The Limitation Act,1963

Civil Procedure Code-II

Law of Limitation & Registration

It’s a procedural Law?

No limitation in suit means No Barred to file ?.

◦ (A.S.K. Krishnappa v. S.V.V. Somiah AIR 1964 sc. 227, p.232.)

Limitation applies in Cr.P.C. & Economic (Offences inapplicability of

limitation)Act, 1974?

Passed on 5th October, 1963 and Came into force 1 January 1964

Re adjust and re shaped of law

Basic Notion

It Grants Rights?

Its application to Motor Vehicle Act , TP act, Rent act, Land

Revenue, accounts, declarations, injunctions, tort, trusts, personal

laws (Hindu law), etc.?

Where no such period of limitation then?

(Part X , 3 years will be applicable.)

Contd…

Time of Smriti: No limitation, only law of prescription.

Some shadows of 20 years of limitation was there.

Before 1523 –’ James Statutes ‘ applied & was same Position in

England

India- till 1858 – two system of law of limitation i.e. Royal Charter

& Mofussil Courts (original jurisdiction)

First attempt of Uniform Law of Limitation Act, 1859 (Royal

Charter) came in to operation-1862

Olden times…

Regulation IX in 1871 (Decision of the courts)

Regulation XV in 1877 (made some alteration)

Decision of Privy Council in Vasudava v. Srinivasa, I.L.R. 30 Mad,

326 , Resulted in Act, 1908.

Amended in 1924-25 by civil Justice Committee

Contd..

Limitation: Statute of Repose, peace & justice

Act, 1908: – 30 sections, 183 Articles, V Parts

Preliminary, limitation of suits, appeals and applications,

computation of period, acquisition of ownership by possession and

contains savings

Contd..

Articles-1-149 suits,

150-157 appeals,

158 to 183 with applications.

Period - Ranges : 30 days to 60 years.

Appeals 7 days to 6 months.

Applications 10 days to 12 years

Contd….

Act, 1963- : Some Changes:

31 sections

137 articles in the schedules.

Maximum period of limitation is 30 years-(only three kinds of

suits)

longest period is 12 years in immovable property & trusts and

endowments,

Contd…..

Three years in accounts-contracts - Declaratory suits

One to three years in torts-misc.

If no period of limitation is provided in schedules - minimum

period is 10 days, i.e. leave to appear in summary procedures

Appeal 60 days & 30 days accordingly.

Contd…..

Suits relating to Accounts, Contracts, Declarations, Decrees and

instruments, Immovable property, Movable property, Tort, Trusts

and Trusts Property, Misc. matters, No prescribed period, Appeals,

Applications,

Different Titles, Suits, Appeals etc.

To prevent disturbance in equity and justice

Long enjoyment

(Rights)-Lost by own inaction and negligence…

(Rajendra singh v. santa singh AIR-1973, SC 2537,p.

2542,)

It is interest of the state to end of litigation.

(Boota Mal v. UNI, AIR 1962 SC 1716,)

Object(s)

Grammatical meaning of the words is the only safe guide in

interpretation the statute of limitation.

Interpretation

To the suits and other proceedings which filed in courts (Hari Raj

Singh vs. U.P. Government, AIR 1968 All. 246.)

To the civil proceedings and some special criminal proceedings

unless governed by section 29(2).

No application to Election petitions and self contained code.

Applicability

To all appeals to all courts and certain applications. (Dharma

chand roy vs. Nabin Manda;, AIR 1963 cal. 253 p 254)

Code and Limitation Act read together

(Vidyachandaran v. Khubachand, AIR, 1964 SC 1099 p 1107)

It cannot be applicable in plea taken in defence taken by

defendant.

Contd..

There is no provision for recovery of possession by suit.

Rent act is silent and therefore article 67 applies.

◦ (i.e by a landlord to recover possession from a tenant. : 12

years and when the tenancy is determined.)

(Shakuntala Tiwari v. Hem Chand, AIR, 1987 SC 232 P 1825)

Applicability to Ejectment , suit by landlord against tenant

under the Rent Act

Subsequent changes in period of limitation do not affect the

previous cases.

(S.C. Prashar v. Vesantsen Dwarka Das, AIR 1963 SC 1356 P 1892)

Statute of Repose

Each article has its own phraseology for fixing the time from which

the limitation begins to run.

Courts have only determined the date by the language of the

article and sections

Cases of Default

It is retrospective in operation?.

( Ram Prasad Ram Narain, AIR 1966, CAL. 488)

- If nothing contained in the new act..

1. It was not time barred on the date when new limitation act came in to force,

(……new act time period is shorter…..) previous act will applicable….

2. It was not time barred on the date when new limitation act came in to force,

(…..But in new act time period is not shorter (longer), new act will

applicable…..).

The limitation act can not be applied retrospectively.

(Kotha Transport limited v. state of Rajasthan, AIR 1966 Raj. 136 p 140)

Retrospective operation of the Act

Not applicable to the Art. 226 and 227 except to borrow the

doctrine of laches.

(Badurka Collgge v. State of A.P. 1997)

Laches essentially alleges prejudicial delay and unfairness in the

context of a particular situation.

Another way:

Laches can sometimes be applied even in a situation where a

lawsuit / petitions has been commenced and any delays would

otherwise be reasonable. (In favour of petitioner)

Applicability of limitation in constitution of India

Legislative changes:

In sub-section (1) Word ‘Indian’ has been omitted.

Word ‘and’ is omitted at the end of the sub-sections.

Part I, Preliminary

Time having commenced to run, will not stop

The bar of the statute must be opposed by the debtor

The law of limitation as a part of lex fori:( law of place of action..

not place where contract made..)

Principles on which law is founded

It is bar the remedies not extinguishing the rights.

Rules of limitation

Courts are bound to follow the limitation act –

(Indu Bhusan De v. State of W.B. AIR 1972 cal. 160 p. 171)

Courts are bound to follow the limitation act

The rule of limitation applicable for execution of a decree of a

foreign court…..

Law of limitation is mixed question of law and fact?

( Dilwati Devi vs. Central Colafields Ltd. ).

Foreign court decree and execution

Legislative Changes:

Old act: ‘contained in section 4 to 25 inclusive’

New act: ‘contained in sections 4 to 24 inclusive’

Old act: ‘period of limitation prescribed therefore by the first

scheduled’

New act: ‘prescribed period’

Part II – Section 3

It is a duty of the court to look the limitation though there should

not be a ground raised by the defendant.

Ground of Limitation….

Section 3 places a statutory obligation on the courts to examine

whether the suit is filed within limitation or not.

(Syed Quadri v. M/s. Tara pharmacy, AIR 1966 A.P. 136 p 137)

Time barred suit

Dismiss time – barred proceedings even though it has not been

set up as defence.

If inferior court decided and higher forum came to know some

adverse plea, case may be send back to the inferior forum to

decide again.

(P.R. Seetharaman v. Government of Tamil Nadu,AIR 1988, Mad. 45

p. 48, 49)

Uniform view of the courts

Section 3 - it is statutory provision so it can take as a preliminary

issue.

But if it (Limitation period) depends on the oral evidence of the

parties then it is preferable not to take as preliminary issue.

(Serual Central Waqf Board v. Gopal Vishrad, 1991, All. L.J., 190 p

196)

Statutory Bar to file suit

Limitation may be a ground for rejecting a suit already instituted,

and appeal preferred.

(Essar Consturction v. N.P. Ramakrishna Reddy, 2000, (6), SCC 94

p 101)

Question of limitation in Appeal

If pure question of Law, it can be raised in appeal.

Plea of limitation

Appeal under HM Act, though no time limitation in the said act,

limitation would be apply under sec. 3 of the Limitation, Act.

(Debatable, General Clause of 3 years)

Limitation in HM

Plaint is filed in the court of principal civil jurisdiction with

application for transfer to subordinate court… and there after it is

transferred to the sub ordinate court and registered….. the date of

presentation of the plaint to the court of principal jurisdiction is to

be taken in consideration?

Date of Presentation of Plaint

Amendment must be refused, where plaintiff seeks to amend, by

setting up a fresh claim, in respect of a cause of action…Become

barred by limitation. (can not change cause of action on later

stage)

(Pingonda patil v. Kalgonda shidgonada patil, AIR, 1957, SC 363, P

366)

Amendment be refused

When the receipt of the judgment is actually received, from that

date the time for limitation will be started.

( Rajindra Ram v. Coal india Limited, AIR 1997 cal. 289 p. 295)

Date of Receipt is the date of filing the appeal

Where there was a delay in filing an appeal---- –Reason was

collection of money from large numbers of petitioners interested

in filing the appeal----this is not a reasonable ground.

( Benarsi Das v. State of U.P. 1956 SC 520 P 522)

When no sufficient ground

Application of sec. 3 when sec. 6 (Legal Disability) - inapplicable.

(Lalchand Dhanalal v. Dharamchand, AIR, 1965, M.P. 102, P 107)

Sec. 3 and Sec. 6

Distinction between two classes of cases:

1. Court decides a question of law pertaining to the jurisdiction.

&

2. It decide a question within its jurisdiction.

(Manindra Land and Building corporation LTd. Vs. Bhutnath

Benerjee, AIR 1964 SC 1336, P 1938-39.)

Jurisdiction …..

Amendment must be refused where it effect to the cause of action

-

(Pingoda H. Patil vs. Kalgonda Patil, AIR 1957 SC 363 P. 366)

But, if amendment does not constitute any new cause of action

amendment would be allowed even after the limitation period.

(Goa Cancer Society vs. Dr. Vital Kamat, 2000(4)Bom.,C.R. 445 p.

446.)

Amendment Allowed or Refused

Generally court will allowed plea of limitation in second appeal.

.

Plea of limitation in lower court and higher court (in second

appeal)

May dismiss the matter, though not pleaded by defendant.

Unless matter is covered by section 4 to 24.

(Ashok Khurana vs. steelman industry, AIR 2000, Del. 336 P 339.)

Second appeal will not operate as res-judicata.

(dismissal of appeal… by reason of only Limitation)

(shivarama bhat vs. thimma poojary, AIR 2003,kant.455 p 455.)

Duty of court when plea of limitation is not raised

Plea of limitation should be raised at the first available opportunity

but that does not mean and imply that the party can not raising it

after that. .. not barred in appeal….

(Municipal Council, Ahmednagar vs. Shah Hyder Being, 2000 (2)

scc 48, p 52.)

Contd..

It is the duty of the court.

It can not be find only by submission of the parties.

If suit is barred by limitation, court has no jurisdiction to entertain

it.

Party can not confer jurisdiction by consent.

(Mahboob Pasha vs. Syed Zaheeruddin, AIR 1988 Knt. 83 p. 86.)

Determination of plea of the limitation

Time of institution of the suit by the plaintiff should take in to

consideration and not the time when the counter claim is made in

the written statement.

If time of suit is not time barred, automatically claim by defendant

will be consider in limitation.

Claim of defendant (counter claim)

when not barred by limitation

The statute of limitation only bars the remedy and does not

extinguish the debt (amount). Lapse of time does not extinguish

the right of a person.

(Bombay Dyeing vs. state of Bombay, AIR 1958 SC 328, P. 335)

Time barred applicability

Closed on any day within the meaning of this section, if during any

part of its normal working hours it remains closed on that day.

SECTION – 4

Expire of prescribed period when court is closed

Old Act:

“where court is closed when period expires”

“period of limitation prescribed”

“that”

New Act:

“expire of prescribed period when court is closed.”

“prescribed period”

“on the day” and “court re-opens”.

Legislative changes

This provision does not pertaining to the computation of the period of

limitation.

Section 4 is pertaining to the period of limitation. It also deals with a

plaint filed in a wrong court.

The reference to “court” in section 4 is the proper court having

jurisdiction and unless the case filed in a proper court, sec.4 will not be

applicable to it.

(S.N. jayarama vs. S. Rajgopalan,AIR 1965 Mad. 459 p. 460.)

Scope and Applicability of Section 4

Lex non cogit ad impossibilia, i.e. the law does not compel a man

to do that which he cannot possibly perform.

(Ladulal vs. Keshavdas, AIR 1969 Raj. 112, p. 114.)

Basis of sec. 4

Dictionary meaning of the word closed is not open. Open means

ready to receive or transact business with members of the public.

“A day when court is closed”

This section (sec.4 old and new) provides that where the period of

limitation prescribed for any suit expires on a day when the court

is closed, the suit may be instituted on the day the court re-opens.

(Privey Council in Maqbal Amad vs. Pratap Narain Singh, 62 Ind.

App. 80, AIR 1935 P.C. 85.)

Period of Limitation When court is closed – Bare Text

This section does not extend period of limitation but saves

limitation, if the suit or appeal or application is filed on the day of

the re-opening of the court.

(Report of the law commission on limitation at p. 13)

Sec. 4 does not extend period of limitation.

If Appellant misled by any order of the court in ascertaining or

computing the prescribed period may be sufficient cause within

the meaning of this section.

Section 5

Extension of prescribed period in certain cases.

Old Act:

“extension of period in certain cases”

New Act:

“extension of prescribed period in certain cases”

Legislative changes in sec. 5.

Two important changes:

1. That it applies to all applications except those under order XXI of

CPC.; (it s of Execution)

2. That it applies to all local and special enactments unless

specifically excluded by any of them.

Contd.

Court should not exercised arbitrary power.

Power should be exercised based on the fact and circumstances

only.

In some bonafide circumstances only the court can grant the

condonation of delay.

(Laxmi Devivs. Uttar pradesh state, AIR 1988 ALL. 133 at P. 135.)

Condonation of delay -

General principal

State and private individual both stand on the same footing and

should be treated alike.

Party which seeks condonation must also bear the burden of

showing that despite all necessary steps being taken to file the

appeal within time, it failed due to cause beyond its control.

Absence of negligence.

No strait jacket formula can be prescribed.

(state of U.P. vs. phota, 1991 )

General Principles

Section 5 has not been extended to application for execution of

decrees. Without such a specific extension, a decree holder cannot

have recourse (remedy) to section 5.

General Note

It decide on Affidavits.

Oral evidence generally not permissible.

Application of Sec. 5

Delay in filing the revision could be condoned even on oral request

by the counsel concerned, by stating the reasons for the delay.

(K.G. Mal vs. Sham Bihari Mal,1994)

Condonation of delay on oral request

Two important considerations:

Expiration of period of limitation gives a right in favor of the

decree-holder.

If sufficient cause to excuse delay is shown, the court can

condone delay and admit the appeal.

Scope of Section - 5

This may applicable to the appeals, applications & application of

leave to appeal too.

Condonation is only that applicant satisfies the court that he had

sufficient cause for not making the application within such period.

(S. Raringsui vs. yamgmaso, AIR 1963,Manipur 17.)

Applicability of sec. 5

When Board of Revenue functions as Revenue Courts,

sec. 5 applies.

Opinion of the Court:

Despite the limit of 30 days and despite the finality attributed to the order of

the commissioner, the revision would be entertainable under section 219

read with amended Para 911 of the Revenue Manual and as such the revision

would not only be entertainable by the board of revenue, but since the board

of revenue would function as a revenue court provisions of sec. 5 of act

would apply.

(Jagdish Narain vs. State, 1990, P.20)

Application to

The Revenue Courts

Under sec. 5, the applicant has to show sufficient cause for not

preferring the appeal or making the application, as the case may

be -

It is requirement in the section itself.

(krushna chandra vs. state of orissa, 2003, O.L.R. 306, p. 309.)

Contd.

Observation of court in the case of

(s. Fakhroddin vs. A.L.D. Mohammad, 1994, B.C.J. 409) :

Word ‘within’ is followed by the words ‘ten days’ from the date of

publication. There fore, obviously the time of ten days would begin

excluding the date of publication.

The word ‘within’-Meaning of.

Observation of court:

Court agreed with the view of the learned judge that the

expression “prescribed period” is now defined to mean the period

of limitation prescribed by the schedule and computed according

to the section in the act.

Prescribed period-Meaning of

By the limitation act a period which is required to be excluded

under the provisions of some other act in computing, the period of

limitation cannot be treated as a ‘prescribed period’.

(Govinda padayachi vs. Uthandi padayachi, 1994 (2), civil L.J. 40

at p. 42(Mad.))

Contd..

Sec.5 would not be attracted to a case where an appeal or

objection has been initially filed within the prescribed period of

limitation and the same does not suffer from any infirmity of the

vital nature.

BUT

Delay in refiling the appeal after removing the defects as pointed

out by the court require to be condoned.

(Parvati, Smt. Vs sh. Anand Prakash, AIR 1987 Delhi 90 at p. 96.)

Applicability to

‘Re-Filing’ of appeal

Section 5 of the act does not apply to the original cause of action

(Suit).

(Mahboob pasha vs. syed Zaheeruddin, AIR 1988, Knt. 83,at p.

86.)

Applicability to suits S.-5

“One of the first and highest duty of all courts is to take care that

the act of the court does not make injury to any of the applicants.”

(Rodger vs. Comptoir d’ Escompte de paris, (1871 (3) P.C. 465 at

p. 475.)

Duty of court in condone the delay

Court observation:

It was necessary at the stage to call upon the appellant to produce

affidavit and evidence to adjudicate the matter.

(Sthaneshwar Handmade Papers pvt.ltd. Vs state, 1994 (94) ,165

at p. 167, 168.)

Duty of the court..

Disposal of an application under sec. 5 is itself an independent act

on the part of the court and the order passed by the court gives a

fresh cause of action of the party.

(Eswaraiah vs. S.A. Gaffoor, 1998)

Appeal against condonation of delay - Survival

Once the application rejected for non payment of court fee, the

second application made after expiry of time cannot be revived

and the time spent cannot be considered to be sufficient and

reasonable ground to condone the delay.

(kanthamma,smt. Vs. The special Land Acquisition officer, 2003(2)

Karnataka law journal)

Lack of cogent grounds

The decision in similar matters is no ground for condoning the

delay in filing the appeals.

(surjit singh vs. state of punjab,1991 C.L.J.)

Decision in similar matters is no ground

Illustrative guidelines:

Refusal to CD –

1. Whether is likely to defeat the meritorious matter and the cause

of justice.?

2. Whether the approach of the court would be considered as

highly technical view in the matter under consideration?

3. When a substantial justice versus other technical consideration

are pitted against each other, the cause for substantial justice

deserves to be preferred.

Number of aspects

Whether it is practicable for the court to condone the delay by

awarding reasonable amount of costs ?

Contd.

1. Whether the petitioner has satisfactorily proved “sufficient cause”

for the delay for not filing the petition in time?

2. Was there any negligence or inaction on the part of the petitioner?

3. Whether a valuable right that has accrued to the other party,

which will be likely to be defeated by condoning the delay?

4. Whether the petitioners have arguable points on facts and law.?

(sankaralingam vs. V. Rahuraman, 2002)

In sec. 5 the court has to examine the following aspects

Circumstance …..

The production of medical certificate coupled with the fact that he

had applied immediately for certified copies of judgment and

decree ipso facto would go to show that he wanted to challenge

the eviction decree by filing an appeal.

(Jivamal Jethamal vs. Mohmad Allabdulla, 1991(1) Guj. L.H. p.

376.)

Production of medical certificate-CD

There can be no dispute with proposition that expression

“sufficient cause” used in the statute is required to be interpreted

liberally.

(Union of india vs. swaran singh, A.I.R. 1994, j&k 15)

Sufficient cause - Interpretation

A cause for delay, which, by due care and attention …… if the

party could avoid…… cannot be sufficient cause.

(State Health and Engineering Department vs. District Forum,

Bikaner 1991)

Test for determining Sufficient Cause

It has been repeatedly held by courts that a mistake by a lawyer is

a ground for condoning the delay in filing the appeal. Appeal will

be allowed to file.

(State of W.B. vs. Administrator, A.I.R. 1972 SC 749)

Sufficient cause –

delay in filing appeal due to mistake of the counsel in calculation

The sufficiency of the cause and reality of the cause are two

different things.

In case where the court is called to adjudicate upon the sufficiency

of the cause, it may take liberal view in the matter.

BUT

Where the court is called upon to adjudicate on the truthfulness of

the cause, may be not benefited to the party.

Sufficiency of cause and reality of cause - Difference

Here the assistant director declined to condone the delay on the

ground that the cause shown on behalf of the petitioners was not

believable. (though it was true).

(Kedar vs. assistant director , 1987, )

Contd.

When in the application there is no allegation that the appellant

was prevented from moving the application within the prescribed

period of limitation it will not be permissible for the court, in

exercise of inherent jurisdiction to condone delay.

(Bala Ram vs. State of H.P. 1993)

CD - Inherent Power

If the appeal had, in fact been presented within time and there

has been some delay in making up the deficiency in court-fees on

account of reasons beyond the control of the appellant, an

applicant deserves to be delay condoned.

(State of Punjab vs. Anand Kishore, AIR 1966)

Delay in supplying Court Fee deserves to be condoned

If no prayer of condonation of delay in the appeal or application

there is no option with the court except dismiss the appeal.

(Kailash Dist. Co.op. markiting Ltd, vs. Sher Singh Mehta, A.I.R.

1988 H.P. , p.2)

Absence of prayer for CD

Mere ignorance of the period of limitation prescribed, i.e

ignorance of law, per se is no ground to condone the delay.

(Thakur Dass vs. Aflatoon, 1991)

Ignorance of law, per se,

No ground to condone delay

Where a ground has been urged on behalf of the appellant for

extending the period of limitation prescribed for preferring an

appeal and the court entertains the appeal without making a

specific order, it will be assumed that the court was satisfied

that there was sufficient cause for the delay.

(Balmukund Sharma vs. Board of Revenue, 1967)

Presumption, if no specific order of the court condoning delay

The court has a power to grant time to file petition for setting

aside an award or for remitting the award for reconsideration.

Court has also the power to condone the delay in filing such a

petition. In the instant case as the court granted time to file such

a petition it was held that it implied that the delay was condoned.

(State of Kerala vs. Madhusudan Pillai, 1994 K.L.T. 268,p. 270)

Implied CD

Where it has been averred in the application that the petitioners

under a mistaken advice of the lower court counsel filed an appeal

against the order of the executing court before the first appellate

court and that the same has been dismissed on the ground of non

maintainability the time spent by the petitioner before a wrong

forum it has been prayed, be condoned.

(pannalal vs. Deputy director , varanasi, 1991)

Lack of knowledge and wrong legal advice-sufficient cause

Sec. 5 of limitation act applies where the limitation has been

prescribed under the limitation act itself and since the limitation of

three months for filing an application for setting aside in arbitral

award has been prescribed under sub-section (3) of sec. 34 of the

arbitration act and not under the limitation act, sec. 5 of limitation

act has no applicability and even no “sufficient cause” being

shown by the applicant.

(Jyoti Motors vs. ICDS Ltd., 2002)

Limitation act is not applicable when another act provides a

period of limitation

A pending application on the 1st January, 1963, would be governed

by the provisions of the limitation act as it stood before and not

the amended provisions of sec. 5 which has liberalized the scope

of the application of that section.

(Kachhcha Uraon vs. Chhotan Uraon, A.I.R. 1966, pat. 381 at p.

383)

Applicability of New Limitation Act to pending application

Art. 116 makes it clear that the period of 30 days runs from the

date of the decree. There is no provision in the article that in case

of amendment, time would run from the date on which

amendment is allowed.

Of course in case the appeal is filed against the amendment

decree and related the matters arising out of amendment , the

court would always condone the delay in filing the appeal under

section 5.

(Mohammad Ferozi vs. Mst. Shafquan, AIR 1966 punj. 531)

The date from which time begins to run under art. 116

Section 5 is unavailable to the decree-holder as this section has

not been extended to application for execution of decrees.

Without such a specific extension, the decree holder cannot have

recourse to sec. 5.

(G. Ramchandraian vs. state of Andhra, AIR 1964A.P. 13)

A Decree Holder cannot claim any relief under sec. 5

When the application u/s 33 challenging the validity of the award

was filed long after the expiry of 30 days from the date of service

of the notice. The application is therefore clearly barred by time.

Limitation cannot even be saved under section 5 of limitation act

which is not applicable to an application filed to set aside an

award under sec. 33 of the act.

(Ganesh Chandra Mishra vs. Artatrana Mishra, AIR 1965, orissa

17.)

Limitation Act is not available to set aside an award u/s 33 of

arbitration Act

The scheme of the Indian limitation act is that it only deals with

the application pending before the courts. The word court in sec 5

of the limitation act signifies a “court” in stricto sensu. The quasi-

judicial tribunal and executive authority are not “courts”.

(Prabhakar kandalkar vs. Tahsildar, 2002, Mh.L.J.881)

Quasi-judicial Tribunal

Where a person entitled to institute a suit or make an application

for the execution of a decree, is at the time from which the

prescribed period is to be reckoned, a minor or insane, or an idiot,

he may institute the suit or make the application within the same

period after the disability has ceased, as would otherwise have

been allowed from the time specified there for in the third column

of the Schedule.

Section 6 (1)

Where such person is, at the time from which the prescribed

period is to be reckoned, affected by two such disabilities, or

where, before his disability has ceased, he is affected by another

disability, he may institute the suit or make the application within

the same period after both disabilities have ceased, as would

otherwise have been allowed from the times so specified.

Section 6 (2)

Where the disability continues up to the death of that person, his

legal representative may institute the suit or make the application

within the same period after the death, as would otherwise have

been allowed from the time so specified.

Section 6 (3)

Where the legal representative referred to in sub-section (3) is, at

the date of the death of the person whom he represents, affected

by any such disability, the rules contained in sub-sections (1) and

(2) shall apply.

Section 6 (4)

Where a person under disability dies after the disability ceases but

within the period allowed to him under this section, his legal

representative may institute the suit or make the application

within the same period after the death, as would otherwise have

been available to that person had he not died.

Explanation: For the purposes of this section 'minor' includes a

child in the womb.

Section 6 (5)

In the case of disabled person, sec. 6-8 of limitation act only

applies when the disability is in existence at the time when the

limitation begins to run but time is not saved where disability does

not exist at the point on which limitation begins to run.

Scope of sec. 6

If the limitation once starts, it never stops despite subsequent

disability.

(Devkoo vs. Rama Dogra 1993 civil.L.J. 745)

Contd.

Where one of several persons jointly entitled to institute a suit or

make application for the execution of a decree is under any such

disability, and a discharge can be given without the concurrence

of such person - Time will run against all.

But – If no such discharge can be given – time will not run- until

one of them becomes capable of giving such discharge.

Section 7 only supplements sec. 6 of the act.

Sec. 6, 7 and 8

English common law:

1. The rights of minors were specifically protected, and time will

not run against minors.

2. They (minors) were allowed to institute a suit within a specified

time after the impediment of minority was removed.

Sec. 6 and Minor

Section 6 will be applicable to the motor accident claim tribunal to

condone delay.

MACT and sec. 6

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 disability, and a discharge can be given without the

concurrence of such person, time will run against them all; but,

where no such discharge can be given, time will not run as

against any of them until one of them becomes capable of

giving such discharge without the concurrence of the others or

until the disability has ceased.

7. Disability of one of several persons

Merely because two or more persons are permitted to join

together as plaintiffs under order 1, rule 1, and institute a suit,

they are not persons jointly entitled to institute a suit within the

meaning of sec. 7 of the act.

The court had occasion to consider this question and there was

held that sec. 7 applies only to cases of persons whose

substantive right is joint, and not to persons whose substantive

rights are several,..

Applicability of Section 7

.. though they may join together under order 1, rule 1, c.p.c. , for

the purpose of instituting a suit.

(Muhammed vs Alikutty, 1953 ker.L.J. 536)

Contd.

Under sec. 7 the capacity or incapacity to give a discharge is

intended to relate to legal capacity or incapacity.

If there is any physical circumstance which the law takes into

consideration as involving legal incapacity, then certainly it is

contemplated under this section, for instance , lunacy, minority or

some such thing.

Capacity to give discharge

For example:

An application filed after three years, after the attainment of

majority by the elder brother who was the manager of the family

would be barred by limitation under sec. 7 of the limitation act,

even though the suit was filed within three years of the

attainment of majority of the younger brother.

Hindu Joint Family -

Only Managing Member can give “Discharge”

Nothing in section 6 or in section 7 applies to suits, to

enforce rights of pre-emption, or shall be deemed to extend

for more than three years from the cessation of the

disability or the death of the person affected thereby, the

period of limitation for any suit or application.

Section – 8 Special exceptions

Suit by person under disability:-

From a reading of these sections 6 and 8, it would be evident that

if the minor has, at the date of his attaining the majority, a larger

period than that of three years as provided under the law of

limitation for filing a suit , he can file that suit within the original

period of limitation though it may, in some cases, be of more than

three years.

(Nannekhan vs. Ganpati, AIR 1954, Hyd. 45 at p. 46 (F.B.))

Section 8 Special exceptions

Where once time has begun to run, no subsequent disability

or inability to institute a suit or make an application stops it:

PROVIDED that where letters of administration to the estate

of creditor have been granted to his debtor, the running of

the period of limitation for a suit to recover the debt shall be

suspended while the administration continues.

9. Continuous running of time

This section is based on general principle that once a right to sue

has accrued and time has started running, it could not stop unless

there was some direct obstruction to the remedy itself, or unless

the case fell within some of the exceptions provided in the

limitation act.

Scope of sec. 9

The fundamental principle is that limitation always implied an

existing cause of action and that unless the cause of action for a

suit has arisen, limitation for such a suit cannot begin to run.

Applicability

Notwithstanding anything contained in the foregoing

provisions of this Act, no suit against a person in whom

property has become vested in trust for any specific

purpose, or against his legal representatives or assigns

(not being assigns for valuable consideration), for the

purpose of following in his or their hands such property, or

the proceeds thereof, or for an account of such property

or proceeds, shall be barred by any length of time.

10. Suits against trustees and their representatives

The reason behind this section is that an express trust ought not

to suffer by the misfeasance or nonfeasance of a trustee.

Scope of sec.10

Section 10 is inapplicable to transfers and conveyance for

valuable consideration.

(Kakumani Rathiah vs. Pathan Asha Bibi, AIR 1964, A.P. 393)

It applies only to a case of property which has become vested in

“trust for a specific purpose”.

(Ramhandra kanago vs. laxman naik, AIR 1945, P.C. 54)

Contd.

Time never runs in favor of a trustee.

(Beliram and Brothers Chaudri Mohammad Afzal, AIR 1948 1969

Mad. 401)

Trustee or Mutawlli-

Time if runs in his favor

This word include the legal representative of the assigns as well.

The word “assign” is sufficiently wide to cover a lessee as well.

(smt.Chandrawati vs. Sivaji Maharaj, AIR 1969, All.72)

‘Assign’-Meaning of in sec. 10

(1) Suits instituted in the territories to which

this Act extends on contracts entered into in

the State of Jammu and Kashmir or in a

foreign country shall be subject to the rules

of limitation contained in this Act.

11. Suits on contracts entered into outside the territories to which the Act extends

(2) No rule of limitation in force in the State of Jammu and

Kashmir or in a foreign country shall be a defense to a suit

instituted in the said territories on a contract entered into

in that State or in a foreign country unless-

(a) the rule has extinguished the contract; and

(b) the parties were domiciled in that State or in the

foreign country during the period prescribed by such rule.

The effect of sec. 11(1) is to apply the rule of

limitation of this country from the date when the

cause of a action arose and not from the time

when the right to institute an action in a foreign

court begins to run.

(Ramanathan Chettiar vs. Soma Sundaram

Chettiar, AIR 1964, Mad. 527 at p. 528)

Scope and Applicability

Procedure only is governed by the law of the country in which the

actions brought - not by foreign law.

Section 11 is plain recognition of this principle. Though the proper

law of contract determines most matters relating to the formation,

validity and substance of the contract by virtue of sec. 11 , no

foreign law of limitation is defense to a suit in India, unless that

law has extinguished the contract and the parties were domiciled

in such country during the prescribed period.

Contd.

(1) In computing the period of limitation for

any suit, appeal or application, the day from

which such period is to be reckoned, shall

be excluded.

12. Exclusion of time in legal proceedings

(2) In computing the period of limitation for an

appeal or an application for leave to appeal or for

revision or for review of a judgment, the day on

which judgment complained of was pronounced

and the time requisite for obtaining a copy of the

decree, sentence or order appealed from or sought

to be revised or reviewed shall be excluded.

(3) Where a decree or order is appealed

from or sought to be revised or reviewed, or

where an application is made for leave to

appeal from a decree or order, the time

requisite for obtaining a copy of the

judgment 2[***] shall also be excluded.


an application to set aside an award, the

time requisite for obtaining a copy of the

award shall be excluded.

Explanation: In computing under this

section the time requisite for obtaining a

copy of a decree or an order, any time

taken by the court to prepare the decree or

order before an application for a copy

thereof is made shall not be excluded.

It is not possible to prefer an application for leave to appeal,

unless the appellant or the applicant has a copy of the judgment

on which the decree is based. (generally, along with appeal memo

it is required)

As a matter of practice some courts are allowing the time taken

for obtaining a copy of the judgment. This practice has been

legalized by inserting sec. 12 of the act.

General Note

Some courts have taken the view that the delay in drafting the

decree, before an application for a copy is made, should be

deducted as “time requisite”. But a delay of the office before the

application for a copy is made should not count in favour of the

party.

(Devkishin fatechand vs. Bai Mariambai, AIR 1963, Guj. 255)

Contd.

This section includes applications for revision within its scope.

The election petition may be treated as an application within the

schedule of the limitation act so as to attract the provisions of sec.

12(1) read with sec. 29 of the limitation act.

(Bhogilal Pandya vs. Maharawal Singh, AIR 1968 Raj. 145)

Scope of sec. 12

There is no definition of the expression “time requisite” in

limitation act.

Judicial committee of the privy council in Surty vs. Chettyar,

pointed out:

“the word ’requisite’ is a strong word; it may be regarded as

meaning something more than the word ‘required’. It means

‘properly required’, and, it is obligation of the counsel for the

appellant to explain, no part of the delay beyond the prescribed

period is due to his negligence.

Word “Requisite”

Meaning of

In the case of : Dalipram vs. Chhabiram, AIR 1964, M.P. 233 at p.

233:

As regards the expression “a copy of the judgment on which it is

founded”

In civil appeal - judgment or decree.

For both sec. 12 will be applicable.

Contd.

In case where the judgment on which the decree is based, is

pronounced on the last working day before the vacations, and

where the application for a copy is presented on the day the court

reopens, it would come within the ambit of the “time requisite for

obtaining a copy” because no application could be filed, during

that period and hence it will be granted.

(Amar chand vs. Bach Raj, AIR 1966 ,111)

“time requisite’ for obtaining a copy

The plain language of section 12(2) suggests that the said

provision is not attracted to the execution proceedings.

It is not mentioned as one of the categories covered by the said

section 12(2)

There is no scope for equity, and language cannot be stretched to

include execution proceedings within the ambit of the said

provision.

Applicability to Execution Proceedings

An application for leave to appeal to the Supreme Court, the time

requisite for obtaining copy of the decree as well as the judgment

should be excluded under sec 12 (2) and sec 12 (3) of the

limitation act.

Application for Leave to Appeal to SC

Limitation period according to Negotiable Instrument Act -

Time period of Notice - 30 days…..

To lodge a complain – within 15 days….

NI Act

Matter of construction of sub sections 2 and 3 of sec. 12 and as a

matter of principle, the time taken for obtaining the copy of the

judgment should be excluded in computing the period of limitation

for an application of leave to appeal in forma pauperis.

(Bhanumathi Amma vs. Nani Amma, AIR 1964 Ker. 173.)

Application for Leave to Appeal in forma pauperis

A requisition for drawing up of an order cannot amount to an

application for a certified copy of an order.

There is a clear distinction between requisitation of the drawing

up of the order and application for certified copy of the order.

Application for Certified Copy of an Order

The limitation act 1963 has made certain changes, as a result

whereof, it is necessary to make an application for certified copy

of an order, without such application, the time required for

obtaining certified copies of the order is not excluded from the

period prescribed for limitation.

Contd.

It obligatory to have certified copies of the order for the purpose

of computation of the prescribed period of limitation.

( Shaikh Mohd vs. Khan Bhadur)

Certified copy is essential

Legislative changes:

newly introduced.

Section 13-

Exclusion of Time in cases where Leave to Sue or Appeal as a

Pauper is applied for.

In computing the period of limitation prescribed for any suit

or appeal in any case where an application for leave to sue

or appeal as a pauper has been made and rejected, the

time during which the applicant has been prosecuting in

good faith his application for such leave shall be excluded,

and the court may, on payment of the court fees prescribed

for such suit or appeal, treat the suit or appeal as having

the same force and effect as if the court fees had been paid

in the first instance.

13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for

Where a pauper application was pending on this date and it was

disposed of only on the 18th January, 1964 it was held that the law

to be applied in respect of the pauper application was the law as it

stood under the provisions of the old limitation act, 1908 (if

provision is in old act) and not the new law as cl. (b) of sec. 31,

which expressly says that any application which may be pending

at the commencement of the act will not be affected by the

provisions of the act.

(Ramashrey Roy vs. Pashupati Pathak, AIR 1968 pat. 1)

Contd.

Application to sue as a pauper…

Application rejected…. ( on expire of the period of limitation)

Which date should be taken in to the consideration?

( Bibi Basiran vs. Lal Mohammad, AIR 1962 SC 941)

Date of the Suit or Appeal

The joint committee on the limitation bill, 1962 , felt that in a

case, when an application for leave to sue or appeal as a pauper

has been made and rejected, the time taken in prosecuting in

good faith such application should be excluded in computing the

periods of limitation prescribed. This clause accordingly, provides

for the exclusion of such period.

Scope of Sec. 13

(1) In computing the period of limitation for any suit the

time during which the plaintiff has been prosecuting

with due diligence another civil proceeding, whether in a

court of first instance or of appeal or revision, against

the defendant shall be excluded, where the proceeding

relates to the same matter in issue and 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.

14. Exclusion of time of proceeding bona fide in court without jurisdiction

(2) In computing the period of limitation for any

application, the time during which the applicant has been

prosecuting with due diligence another civil proceeding,

whether in a court of first instance or of appeal or

revision, against the same party for the same relief shall

be excluded, where such proceeding is prosecuted in

good faith in a court which, from defect of jurisdiction or

other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of

Order XXIII of the Code of Civil Procedure, 1908 (5 of

1908), the provisions of sub-section (1) shall apply in

relation to a fresh suit instituted on permission granted

by the court under rule 1 of that Order, where such

permission is granted on the ground that the first suit

must fail by reason of a defect in the jurisdiction of the

court or other cause of a like nature.

(a) in excluding the time during which a

former civil proceeding was pending, the

day on which that proceeding was instituted

and the day on which it ended shall both be

counted;

Explanation: For the purposes of this section-

(b) a plaintiff or an applicant resisting an

appeal shall be deemed to be prosecuting a

proceeding;

(c) misjoinder of parties or of causes of action

shall be deemed to be a cause of a like

nature with defect of jurisdiction.

The object is to give relief to a person, who institutes proceedings

and due to technical defect, it should not be barred by limitation.

Object of the Section 14

To give benefit to the plaintiff u/s 14 of the act, on account of

mistakes committed by his or her legal adviser, the conduct of the

lawyer must be examined and scrutinized carefully.

If it is found that the conduct of the lawyer was palpably negligent

and the view taken by him was unreasonable, the plaintiff has to

suffer for the conduct of her or his counsel.

(Rabeyya Khatun vs. Official Liquidator, 1968 Cut. L.T. 830)

Lawyer’s Mistake..

Where appeal instead of revision was filed due to mistake of the

counsel……

It should be converted in to revision….

Time taken by the court in conversation should be excluded…

(Babl chhabra vs. Ginirani Chhabra, 1994)

Conversion of Appeal in revision

The legal position makes it crystal clear that the period from the

date of return of the plaint by the wrong court till the date of

presentation to the proper court cannot be excluded for the

purpose of computation of limitation and the court which returned

the plaint has no power to grant time.

Computation of Limitation-

when cannot be Excluded

(1) In computing the period of limitation of any

suit or application for the execution of a

decree, the institution or execution of which

has been stayed by injunction or order, the

time of the continuance of the injunction or

order, the day on which it was issued or made,

and the day on which it was withdrawn, shall

be excluded.

15. Exclusion of time in certain other cases

(2) In computing the period of limitation for any suit

of which notice has been given, or for which the

previous consent or sanction of the government or

any other authority is required, in accordance with

the requirements of any law for the time being in

force, the period of such notice or, as the case may

be, the time required for obtaining such consent or

sanction shall be excluded.

Explanation: In excluding the time required for

obtaining the consent or sanction of the

government or any other authority, the date

on which the application was made for

obtaining the consent or sanction and the date

of receipt of the order of the government or

other authority shall both be counted.

(3) In computing the period of limitation for any suit or

application for execution of a decree by any receiver or interim

receiver appointed in proceedings for the adjudication of a

person as an insolvent or by any liquidator or provisional

liquidator appointed in proceedings for the winding up of a

company, the period beginning with the date of institution of

such proceeding and ending with the expiry of three months

from the date of appointment of such receiver or liquidator, as

the case may be, shall be excluded.


a suit for possession by a purchaser at a

sale in execution of a decree, the time

during which a proceeding to set aside the

sale has been prosecuted shall be excluded.


any suit the time during which the

defendant has been absent from India and

from the territories outside India under the

administration of the Central Government,

shall be excluded.

The scope of this provision is confined only to an absolute stay

granted by courts or by the provision law.

The principle underlying this section is apparent.

Scope of sec. 15

A decree, which has been stayed cannot obviously be executed.

So under this section the period covered by the stay order is

allowed to be excluded, from the period of limitation.

(Cherakuru Barhmiah vs. Cheelavapilla setti, AIR, 1964 A.P. 439)

Contd.

In another case, where a plaintiff in a suit against the government,

is required to give notice to the government u/s 80 of c.p.c., he

(the officer) would be entitled to exclude the period of notice, i.e.

two months, in computing the period of limitation.

(Commrs., port of Calcutta vs. Gneral Trading corp. AIR 1964, Cal.

290)

Cotd.

The section does not speak of absolute or partial stays, and it

seems clear that, if there is a stay at all it would be correct to say

that execution of the decree has been stayed, no matter that the

stay is restricted to one particular mode of execution and

execution in other modes is open.

Stay of Execution Proceedings and Attachment of Decree etc.

(1) Where a person who would, if he were living,

have a right to institute a suit or make an application

dies before the right accrues, or where a right to

institute a suit or make an application accrues only

on the death of a person, the period of limitation

shall be computed from the time when there is a

legal representative of the deceased capable of

instituting such suit or making such application.

16. Effect of death on or before the accrual of the right to sue

(2) Where a person against whom, if he were living, a right to

institute a suit or make an application would have accrued

dies before the right accrues, or where a right to institute a

suit or make an application against any person accrues on

the death of such person, the period of limitation shall be

computed from the time when there is a legal representative

of the deceased against whom the plaintiff may institute

such suit or making such application.

(3) Nothing in sub-section (1) or sub-section

(2) applies to suits to enforce rights of pre-

emption or to suits for the possession of

immovable property or of a hereditary

office.

This section is based on the general principle that there can be no

cause of action until there is a party capable of suing and until

there is a cause of action, there can be no question of the law of

limitation, coming into operation.

(Murry vs. East India co. 1821)

Principle of section 16

This section is confined to rights of action occurring after death.

There is no reason to restrict the section in this manner. The privy

council observed in Meyappa vs. Subramanya, that when the

cause of action arises in favor of the deceased person before his

death, time will at once begin to run.

Scope of sec. 16

(1) Where, in the case of any suit or

application for which a period of limitation is

prescribed by this Act-

(a) the suit or application is based upon the

fraud of the defendant or respondent or his

agent; or

17. Effect of fraud or mistake

(b) the knowledge of the right or title on which

suit or application is founded is concealed by the

fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the

consequences of a mistake; or

(d) where any document necessary to establish the right of the

plaintiff or applicant has been fraudulently concealed from

him; the period of limitation shall not begin to run until the

plaintiff or applicant has discovered the fraud or the mistake or

could, with reasonable diligence, have discovered it; or in the

case of a concealed document, until the plaintiff or the

applicant first had the means of producing the concealed

document or compelling its production:

PROVIDED that nothing in this section shall enable any suit to

be instituted or application to be made to recover or enforce

any charge against, or set aside any transaction affecting, any

property which-

(i) in the case of fraud, has been purchased for valuable

consideration by a person who was not a party to the fraud and

did not at the time of the purchase know, or have reason to

believe, that any fraud had been committed, or

(ii) in the case of mistake, has been

purchased for valuable consideration

subsequently to the transaction in which the

mistake was made, by a person who did not

know, or have reason to believe, that the

mistake had been made, or

(iii) in the case of concealed document, has

been purchased for valuable consideration

by a person who was not a party to the

concealment and, did not at the time of

purchase know, or have reason to believe,

that the document had been concealed.

(2) Where a judgments-debtor has, by fraud

or force, prevented the execution of a decree

or order with the period of limitation, the

court may, on the application of the

judgment-creditor made after the expiry of

the said period extend the period for

execution of the decree or order:

PROVIDED that such application is made

within one year from the date of the

discovery of the fraud or the cessation of

force, as the case may be.

If plaintiff desires to invoke the aid of sec. 17 , he must establish

that there has been fraud and that by means of such fraud, he has

been kept away from the knowledge of his right to sue or of the

title whereon it is founded.

(Syed Shah vs. Syed Shah Qadri, AIR 1971 SC 2184)

Scope of sec. 17

When computation of a period is to be made from a particular

date, that date is excluded from such computation.

(Baikunath Misra vs. Dessar Kali Kuer, AIR 1969 pat. 160)

Computation of period u/s 17

Sec. 17 relates to effect of fraud or mistake vis-à-vis initiation of

the suit beyond the period of limitation. Section 17 (c) saves the

period of limitation a case where the suit or application is filed for

relief from the consequence of a mistake. The period of limitation

shall not begin to run until the plaintiff or applicant has discovered

the fraud or the mistake with reasonable diligence.

Contd.

(1) Where, before the expiration of the prescribed

period for a suit or application in respect of any

property or right, an acknowledgement of liability in

respect of such property or right has been made in

writing signed by the party against whom such

property or right is claimed, or by any person through

whom he derives his title or liability, a fresh period of

limitation shall be computed from the time when the

acknowledgement was so signed.

18. Effect of acknowledgement in writing

The contents and the scope of sec. 18, are no longer in doubt.

In Tilak ram vs. Nathu, AIR 1967 SC 935- Supreme Court pointed

out that the section requires :

1. An admission or acknowledgment

2. That such acknowledgment must be in respect of a liability in

respect of a property or right.

3. That it must be made before the expiry of the period of

limitation

Scope

4. That it should be in writing and signed by the party, against whom

such property or right is claimed.

Contd.

Two essential requirements:

There should be an acknowledgment of liability in respect of the

property or the right in question

It should be (by) the party against whom such property or right is

claimed.

Conditions which constituted valid acknowledgment

An acknowledgment u/s 18 , must be of a liability. It must relate to

some existing debt or other obligation to some property or right.

The liability must be existing on the date of acknowledgment.

It must be in writing and signed by the person against whom such

property or right is to be claimed or by some person through

whom he derives his title or liability.

Essential Conditions for a Valid Acknowledgment

The acknowledgment must be before the expiry of the period

prescribed for a suit or application in respect of such property or

right.

(Bank of India vs. James Fernandez, AIR, 1988 ker. At p. 89)

Contd.

The word “acknowledgement” appearing in sec. 18, can only

mean an admission of the truth of one’s own liability.

Such admission may be express or implied.

“Acknowledgment” in sec. 18

Section 18 of the act, makes a provision about the effect of

acknowledgment in writing.

An acknowledgment under sec. 18 must be of a liability.

Thus, the liability must be alive or in existence on the date of the

acknowledgment.

It must be in writing and signed by the person against whom such

writing is claimed.

Effect of Acknowledgment

The acknowledgment, therefore, must be before the expiry of the

period prescribed for a suit or application, in respect of such

property or right.

(Shivam Construction Co. vs. Vijaya Bank, Ahmedabad, AIR 1997

Guj. At pp.29, 30)

Contd.

Sec. 18 (2) permits proof of evidence regarding time of signing the

acknowledgment in writing, when it is undated.

From that a corollary may follow that if the acknowledgment is in

writing and signed and is dated, oral evidence regarding the date

is prohibited by implication.

Evidence regarding the Time of Signing the Acknowledgment

is Permissible

BUT every rule has its exception. Intention of sec. 18(2) is to find

out the real date of the written and signed acknowledgment for

the purpose of saving limitation and to exclude fraudulent

testimony. Vitiating factors could always be proved.

The very purpose of the existence of court is dispensation of

justice between parties by finding out the truth legally and notice

of their contentions and not to deny justice on technical grounds.

(Craft centre vs. Koncherry Coir Factories ,1991)

Cont.

An acknowledgment to take the case out of the statute of

limitation must be either one from which an absolute promise to

pay can be inferred or, secondly, an unconditional promise to pay

the specific debt, or thirdly, there must be a conditional promise

to pay the debt and evidence that the condition has been

performed.

(Bibhuti Bhusan Bose vs. National Coal Trading co. AIR 1966, pat.

346)

Un conditional Acknowledgment implies a Promise to Pay

It follows, therefore, that whatever may be the case with regard to

the other partners, the legal representatives of deceased partner

and also some other specifically referred to in the proviso stand on

a different footing in relation to the acts done by any of the

partners after the dissolution of the firm whether or not public

notice is given of the dissolution.

Legal Representative of Deceased Partner when cannot be

bound by any Acknowledgment

That being the case (previous slide’s situation), the legal

representatives of a deceased partner cannot be bound by any

acknowledgment or payment made towards the debts,

subsequent to the death of the partner, even though it may be

said that the partner as the agent of the firm had implied

authority under section 47 of the partnership act, to acknowledge

a debt.

(K. Venkatasubbamma vs. K. Subba Rao, AIR 1964, A.P. 1964 462

at p. 463)

Contd.

In the case of Kittunni Gupthan vs. M.C. Kuttikrishna Gupthan:

“The plaintiff relied on an acknowledgment of the plaint’s claim

contained in Ex.-4, the reply notice issued by the defendants

through their advocate. The point of discussion is only, whether

this reply notice contained an acknowledgment of a subsisting

liability of the defendants under the note and whether that

acknowledgment is binding on the defendants.

Acknowledgement contained in an advocate’s letter may save

limitation

The further fact that both the defendants joined together and

issued a reply notice through their advocate strengthens the

conclusion that the plaintiff demanded the amounts due under

both notes. Therefore, it is clear that the acknowledgment, in the

reply notice is also for the liability, under the note which is the

subject matter of the suit in this case.

Contd.

Acknowledgment in a pleader’s letter, may suffice to save

limitation against the client, it being assumed that (until the

contrary is proved) the letter was written under instructions.”

Contd.

In the case of Oriental Bank of Commerce vs. Dile Ram, 1991 Bank

J. 523 at p. 524:

“The well settled principal is that the surety can appoint the

principal debtor as his agent for the part payment of debt

acknowledgment liability in relation to the applicability of sec. 18

to 20 of the limitation act.

Part payment of loan and actionable want of liability by

principal debtor

when may be deemed on behalf of surety also

Evidently, in such an eventuality, the principal debtor while

making the acknowledgment or part payment would not only be

binding himself alone, but also the surety because the

acknowledgment or payment, then would be deemed to have

been made on behalf of the surety as well.

Contd.

Where payment on account of a debt or of

interest on a legacy is made before the

expiration of the prescribed period by the

person liable to pay the debt or legacy or by

his agent duly authorized in this behalf, a fresh

period of limitation shall be computed from the

time when the payment was made:

19. Effect of payment on account of debt or of interest on legacy

PROVIDED that, save in the case of

payment of interest made before the 1st

day of January, 1928, an acknowledgement

of the payment appears in the handwriting

of, or in a writing signed by, the person

making the payment.

Explanation: For the purposes of this section -

(a) where mortgaged land is in the possession of the

mortgagee, the receipt of the rent or produce of such

land shall be deemed to be a payment;

(b) "debt" does not include money payable under a

decree or order of a court.

The payment which really extends the period of limitation under

the section should be written or signed acknowledgment as the

only proof of payment and exclude oral testimony.

The section requires that the payment should be made within the

period of limitation.

Scope – Sec.-19

It does not require that the acknowledgment should also be made

within the period but it is essential that such acknowledgment

whether made before or after the period of limitation must be in

existence prior to the institution of suit.

(Sant Lal Mahton vs. Kamla Prasad AIR 1951 sc 477 at p. 479)

Contd.

In another case: “ if a cheque bears a date prior to the date of the

delivery of cheque, the creditor can present the same for

collection only after it is delivered to him.

In such a case it is the date of delivery of the cheque rather than

the date which the cheque before, would be the date for

computing the period of limitation.

(Ashok Khurana vs. Steelam Industries, AIR 2000 Delhi 336 at p.

339)

Contd.

The words “a person liable to pay” in sec. 19(1)(New), 20(1)(old)

of limitation act are words of wide import, not confined to a

person who is personally liable to pay the debt. The words are

wide enough, to cover property liability also.

“A person Liable to Pay”

(1) The expression "agent duly authorized in

this behalf" in sections 18 and 19 shall, in the

case of a person under disability, include his

lawful guardian, committee or manager or an

agent duly authorized by such guardian,

committee or manager to sign the

acknowledgement or make the payment.

20. Effect of acknowledgement or payment by another person

(2) Nothing in the said sections renders one

of several joint contractors, partners,

executors or mortgagees chargeable by

reason only of a written acknowledgement

signed by, or of a payment made by, or by

the agent of, any other or others of them.

(3) For the purposes of the said sections,-

(a) an acknowledgement signed or a payment made

in respect of any liability by or by the duly authorized

agent of, any limited owner of property who is

governed by Hindu law, shall be a valid

acknowledgement or payment, as the case may be,

against a reversioner succeeding to such liability; and

(b) where a liability has been incurred by or

on behalf of a Hindu undivided family as

such, an acknowledgement or payment

made by, or by the duly authorized agent

of, the manager of the family for the time

being shall be deemed to have been made

on behalf of the whole family.

From the language of sec. 20, it appears that two conditions are

essential:

1. The payment must be made within the prescribed period of

limitation and,

2. It must be acknowledged by some form of writing either in the

handwriting of the payer himself or signed by him.

Applicability

The word “payment” for the purpose of saving the limitation

assume importance. Now whether the date of cheque as such

should be taken as the date of payment or the date on which

actually the amount had been realized should be taken as the

date of payment – was in dispute.

Decide…

Reckoning the period of Limitation-

The court was of the considered opinion that the facts are

distinguishable and as far as the facts available as on record in

the case for reckoning the period of limitation it is the payment

which is to be taken into consideration and the payment should be

taken as the date on which amount was realized .

(Syndicate Bank vs. Vijayarama Rao, 2002)

Contd.

(1) Where after the institution of a suit, a

new plaintiff or, defendant is substituted or

added, the suit shall, as regards him, be

deemed to have been instituted when he

was so made a party:

21. Effect of substituting or adding new plaintiff or defendant

PROVIDED that where the court is satisfied

that the omission to include a new plaintiff

or defendant was due to a mistake made in

good faith it may direct that the suit as

regards such plaintiff or defendant shall be

deemed to have been instituted on any

earlier date.

(2) Nothing in sub-section (1) shall apply to

a case where a party is added or

substituted owing to assignment or

devolution of any interest during the

pendency of a suit or where a plaintiff is

made a defendant or a defendant is made a

plaintiff.

Sub-section(1) of sec. 21… the proviso is specific that after the

institution of the suit, if a new plaintiff or defendant is substituted

or added, the suit shall, as regards, it deemed to have been

instituted when he was made a party.

Applicability

Failure to joint a person who is proper but not a necessary party

does not affect the maintainability of the suit nor does it invite the

applicability of the section.

( Devidas vs. Shrishailapa, AIR 1961 sc. 1277 at p. 1282)

Non-Joinder of parties, effect

In the case of a continuing breach of

contract or in the case of a continuing tort,

a fresh period of limitation begins to run at

every moment of the time during which the

breach or the tort, as the case may be,

continues.

22. Continuing breaches and torts

Court observed that: “ sec. 23(old) 22(new) refers not to a

continuing right, but to continuing wrong.

Essence of a continuing wrong, that it is an act which creates a

continuing source of injury ….

the doer of the act as being responsible and liable for continuance

of the said injury….

Applicability of Sec.22

If the wrongful act causes an injury which is complete, there is no

continuing wrong even though the damage resulting from the act

may continue….

If however a wrongful act is of such a character that the injury

caused by it, itself continues, then the act constitutes a continuing

wrong….

Contd.

In this connection, it is necessary to draw a distinction between

the injury caused by the wrongful act and that may describe as

the effect of the said injury.

It is only in regard to act which can be properly characterized as

continuing wrongs, that sec. 23 can be invoked.

(sheo Narayan Singh vs. Ambica Singh, AIR 1970 pat. 246 at. P.

251)

Contd.

Essence of continuing tort is an act which creates a continuing

source of injury and renders the doer of the act responsible and

liable for the continuance of the said injury….

Continuing Tort

In the case of a suit for compensation for an

act which does not give rise to a cause of

action unless some specific injury actually

results there from, the period of limitation

shall be computed from the time when the

injury results.

23. Suits for compensation for acts not actionable without special damage

Sec.23 merely affects the time from which the time would run.

In a suit for compensation for an act not actionable without

special damage, the period of limitation shall be computed, from

the time, when the injury results. Therefore, the effect, which this

section causes in the operation of the statute of limitation, is not

to extend or to restrict any period of limitation, but to modify the

date or time from which the cause of action arises.

Scope of sec.-23

That is to say, if a suit is for compensation for any malfeasance or

misfeasance independent of contract, the limitation will start, not

from the date of the malfeasance or misfeasance, but from the

time when the injury results.

( Jagannath marwari vs. kalidas raha)

Contd.

The provisions of sec. 23 apply to suits based on torts as well as

to suits based on contracts.

(Kedar Nath vs. Har Govind )

Applicability of Sec.23

All instruments shall for the purposes of this

Act be deemed to be made with reference

to the Gregorian calendar.

24. Computation of time mentioned in instruments

If a question of limitation arises, the instrument must be deemed

to have been made with reference to the Gregorian Calendar, the

intention of the parties being immaterial.

(Vishnu Bhatta vs. Domakkee, AIR 1958 ker. 326 at p. 330)

Scope and Applicability

(1) Where the access and use of light or air to and for any building

have been peaceably enjoyed therewith as an easement, and as of

right, without interruption, and for twenty years, and where any

way or watercourse or the use of any water or any other easement

(whether affirmative or negative) has been peaceably and openly

enjoyed by any person claiming title thereto as an easement and

as of right without interruption and for twenty years, the right to

such access and use of light or air, way, watercourse, use of water,

or other easement shall be absolute and indefeasible.

PART IVACQUISITION OF OWNERSHIP BY POSSESSION25. Acquisition of easement by prescription

(2) Each of the said periods of twenty years

shall be taken to be a period ending within

two years next before the institution of the

suit wherein the claim to which such period

relates is contested.

(3) Where the property over which a right is

claimed under sub-section (1) belongs to

the government that sub-section shall be

read as if for the words "twenty years" the

words "thirty years" were substituted.

Explanation: Nothing is an interruption with the

meaning of this section, unless where there is an

actual discontinuance of the possession or enjoyment

by reason of an obstruction by the act of some

person other than the claimant, and unless such

obstruction submitted to or acquiesced in for one

year after the claimant has notice thereof and of the

person making or authorizing the same to be made.

Where the case of the petitioner, is not about the right of

easement, but is about the public right over a public way, ….

Whether section 25 will apply?

( Aribam Tuleshwar Sarma vs. Irengbam Singh, AIR 1965 Manipur

39 at p. 42)

Claim of public right over public way

Where any land or water upon, over or from, which any

easement has been enjoyed or derived has been held under or

by virtue of any interest for life or in terms of years exceeding

three years from the granting thereof the time of the

enjoyment of such easement during the continuance of such

interest or term shall be excluded in the computation of the

period of twenty years in case the claim is, within three years

next after the determination of such interests or term resisted

by the person entitled on such determination to the said land

or water.

26. Exclusion in favour of reversioner of

servient tenement

At the determination of the period hereby

limited to any person for instituting a suit

for possession of any property, his right to

such property shall be extinguished.

27. Extinguishment of right to property

It is a well recognized general principle, that lapse of time bars

only the remedy, but does not extinguish the right. Thus reading

sec. 27 and 28 of the act, together the principle recognized, is

that where, for a suit for possession, the time expires, it will

automatically extinguish the right along with the remedy, to

recover the possession. In other words, both the right and the

remedy to get back the possession of the property, will be lost.

(Devboo vs. Rama Dogra, 1993)

scope

Sec. 28 Amendment of certain acts

(1) Nothing in this Act shall affect section 25 of the Indian

Contract Act, 1872 (9 of 1872).

29. Saving

(2) Where any special or local law prescribes for any suit, appeal or

application a period of limitation different from the period

prescribed by the Schedule, the provisions of s. 3 shall apply as if

such periods were the periods prescribed by the Schedule and for

the purpose of determining any period of limitation prescribed for

any suit, appeal or application by any special or local law, the

provisions contained in sections 4 to 24 (inclusive) shall apply only

in so far as, and to the extent to which, they are not expressly

excluded by such special or local law.

(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.

(4) Sections 25 and 26 and the definition of

"easement" in section 2 shall not apply to

cases arising in the territories to which the

Indian Easements Act, 1882 (5 of 1882),

may for the time being extend.

Sec. 30 provision for suits, etc. for which the prescribed period is

shorter than the period prescribed by the Indian limitation Act,

1908.

Section 30

Miscellaneous provisoins

Nothing in this Act shall-

(a) enable any suit, appeal or application to be instituted,

preferred or made, for which the period of limitation prescribed

by the Indian Limitation Act, 1908, expired before the

commencement of this Act; or

(b) affect any suit, appeal or application instituted, preferred or

made before, and pending at, such commencement.

Sec. 31 provisions as to barred or pending suits, etc.

Discussion with students….

Comments , if any

Old Sections New sections

1 1

2 2

3 3

4 4

5 5

6 6

7 7

Comparative Chart

Old sections New sections

8 8

9 9

10 10

11 11

12 12

13 15(5)

14 14

Contd.


15(1) 15(1)

15(2) 15(2)

16 15(4)

17 16

18 17

19 18

20 19

Contd.


21 20

22 21

23 22

24 23

25 24

26 25

27 26

Contd.


28 27

29 29

30, 31, 32 Repealed

137 articles ….

Contd.

Thank you

Documents

The Limitation Act,1963