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Report No. 3

The Limitation Act, 1908

Part I

Preliminary

Chapter I

Introduction

1. Limitation and its utility.-

The utility of a statute of limitation has never been a matter of serious doubt or dispute. It has been said that the statute of limitation is a statute of repose, peace and justice. It is one of repose because it extinguishes stale demands and quiets title; in the words of John Voet, controversies are restricted to a fixed period of time lest they should become immortal while men are mortal. It secures peace as it ensures of of rights; and it secures justice, as by lapse of time evidence in support of rights may have been destroyed. There can thus be no doubt that it rests on sound policy.1

The operation of the law of prescription has been explained by Lord Plunket in a striking metaphor. He stated that Time holds in one hand a scythe and in the other, an hour-glass. The scythe mows down the evidence of our rights, while the hour-glass measures the period which renders that evidence superfluous. Commenting on this, a learned author observes that the metaphor could have been completed by adding, so far as India is concerned, that the frame-work of the hour-glass would certainly decay, the glass be broken, and the sand escape.

1. For an elucidation of the policy underlying the law of Limitation, see Jones v. Bellegrove Properties Ltd., 1949 (2) KB 700 and R.B. Policies at Lloyd's c. Butler (1950) 1 KB 76.

2. History.-

Under the Hindu jurisprudence there was only a law of prescription and no law of. Limitation as such. For the acquisition of title by prescription, a period of 20 years was laid down by certain Smriti writers, though others differed regarding the length of the period. The main occupation of the people being agriculture and there being very little of commerce or trade, concentration was more on the land and the rights therein. This was the position not only in Hindu society but also in other countries; thus in England, before the James Statute of 1023 there was no specific law of Limitation.

3. Before 1858, two systems of law of Limitation were administered by the courts in India. In the territories within the original jurisdiction of the courts established by Royal Charter in the Presidency towns of Calcutta, Madras and Bombay, the English Law, and in the mofussil courts, the law as laid down by the Regulations, was administered. The first attempt to introduce a uniform law of Limitation applicable alike to courts established by Royal Charter and other courts was made by the Limitation Act, 1859 (XIV of 1859) which came into operation in 1862. It was followed by Act IX of 1871, which amended the law laid down by the former Act on the basis of the decisions of the courts. The Act of 1871 was soon replaced by Act XV of 1877 which introduced some alterations.

There were other amending Acts which followed the Act of 1877. Finally, as a Properties Ltd., 1949 (2) KB 700 and R.B. Policies at Lloyd's c. Butler (1950) 1 KB 76. result of the decision of the Privy Council in Vasudeva v. Srinivasa, 30 Mad 426, on the applicability of Article 132 to suits on mortgages for sale (over-ruling the earlier decisions which applied Article 147), the question of consolidating and amending the law relating to Limitation for suits, appeals and applications was taken up and this resulted in the passing of the Limitation Act of 1908 (Act IX of 1908). This Act was also amended from time to time particularly after the report of the Civil Justice Committee of 1924-25. This is the Act now in force. It applies to Part A and Part C, as well as to Part B States, subject to the modifications made by Act III of 1951.

4. Analysis of the Act of 1908.-

The Act of 1908 consists of 30 sections and 183 Articles. The sections deal with general principles applicable to extension of time whether by reason of disability or by acknowledgment and part payment, and they are divided into five parts. Part I is preliminary, Part II (sections 3 to 11) deals with limitation of suits, appeals and applications, Part III (sections 12 to 25) deals with computation of period of limitation, Part IV (sections 26 to 28) deals with acquisition of ownership by possession and Part V (sections 29 and 30) contains saving provisions. Of the 183 Articles, Articles 1 to 149 relate to suits (the first division), Articles 150 to 157 relate to appeals, (second division) and Articles 158 to 183 relate to applications, (third division). The Articles relating to suits are divided into 10 parts on the basis of the periods of limitation and not on the nature of suits. The periods range from 30 days to 60 years. For appeals there are 6 periods ranging from 7 days to 6 months. For applications there are 9 periods ranging from 10 days to 12 years.

5. Need for reform.-

The need for reform of the law of Limitation in India has been felt for quite a' long time. One of the questions formulated by the Civil Justice Committee of 1925 was, "In what cases do you consider that the law of Limitation might be made more stringent?" and in response to this, a number of suggestions were made for the deletion or amendment of various sections and Articles of the Limitation Act. As, however, the revision of the Act involved more labour than that Committee could bestow, in its report it confined its observations to a few Articles. In a note appended to that report Sir Tej Bahadur Sapru particularly adverted to the fact that the seemingly innocuous provision in Article 182 of the Limitation Act providing limitation for the execution of decrees afforded a standing temptation to dishonest decree-holders and dishonest judgment-debtors to trouble, annoy and cheat each other and to prolong the execution at their will and pleasure.

He also drew the attention of the Committee to the fact that the commentary in Rustamji's edition of the Limitation Act on that Article covered 75 closely printed pages. (In the fifth edition, it covers nearly 200 pages). The provision of different Articles for different categories of suits and a residuary Article providing a longer period of limitation is responsible for conflicting decisions and the attempt of the plaintiff has always been to bring his suit, if possible, within the Article providing a longer period of limitation while the defendant attempted the opposite. It cannot be gainsaid that the law should be simple and certain. The time of the courts should not be wasted in disputes concerning the shadow and not the substance.

As far as possible, legislation should avoid the possibility of conflict between various Articles and not allow the residuary Article to confer any additional advantage. It is desirable that people should not be exposed to the risk of "stale demands" after they have lost all evidence - documentary or oral - in support of their claims. The nearer the action to the ken of events, the easier it is to discover the truth. The periods of limitation should neither be too long nor too short. It should also accord as far as possible with the notions of a layman, such as, that for recovery of land the period is twelve years and for other cases three years.

6. The English Limitation Act, 1939.-

In England, the Law Revision Committee appointed in 1934 submitted its Fifth Interim Report suggesting the lines on which the various Statutes of Limitation in England should be consolidated and amended. As a result of these recommendations the Limitation Act, 1939, was enacted. The law in England has been codified in 34 sections without any schedules. Actions are classified according to their nature and limitation is prescribed on that basis.

For common law actions founded on contract or tort a uniform period of 6 years has been provided. Actions to enforce recognisances, actions to enforce an award, where the submission is not by an instrument under seal, actions to recover any sum recoverable by virtue of any enactment other than a penalty or forfeiture or any sum by way of penalty or forfeiture are also governed by the same period of limitation. For actions for account and actions on a specialty, periods of 6 years and 12 years respectively have been provided. For actions relating to the recovery of land as well as for actions for the recovery of money charged on land, a period of 12 years is provided. Separate provision has been made for actions relating to trust, and actions against public authorities.

A special period of 30 years is provided for actions by or on behalf of the Crown. The Act then deals with the extension of periods of limitation in cases of disability, acknowledgment, part payment, fraud and mistake. It has not adopted the scheme of further dividing actions founded on contract or on tort as under the Indian Limitation Act. The period is made to run in each of these cases from the date when the cause of action accrues. The scheme adopted under the English Act is, therefore, simple and does not give much room for conflict of judicial opinion.

7. We proceed to examine the provisions of our Limitation Act with a view to see in what manner it can be simplified and modernised in the light of judicial decisions which have brought to light difficulties and doubts. We do not propose any substantial change in the structure of the Act and would accordingly retain its division, into sections and Articles.



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