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Report No. 139

1.3. Suggestions already made by the Law Commission and in the judicial decisions.-

As will be pointed out later in this report, the need for an amendment of the law on the point, which is the subject-matter of the report, has been highlighted nearly 10 years back in the Law Commission of India's 89th Report presented on 28th February, 1983 in para. 42.35. We quote:-

"42.35. However, we should refer to a connected provision in the Code of Civil Procedure, 1908, which seems to need amendment. Article 127 of the Limitation Act is concerned with applications, in regard to which Order 21, rule 92(2) of the Code is relevant. The period of limitation for an application under Article 127 is sixty days, after its amendment (1) in 1976. The application is to be accompanied by a deposit. The period for making the required deposit under Order 21, rule 92(2), 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 (2) also. To remove this discrepancy, we recommend that Order 21, rule 92(2) of the Code of Civil Procedure, 1908, should be suitably amended by increasing the period from 30 days to 60 days(3)."

(1)

Section 98, Code of Civil Procedure (Amendment) Act, 1976.

(2)

Dakshayini v. Madhavan, AIR 1982 Ker 126 (June).

(3)

To be carried out under Order 21, rule 92(2), Code of Civil Procedure, 1908.

It has also been stressed by the Supreme Court of India and it seems desirable that the anomaly should be removed as expeditiously as possible to foreclose grave injustice to unfortunate litigants.



Urgent need to amend Order XXI, Rule 92(2) of the Code of Civil Procedure to remove an anomaly which nullifies the Benevolent Intention of the Legislature and Occasions Injustice to Judgment Back




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