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Report No. 3

Chapter XI

Applications

168. Firstly, as regards applications for special leave to appeal to the Supreme Court, the Supreme Court itself has, under the authority vested in it by law, provided the following periods of limitation for such applications:

(1) 90 days from the date of judgment or order sought to be appealed from,

(2) 60 days from the date of the refusal of leave to appeal by the High Court,

(3) Applications for special leave to appeal in a case involving death sentence, 30 days from the date of the judgment, final order or sentence.

Items (1) and (2) apply to civil as well as criminal matters. [Vide Order XIII, rule 1 & Order XXII, rule 1 of Supreme Court Rules. Item (3) is covered by Order XXI, rule 2]. In all these cases power is reserved to the Supreme Court to extend the time if sufficient cause is shown. These rules cover applications for special leave contemplated by Articles 136 and 132(2) of the Constitution.

169. New provisions are necessary prescribing periods of limitation for making applications to the High Court for a certificate of fitness to appeal to the Supreme Court in the following cases:

(1) for applications under Article 132(1) for a certificate that the case involves a substantial question of law as to the interpretation of the Constitution. (This applies to civil, criminal and other proceedings);

(2) for applications for a certificate under Article 133 (Civil matters);

(3) for applications for a certificate under Article 134(1)(c), (Criminal matters).

Article 179 of the Limitation Act as it now stands, provides a period of 90 days for applications under the C.P.C. and does not prescribe a period of limitation for other applications. A comprehensive provision has, therefore, to be made for applications to the High Court for a certificate of fitness for appeal to the Supreme Court. For all such applications a period of 30 days may be prescribed.

170. Article s 182 & 183.-

Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment-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 execution of a decree or order of any civil court should be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree) or where the decree or subsequent order, directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

There is, therefore, no need for a provision compelling the decree-holder to keep the decree alive by making an application every three years. There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable after a period of 12 years. In England also the time fixed for enforcing a judgment is 12 years. Either the decree-holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of a decree after that period.

To this provision an exception will have to be made to the effect that the court may order the execution of a decree upon an application 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 and the decrees of the High Court must be placed on the same footing as decrees of other courts. There is no justification for making a distinction between decrees or orders passed by the High Court in the exercise of their original civil jurisdiction or orders of the Supreme Court and other decrees.

As a consequence of the foregoing changes sections 19 and 20 will require to be altered in the manner indicated in paragraph 52 above. We do not, however, consider it necessary to make any change in the application of sections 14 and 15 to execution applications. The period of 12 years will, of course, not apply to decrees granting a perpetual injunction. This has been provided for in section 48, C.P.C. This exemption should apply only in the case of perpetual injunctions. In the case of mandatory injunctions, we recommend that a period of limitation of 3 years should be provided.

171. We are of opinion that some effective, nay, even drastic, provision is necessary to discourage, if not altogether stop the large-scale evasion of the execution of decrees by judgment-debtors. The decree of a court is meant to be obeyed and should be obeyed if courts are to command the necessary respect and confidence of the public. From the point of view of the decree-holder there is nothing so distressing as an infructuous execution application and it has been truly said that his troubles begin only after the decree.

The Rankin Committee has also adverted to this, but no steps have so far been taken, to make decrees effective and easily executable. We consider that the most effective way of instilling a healthy fear in the minds of dishonest judgment-debtors would be to enable the Court to adjudicate him an insolvent if he does not pay the decretal amount after notice by the decree-holder, by specifying a period within which it should be paid, on the lines of the Bombay amendment to the Presidency Towns Insolvency Act.

172. Article 158 and 178.-

Section 14 of the Arbitration Act, 1940 provides for the filing of an award in a court and under section 17 of the Act, the court must proceed to pronounce judgment according to the award. Section 32 bars suits to question the award. In the result, an award can be enforced only by filing it in court and obtaining a judgment thereon, and a suit cannot be filed on it. An award has to be filed even for the purpose of setting it aside. A provision is therefore, required fixing a time within which an arbitrator should file his award. Section 14(2) of the Arbitration Act provides that he shall file it into court (a) at the request of any party or peison claiming under him and (b) on an order from the court. It has been held by the various High Courts1 that Article 178 applies only to an application by the party to the court to direct the arbitrator to file his award into court.

The present position is that the arbitrator can file the award even after a party's application has been barred and he can do so even after a suit on the original cause of action has been instituted, as there is no limitation for his doing so (Gondalal Motilal v. Mathura Das Ram Prasad, AIR 1951 Nag 32). We consider that there should be a time limit for the arbitrator to file the award and that the period should be 30 days from the last date of service of notice of the making of the award on any of the parties. The Arbitration Act may be suitably amended to give effect to this recommendation.

1. Vide ILR (1942) 2 Cal 69; Kehri Mull v. Meg Raj, ILR 27 Pat 86 (Jagdish v. Sunder).

173. Article s 161, 162 and 173.-

Articles 161, 162 and 173 may be grouped together and a general Article for review of judgment may be provided, fixing a period of 30 days computed from the date of decree or order sought to be reviewed.

174. Article s 160, 163, 168 and 172.-

Articles 160, 163, 168 and 172 provide for setting aside orders of dismissal for default. For all these a period of 30 days from the date of dismissal may be provided.

175. Article 164 and 169.-

Article 164 for setting aside an ex parte decree may be retained and combined with Article 169 relating to the rehearing of an appeal heard ex parte. The term "duly served" in column 3 has been interpreted to include substitute service. We consider that it could be unjust to impute knowledge of the decree to a party when the party was not served with summons. The Article should be amended suitably.

176. Article s 165 to 167.-

Articles 165 to 167 deal with applications relating to execution matters. The existing period of 30 days may be retained.

177. Article 170.-

The existing provision in Article 170 for leave to appeal as pauper may be retained.

178. Article s 171, 176 and 177.-

Article 171 prescribes a period of 60 days from, the date of the abatement for setting aside the abatement and Articles 176 and 177 prescribe a period of 90 days from the date of death for having legal representatives of a deceased plaintiff or defendant or a deceased appellant or respondent added. For these cases the period may be reduced to 40 days. The court will have the power to excuse the delay in view of the alterations we have proposed in section 5 of the Limitation Act and hence there will be no hardship.

179. Article 159, 174 and 175.-

Article 159, 174 and 175 do not, in our opinion, require any change and they may be retained, in their present form.

180. Article 180.-

Articles 180 As we are omitting Article 182, Article 180 will apply to all purchasers in execution whether decree-holders or not. The period should, we think, be reduced to one year.

181. Article 181.-

There should be a residuary Article for applications (including petitions) as in the case of suits and we consider that the period should be the same as at present, namely, 3 years from the date when the right to apply accrues.



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