.- 1959 Cal. 613, 615 and Kcdar v. Baijnath, A.I.R. 1939 Cal. 494. ’Mukand Babu v. Tanu Sabbu, A.I.R. 1933 Bom. 457 ('FIB.) _ , ‘Manekla1 v. Oehhavlal, A.I.R. 1970 Gu]. 49, 50, I0 Gui. LR. 654. — 89111 iuzronr or LAW ooiuivm. or mom on rms 1.1M1rAr1oN Aer, 1963 221 (Chapter 42-Articles 118 to 136: Applications in specijied cases.) i ‘ Article 170 of the 1908 Act, article 170 of the 1877 Act and article 162 of the 1871 Act read as under:- ` , "l70; For leave to appeal as a pauper T§rty The date of the decreeappealed I · . ays. from. _ 170. For leave to appeal asa paupcr. Thirty The date of the decree appealed V days. against. . ` 162. For leave to appealas a pauper. Ninety The date ot` the decree appealed days. against." - . _ V 42.42. Prior to 1963, a uniform period ot limitation of 30 days was prescribed gggggigg _ 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. i 42.43. We are of the view rharetlie period prescribed for such leave should §§;°1:;¤:)¤d¤· be the same as that prescribed for the appeal, and that this principle should be Article my _ appliedto 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. It 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 A ` 5. ln 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:-— * "130. For leave to appeal as an indi- The some period as is prescribed The date ( gent person to any court. V for the appeal in respect o/`which of decree “ A ` A the leave is sought. appealed ‘ _ from." 1 ·e 42.44. This takes us to article 131. It reads as under 1- ' Article 131. A “To any court for the exercise of its Ninety The date of the dtciee or order or _ ~ powers of revision under the Code of days. sentence sought to be revised." Civil Procedure, 1908, or the Code of Criminal Procedure, 1898. I 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 gre starting point under article 131 needs atten- Case law as tion. In framing this article, it was presumed that the aggrieved person would ":)5:?¤i¤8 ‘ be so connected with the proceedings affecting him that the date of the decree p ` 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 notitied by his counsel about the order affecting him. But this is not 1Law Commission of India, 3rd Report (Limitation Act, 1908), page 89, suggested . _ article 57. 222 — 89TH REPORT or LAW comivm, or INDIA ON rms LIMITATION ACT, 1963 ( (Chapter 42r—Articles 1/8 to 136: Applications in specfed 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 purcxse, was directly connected with the case A relating to theft. A revision was preferred by one Balamal against the order ot seizure of the auto rickshaw. It was discovered that if article 131 was to ( 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 l8(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 construction 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. _ . Recommends- 42.46. With a view to preventing recurrence of the injustice which may re- — "°“· ° sult 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 fol1ows:—— 1 ’ . .1 "When theiapplicant had knowledge of the decree or order or sentence sought '— V to be revised." · » ( In the first column of the article, the reference to the Code of Criminbj v_ Procedure, 1898, should be replaced by a reference to the present Code of 1973. Article 132. 42.47. Article 132 reads as under :— . ' T _ "132. To the High Court for a certi- Sixty The date of the decree, order or ·‘ iicate of fitness to appeal to the· days. sentencc." . Supreme Court, under clause (I) of article 132, article 133 or sub- — clause (e) of clause (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 Cod.: to a High Thirty The date of the order." . Court from an order of a Sub- days. ordinate Court refusing leave to V 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 Proee— days. from." ·dure, 1908 to His Majesty in P Council for leave to appeal. ~ In the Act of 1877, articles 153 and 177 read as under: — "l53. Under the same Code, section Thirty ’ The date of the order refusing the 601, to a High Court. days. certificate. *Balamal v. State of Gujarat, A.I.R. 1970 Guj. 26J29. 30 (1970) Cr. IQ,]. 46. · ` *Harish _Chandra v. Deputy Land Acquisition Ojicer, AIR. 1961 S.C. 1500. 89rH maronr or LAW comms. or INDIA ON THE L1M1TAT10N Act, 1963 223 (Chapter 42»·Ar1icle.r 118 to /36: Applications in specmed cases.) . 177. For the admission o1`a.n appeal to Six The_datc of the decree appealed ‘ . Her Majesty in Council. months against.? _, 42.48. The Law Commission, in its Report on the Act of 1908 observed} §;>;;¤:i¤· that new provisions prescribing periods of limitation were necessary for making ` · applications to the High Court for a certiticate 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 Constitution" "°"· 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 lirst column of article 132 as under:——· ,` ‘ Article 132, First Column (Revised) ` _ "To the High Court for a certiiicate of the mature referred to in clause (1) of article 132, clause (1) of article 133 or sub—c1ause (c) of clause (1) of _ article 134 of the Constitution, read with arable 134A thereof, or under any other law for the time being in force." I ( - 42.50. This takes us to article 133, which reads as under z- A A¤i¢1¢ 133- "To the Supreme Court for special leave to appeal;- . · A (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. i was refused by the High days. ' - Z . Court; (c) in any other case. Ninety The date of the judgment or order." ’ days. v' ` Q There was no corresponding provision in the earlier Acts. , 42,51. The Law Commission had, in its Reports on the Act of 1908, recom- Report of ·` mended a period of limitation of 30 days in respect of applications to the Supreme 2;1gmI‘r:¥si0n_ 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 u§t“l”'°'“° _ 1Law Commission of India, 3rd Report (Limitation 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 89rH REPORT or LAW COMNlN. or INDIA ON THB L1M1rAT1oN ACT, 1963 — (Chapter i42—eArticIes 118 t0 136: Applications in specmed cases.) _ _ suggestion made by the Registrar of the Supreme Court‘ for amendment ofthe i 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 difficulty 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 htness 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. p V V ` Under article 133(b), which deals with the cases of refusal of leave to appeal by e the High Court, the period of limitation is 60 days. Under article 133(c), which A applies “in any other case", the period of limitation is 90 days. The period of I 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 i of the High Court. Once the High Court refuses leave (the correct expression is ` ~ "certit:icate"), clause (b) would presumably apply and the proceeding can.be`1iled_ » 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 p longer period of 90 days, which would, under article 133(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 J 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 benent of limitation whichever is more beneficial to That means that where the date of order refusing a certificate and the date of s 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. - Constitutional · 42.53. We have carefully considered this suggestion, and are in broad agree- £;:;‘f"m” t° 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 r 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(l) and l34(l) 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 C . » cases involving a sentence of death, an appeal lies to the Supreme Court under. · j article l34(l) (a) and (b). even without a certificate. Further, article l34(2) and 9 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 \ Enigmionl Supreme Court under article 136 would, as regards the position for special leave filed in the Supreme Court, be governed by article 133(c) of the Limitation Act.- ‘Letter from the Registrar (Judicial). Supreme Court of India to the Secretaryf Government, Ministry of Law. Justice & Company Affairs dated 28th January, `1'>¤.,\ copy forwarded to the Law Commission by the Legislative Department under its 0.Mj* No. 11 (14)/82/Leg.~I1 dated 24th August, 1982. ‘ 89TH REPORT or LAW coMMN. or INDIA ON THE LIMITATION Acr, 1963 '225 / . . (Chapter 42~Articles 118 to /36: Applications in specdied cases.) _ br in the rare case of death sentence imposed by some special court under statute bynarticle l33(a) of Limitation Act—applications for leave to appeal from judg- e ·ments and orders of the High Court by special leave can fall either under article l33(b) of the Limitation Act or under article 133(c) of that Act,` If the certificate I 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, I ‘ 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 S much later than the date of the judgment or 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 bythe 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 I°C· e [ 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.ss. it enenid be mennened at uns stage met under emene 124A of me $*¢j§;¢ WA. 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" afterthe 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 arecontemplating would be of some practical utility. V - 42.56. Accordingly, we recommend that article 133.of the Limitation Act Reeommeuda- should be revised as under: ‘ ‘i°“· \ "l33. 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 certnicate Sixty The date ofthe order of rejasal. ` , of the nature referred to in days. _ article l34A of the Consti- e A _ tation 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. I 226 89rn savour or LAW coMMN. or INDIA oN_ rms LIMITATION Acr, 1963 ‘ · (Chapter 42—Ar!icles 118 to 136: Applications in specified cases.) i y (bb) in a case where a certdicate Ninety The date of the judgment or order. of fi tness ofthe nature rej2rred days. to in article 134.4 of the.C011s- titution was re/Used by the A High Court, and the order of . rejicsal was passed on the — same date as the judgment or V 7 order in respect of which ` ~ A such leave was applied for. _ (c) in any other case. Ninety The date of the judgment. days. \ Article 134. 42.57. This takes us to article 134, which reads as under : V V A . "For delivery of possession by a pur- One When the sale becomes absolute." chaser of immovable property at a year. A _ _ A ·sale in execution of a decree. · I · I \ Q . Article 180 of the Act of 1908 read as under: ~ · ’ 8 "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. Reduction 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 A 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 T A 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." N<>d¢=l5¤¤z6 42.58. Certain controversies pertaining tothis article have lost their impor- mc ° ' tance after the amendment of O.21, R. 97-101 of the Code of Civil Procedure in 1 1976. No change is, therefore, needed in the article. A¤i¢l¢ 135. 42.59. Article 135 reads as under : ` *‘For the enforcement of a decree Three The date ofthe 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 earlierAAct, recommended a period of three ` years in the case of mandatory injunctions. ‘ A Accordingly, this provinon 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—artic1e 13*. ‘ Ai 1Law Commission of India, 3rd Report (Limitation Act of 1908) page 67, para 180. - 2Staternent 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. g 89ru xuaroizr or raw comm. or lNDlA ON run uivrirxrion scr, 1963 227 (Chapler 42-e-Artic/es I Z8 to 136: Applications in spccnied cases;) 42.61. Article 136 reads as under : . Am°l° B6' "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 ’ periods, when default in making ._the payment or delivery in respect of wnich execution is sought, takes place. provided that an application for the enforcement. or \ execution of a decree granting a perpetual injunction 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. 42.62. The Law Commission, in its Report‘ on the Act of 1908, observed as L¤W_ Comm? A under, with reference to article 182 (applications for executions): sums Repo!-t` - "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 ‘ V the decree. Tfre 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 enablingthe execution of a decree ‘ after that period. To this provision an exception will have to be made to the elfectr 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, l(Limitation Act, 1908), pages 64-65_ para 170. r 31-14 M er L!&CA[ND/83 , 228 89TH REPORT OF LAW CGMMN. or INDIA ON THE LIMITATION Acr, 1963 (Chapter 42—»./lrticles 118 to 136: Applications in specntied cases.) Chapter Other Applications) i _ I (Chapter. 43—Article 137 : Orlrer Applications) ;‘;d;g“¥° 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 iind that most of the controversies that once arose now do not survive, the matter having been 7 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. 8 CHAPTER 43 . . ARTICLE 137 : OTHER APPLICATHRIS ‘ ·'¤’¢i<=l¤ B7- 43.1. Article 137 reads as undert- A "l3'7. Any other application for which Three When the right to apply accrues." `· no period of limitation is provided years. A elsewhere in this Division. 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." y of limitation is provided else- years. . where in this schedule or by sec- tion 48 of the Code of Civil Prio- oedure, 1908 (5 of 1908).* - Scope of the 43.2. The recommendation of the Law Commission of India, in its Report: am°l°' 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 rn 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 :— ` · . "60. Other applications for which no' Three When the right to apply accrues." ‘ period of limitation is provided years. ` p by any law for the time being in ” force. . Earlier, by that Report, while dealing with the arnbit of the word "applica- tion" (which was not defined in the Act of 1908), the Law Commission had made* the following recommendations: - ` "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." ‘ SCOP, 01 43.3. The Act of 1963, as enacted, however, .does not carry out fully the aftiqli {37- the recommendation made by the Law Commission in the above mentioned Re- spgma aws‘ port, as regards the residuary articles. A controversy therefore arose whether i 'Law Commission of lndia_ 3rd Report (Limitation Act, 1908), page 67, para 181 and ~ page 90, article 60. J ’Law Commission of India, 3rd Report (Limitation Act 1908) page 5, para 9 and page 90, article 60. 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 229 (Chapter 43~Article 137 1 Other Applications) v A the new article was intended for applications under special laws‘. It was in 1977 ( that the controversy was resolved?. by a decision of the Supreme Court. 'I his 1 * 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 I 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 held? Courts and other bodies. ` 43.4. It is now necessary to refer to another aspect of the article under dis- _,micjg 22-;, cussion. It is connected with the distinction between courts and tribunals. By C°¤S¤*¤¤¤¤- 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 supcrintendence over all courts subject to its appellate ` jurisdiction? \ Earlier, article 227 was in these terms : — "Every High Court shall have superiutendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction? 43.5. The effect of the deletion of the word "tribuna1s" came up in article Tribumj 229 for consideration before a Full Bench of Bombay High Court‘. The Court ‘ observed:-- C · "In the first place, neither the expression ‘court’ nor the expression `[1'1bl.1I131’ _ has been defined in the Constitution and therefore, the dictionary meaning or the normal co·nnotation of these expressions will have to be considered. Secondly, the proposition is,we1l-settled that all courts are tribunals. but all tribunals are not courts. If necessary, reference (may be made to Justice A Hidayatullalfs judgment in Harinagar Sugar Mills v. 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- . 1 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 superintendencc.*’ 43.6. In M. Joshi v. Life Insurance Corporation of India“ 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” Aptjclc 13-;_ to the effect that article 137 does not apply to proceedings before bodies other l~'“"*°*’°¤ r . . . . . . . Act, 1963. than courts (such as quas1—jud1c1al tribunals and executive bodies), could not be A 1As to "app1ication", see Beeravu v. Kathiyamma, A.I.R. 1973 Ker. 226. 2Kerala State Electricity Board v. T. P. Kunhiliumma; A.I.R. 1977 SC. 282. °Athani Municipality v. Presiding Ofhcer, Labour Court, Hubli, A.I.R. 1969 S.C. 1335. *For a review of the earlier cases, see Mirza Ghouse Baig, “Article 135, etc." (1977) 2 M-1..J. 18, 21. 5See also M. Joshi v. L.I.C., (1969) 2 S.C.I. 749. ~__ °S. D. Ghatge v. State of Maharashtra, A.I.R. 1977 Bombay 384 (F.B.).r lHarinagar Sugar Mills v. Shyam Sunder, A.I.R. 1961 S.C. 1669. 8M. Joshi \L Life Insurance Corporation of India (1969) 2 S.C.J. 749. ‘ ’A.I.R. 1969 S.C. 1035 ~ 230 y 89TH REPORT OF LAW COMMN. OF INDIA ON THE LIMITATION ACT, 1963 — (Clzapler 43-- Article 137 :_ Other Applications) effected, for reasons which the Court itself gives in the Kerala State Electriciill Boards 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 clvsed and extension of prescribed period if applicant or the appel- lant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period." 43-8. Before the pronouncement of the Supreme Court in the Kerala State Electricity Board casei the High Courts, by an ingenious application of the prin- ciples of interpretation of statutes, tried to mitigate the hardships suffered by A 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 casesa, 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 iixed 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 tiling 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 Pcrrsvn 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 administrative 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 A t V Tax Act, the Supreme Court observed as under :—— , I "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.I.R. 1977 S.C. 282. · 2Kerala State Electricity Board, A.l.R. 1977 S.C. 282. Hg Q. N_ Kumar v. Sales Tax Commisisoner, U.P. (1973) Tax Law Reports 2307 (Ailaha- Eadhgpfnmissioner of Sales T ax v. Parson Tools and Plants A.I.R. 1970 Allahabad 428, _ 4(jigudtcirilater stages of the case. see infra.), i ’Parson Tools v. C.S.T. (1976) Si I 242, 247. 89ru Rerour or raw comin. or mma on run LIMITATION ACT, 1963 231 l (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." I _ 43.9. ln another ease,‘ 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 i Act to Tribunals. · 43.11. The Allahabad High Court had held that the provisions of section 12 High Court i of the Limitation Act did not apply to the proceedings before a Registrar, cases asuto because a Registrar acting under the Registration Act is not a "Court", as no "°°'ms‘ 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(I) of the Registration Act, 1908. The District Registrar gave the benefit of section 12, limitation Act, to the vendee. The High Court reversedl the judgement. . 4-3.12. The Kerala High Court in U. Chacko v`. P. Marakkar’ 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 llitted 7 between one court and to another. : 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 Courti has held that a Munsiff before whom an election petition is hled, challenging the elections of the Chairman and Vice- Chairman of Village Panchayats, is not a "court"., 43.15. .0n the other hand, in some cases it has been held" that the question _ whether the provisions of the Limitation Act are conhned 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 A whom an application was hled 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 designate: was pressed before a Division Bench? In that case certain property ‘ ‘C..S`.T.U.P. v. Madari Lal. A.1.R. 1977 SC. 523. For comment, see S.N. Iain in (1977) 19 J.I.L.I. 484. _ 2Shiv Charon Das v. Rukmani Devi A.1.R. 1975 All. 374. ` 3U. Chacko v. P. Marakkar A.l.R. 1978 Kerala 161. ‘S. Ganapathi v. N, Kumaraswami A.I.R. 1975 Madras 383. *Nagreddy v. Khandappa, A.I.R. 1970 Mysore J66. “Band0 Banaji v. Bhaskar Balaji, A.1.R. 1972 Mysore `31l. ‘ 7Afhani’s case, supra. ‘ “Raj Chopra v. Sm!. Shanna Devi, A_I.R. 1891 Delhi 18. 232 89m Rnronr or rxw comin or inout or: me rnvnrnrion Aer, 1963 V . p {Chapter 43- Article 137 : Other applications.) U 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 conBrmed by the Lt. Governor of Delhi on 23-12-1971 and the possession of the property was given to the appel- 9 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 Bled an application under that section on 19-2-1972 and pleaded condonation of delay under section 5 of t the Limitation Act, 1963, on the ground that he (respondent no, 1) came to know ` of the sale only on 9-2-1972. c It was argued before the Delhi High Court that section 5 of the Limitation Act was not applicable because the Lt. Govemor before whom the application was Bled was not a court but a persona desigrrata. 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 Summarising 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 difference 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 Bling an application under any Act, vide A.l.R. l970·S.C. 209, A.I.R. 1977 S.C. 282. Such an application alone is required to be Bled 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 ditriculties 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 V of Cooperative Societies under the Bihar and Orissa Cooperative Societies Act, 7 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 Vokkim Fernandes v. Amino Kuplii Umma, A.l.R. 1974 Ker. 162. . ’Kerala State Electricity Board v. T. P. Kunlmlinumma ATR. 1977 S.C. 282 para 21. ’Commissioner of Sales Tax, U.P. v. Madan Lal, A.l.R. 1977 S.C. 523. Uugal Kishore v. Sitamarhi Central Cooperative Bank Ltd.—A.I.R. 1967 S.C. 1494. ‘Ram Sarup v. Gurdeb Singh (1969) Labour and Industries Cases 371 (Punjab). / 89rH Rrronr or LAW comm. or lNDlA ON rms rrM1rArio:~: ACT, 1963 233 ‘ . ‘ (Chapter 43~-Article 137 : Other applications.) is not a ‘civil court’, within the meaning of section 11OF of the Motor Vehicles Act, 1939. ( A B 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 gzggtution Bank Ltd. v. Its 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. 'I`his principle has been followed in later cases, 2-3 but the tests were with reference to statutes other than the Limitation Act. » 43.21. The result is, that while the Bombay High Courti, concluded that the Commissioner of Workmen’s Compensation is a "court", the Madhya Pradesh V High Courts 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 j · .\ 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 - A 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 ·0f 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 "°°d°d- any definition of ‘court’ in the Act of Limitation? 43.24. Nor ddl we recommend any change in article 137 on the above point.-No change ' V r _ needed in *Bharat Bank Ltd. v. Its Employees. A.I.R. 1950 S.C. 188. article 137* l ’Engineering Maza'00? Sabha v. Hind Cycles Ltd. AJR. 1963 S.C. 874. 7 K 3A.C. Companies Lia'. v. P. N. Sharma, A.1.R. 1963 SC. 1595. ‘Rajval>i v. Mackinnan Mackenzie & C0. P. Ltd. A.l.R.,1976 Bombay 278. 5Yashwant Rao v. Sampat. A.l.R. 1979 M.P. 21 (F.B.) p ‘°Indian Iron and Steel Co. v. Shish Ram, 83 Calcutta Weekly Notes 786. ’Certain points relevant to the concept of court have been dealt with under sec. 12. " 234 g 89TH REPORT or LAW coMMN. OF INDIA ON rms L1MirAr1oN Acr, 1963 _ (C/zapter 44—Summ¢1ry of Recommeridarfozzs.) 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 I . expression "i11digent 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 sufficient 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). g [ 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 deal with 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 11.20). , ` — 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 by redrafting 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); 89'FH REPORT or LAW COMMN. or rN1>iA ON THE LIMITATION ACT, 1963 , 235 (C/iap2‘er 44-- Surnnzary of Recommendations.) ‘ * (d) the expression "decree" for the purposes of this section should be donned - to include the last paragraph of the judgment, where a copy of such paragraph is proposed to be used under Order 20, rule 6A, Code of Civil Procedure, 1908 (paragraph 12.13); (e) 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 expression "indigent person" should be Iublrfitufbd for the expression "pauper" (paragraph 13.4). 4 9. ln section 14 (infructuous le5>>=1 ev;w=ca.~clings). the following amendments should be made:~— ` (a) The explanation should be :nlai~ged_ so as to provide that the time reasonably necessary for performing journey from the place where the former civil proceeding was pending to the proper court is deemed to be time during which the former civil proceeding was pending (para- . graph 14.23). (`D) A new sub-section (ZA) sht=ultl_ b.; inserted in section 14, to provide that in computing the period of limitation 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 same party for the same relief, shall be , excluded, where such a 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 tparagraph 14.23). e (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. r ‘· ' (Paragraph 14.23. read with paragraph 4.3.). 10. With reference to section 15 (defendants absence from India), amend- ' ments should be made as under:- ' (a) An Exception should be inserted below section 15(5), to the effect 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 i attachment of a decree does not amount to a stay of execution (para- ( graph 15.19). V (c) Another Explanation should be added to provide that a defendant shall A not be deemed to bc absent from india during any period during which he had to the plair1till’s knowledge, a duly constituted agent in India 32——14 M of LJ & CAINDJS3 _ 236 89TH REPORT OF LAW CDMMN. OF INDIA ON THE LIMITATION ACT, 1963 I (Chapter 44~— Summary qfIRec0mmendati0ns.) . . authorised to institute and defend legal proceedings on his behalf in India (Paragraph 15.19). I l -(d) As recommended by the Law Commission in its 13th Report on the I . e 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). A ll. 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 I _ part of the defendant or the opposite party, as thc case may be, towards the plaintiff or the applicant. as the case may be. which. having regard to some . special relationship between the parties. was unconscionable (paragraph 17.17). V 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- I fined to a suit or application for the recovery 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). I (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.- zimoutns to "payment" of the amount for the purposes of this section. whether or not the negotiable I instrument is subsequently honoured (paragraph 19.12). 13. In section 21 (effect of subsequent addition of parties). the following changes should be made:— » (al 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 provide 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 2l(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 n right or liability relating to the affairs 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 instant.; {T other party (paragraph 21.34). 89TI-I REPORT OF LAW COMMN. or INUIA ON THE LIMITATION ACT, 1963 237 . (Chapter 44» Stmimoi 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). _ e 15. Section 23 (act not actionable without special injury) should be amended V by substituting the words `speciiic damage" l`or the words "specilic injury", and also by adding an Explanation to the cllect 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 23.15). ‘ i 16. With reference to section 2*} (savings regarding section 25, Contract Act, I 1 special and local laws, proceedings under a law relating to marriage and divorce . and the Ease-ments Act), thc following recommendations have been made:- (a) Section 29(3) should be re-drafted as under: "(3) Save as otherwise provided in any enactment for the time being in force providing for the dirroiurioii of a marriage by a decree of divorce, or for the grim: of orlrer moirimonial relief, nothing in thisiAct· shall apply to any suit or other proceeding under any such er:actmem." ` (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 N.E.), with a view to ensuring that no hardship is caused by I the extended period of limitation allowed by section 20(l) of the Act in relation to deeds of further charge (paragraph 29.23). . Articles 1 to S : Suits relating to accounts V 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 unders- (21) 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. rcads with paragraph 32.3). l9. Articles 10 and ll (certain suits against carriers of goods for compensation should be revised as recommended in detail (paragraph 32.17). 338 89TH REPORT or 1.Aw COMMN. or INDIA ON THE LlMlTA'l`lON ACT, 1963 (Chapter 44 —r Summary of Recornrneritialionr.) 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 tire 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 32.35). ' Articles 56 to 58 : Suits relating to declarations I 21. ln article 57 (the general article relating to suits to obtain declaration al;-out invalidity, etc. of an adoption). the first column 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 oO (suit to set aside ti t onster ot property made by i · = 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(Z) 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 6l to 67 (Chapter 35). ‘ ( Articles 63 to 71 : Suits relating to movable property l 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 ( three years is re-iteraied (paragraph 37.6). I 27. Article 74 (suit for compensation for a malicious prosecution) should A 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? A A The recommendation made is to insert the word "dnally" before the word f "terminatsd" (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 par defamation. The starting point 89TH REPORT or LAW coMMN. or lNl)lA ON THE LIMITATION ACT, 1963 2391 (Chapter 4 4 A Summary ojRet·0mmer1tfaIi0HS.V) » 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 plaintif[" (paragraph 37.26). 29. Article 77 (suit for compensation for loss of service occasioned by the ° seduction of the plaintiffs servant or daughter) should be revised as under; so as to eliminate the element of loss of service: "77. For compensation for seductiorz: One When the seduction occurs." . year. ,, , (paragraph 37.33). i 30. Article 78, which prescribes a period of limitation of one year for a - suit "for compensation for inducing n person to break a contract with the plaintiff? should be amended by adding the word "wrongluliy" before the words "inducing a T person to break a contract with tliebplaintiff" (paragraph 37.37). 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 B1 to 83 (certain suits under the Legal Representatives Suits Act, ‘ 1855 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". A (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 iirst 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 . ( 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 J manager for valuable consideration) should be extended so as to cover Sikh and i - ~ Jain endowments (paragraps 38.8 and 38.11). V 240 89114 1·.si·o1u` or LAW coMMN. or lNDlA ON The LIMITATION Aer, 1963 · (Chapter 44Y- —--— Summary ofRecumrizerrr/ati0r1.~‘.) 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 cstablim the right which he claims to the property comprised in the order, where such a suit is permissible in law. 1`lhe 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 pfter the uincnditient of the Code in 1976 - (paragraph 39.11). p I 38. Article 99 (suit to set aside .1 sale by .1 civil or revenue court or a sale for arrears of Government revenue or for any demand recoverable as such arrears) should, in its first column, be revised so as to de:-cribe the suit as a suit to set aside- (a) a sale by a civil or revenue court, including a sale of the copareenary property of a Hindu undivided family governed by the Mitakshara law in execution of a decree obtained against the father, or pf (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 ollicer of Government in his othcial 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 _ A the act or order of the ollicer, as the case may be. lhe third column should be 4 Y revised, so as to substitute the following as the starting point:— ‘ 1 "The date of communication of the tina} decision or order by the court, or · the date of communication of the act or order of the oilicer or, where there ` has been no such communication, the date on which the plaintiff hrst had knowldgc of the act or order of the officer, as the case may bc". (paragraph 39.23). i 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 lirst column verbally amended _ by describing the suit as one by a person, "totally and absolutely exc1uded" 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 114 to 117 : Appeals _ A 43. Article 114 (appeal from an order of acquittal) should be revised, by A, making verbal changes as recommended (paragraph 41.2). 89TH REPORT or I.Aw coivrivm. or INDIA ON THE LlMlTATlON ACT. 1963 24] (Chapter 44-Summaryhf Recommendations.) A 44. Article 115 (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 _ (bl 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. 1908) 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 118 to 136 : Applications in specified cases 46. Article 118 (application for leave to appeal and defend a suit under sum- . mary procedure) prescribes a time limit of l0 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 summary . 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- emment 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. 1908 and in article 118. Limitation Act. 1963 (paragraph 42.7). 47. Tn the discussion relating to article 119 (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. 1940) 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 42.12). 48. Article 127 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 theamendment of the article in 19761. 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 davs. thereby creating a discrepancy with article 127 of the Limitation Act. The discrepancy between the two sets of provisions should be removed bv increasing the time limit V in Order 21. rule 92(2) of the Code of Civil Procedure to 60 days (paragraph 42.35). 49. Article 130 (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 “1’J?l1lp€1`”. the words "indigent person" (paragraph 42.43). 242 89m nnroni or LAW comm:. or lNDIA ON rms LlMlTATlON Aer, 1963 (Chapter 4499 Summary 0f·Rec0mmenJati0ns.) — 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 ( of the decree, order or sentence (paragraph 42.46). i 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 eases 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 137 (Chapter 43). _ A K.K. MATEHEW ........ Chairman -. NASTRULLAH BEG ...... Member 4 - J.P. CHATURVEDT ...... Member P.M. BAKSHI .......... Member (Parr-time) Dated: February 28,1983. MGIPClB—84·-14 M 0f·LJ &. CA/ND/83-29-10-84-2,000. A _;