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Report No. 3

Appendix III

Suggestions in Respect of other Acts

1. Contract Act.-

(1) The definition of the word 'Contract' should be amplified to include 'quasi contracts', consistently with the trend of modern opinion in other countries in favour of accepting the principle of restitution of unjust benefit or unjust enrichment as the basis of claim.

(2) The decision of the Madras High Court in Annapurnamma v. Akayya 36 Mad 554 is that one joint creditor could give a valid discharge so as to bind the other. The other High Courts have taken a different view. The latter view should be confirmed as the correct view by suitable amendments to section 38 of the Contract Act.

II. Specific Relief Act.-

Section 9 of the Act has encouraged unnecessary litigation as any decision in a suit under that provision is not final, whatever be the decision, another regular suit to establish title is always open and is generally filed. The section should be deleted.

III. Civil Procedure Code.-

(1) The provisions relating to claim petitions and claim suits help only to encourage multiplicity of proceedings. The same questions as regards claims and objections are first decided in summary proceeding and the parties are then driven to suits under Order 21, rules 63 and 103. It would be better if the claims or objections at the petition stage are themselves treated as suits and disposed of.

(2) Section 48 of the C..C. providing an absolute period of limitation for execution applications may be deleted as a consequence of the provisions therein being taken over to the Limitation Act.

(3) The definition of decree in section 2(2) should include awards under section 11 of Land Acquisition Act.

IV. Insolvency Acts.-

The most effective way of instilling a healthy fear in the minds of dishonest judgment-debtors would be to provide that if a decree for money remains unsatisfied for a period of six years it would constitute an act of insolvency and the court may, on the application of the decree-holder declare the judgment-debtor as an insolvent. Such a provision has been made by the Bombay Amendment to the Presidency Towns Insolvency Act and a similar provision may be adopted for the rest of India.

V. Land Acquisition Act.-

(1) The award by the Collector under section 11 should be made enforceable by treating it as a decree within the meaning of section 2(2) of the C.P.C.

(2) A time limit, say 6 months, should be fixed within which the Collector must pay or deposit the compensation and on application by any person interested, the court may direct the deposit of the amount in court.

VI. Succession Act.-

(1) The provisions in the Legal Representatives' Suits Act and the Fatal Accidents Acts relating to the question of survival of the cause of action should be brought under the Succession Act by amending section 306 appropriately.

(2) Actions for malicious prosecution should be brought within the exception to section 306.

VII. Legal Representatives' Suits Act.-

The provision which prescribes that the actions should be in respect of a wrong committed within one year before the death should be deleted having regard to the period of limitation now proposed, for such actions, viz., three years from the date of cause of action.

VIII. Arbitration Act.-

An award can be enforced only by filing it in court and obtaining a judgment thereon and a suit cannot be filed on the award. Even to set aside an award, it is necessary to have it filed first. Provisions such as those in section 37(2) recognising partial or preliminary arbitrations would seem to need revision, (para 172). A time limit of 30 days should also be prescribed for the arbitrator to file the award.

IX. Transfer of property Act.-

It is doubtful whether in view of the definition of 'English mortgage' in the Act, the mortgagee under this mortgage would be entitled to recover possession. The position should be clarified.

X. Easements Act.-

The Act should be extended so as apply to the whole of India.

Limitation Act, 1908 Back

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