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Report No. 3

Sections 19 and 20

50. The Civil Justice Committee expressed the view that clause 2 of section 19 is a fruitful source of false pleas and that the date is so essential a part of the acknowledgment itself that unless it is in writing like the rest of the acknowledgment it should not operate to save the bar of limitation. They therefore suggested an amendment to that effect to section 19. We do not think that this is necessary.

In England, oral evidence is admissible to prove the date and this was recognised in Edmunds v. Downes, (1854) 2 Cr&M 454 and Jayne v. Hughes, (1854) 10 Exch 430. See also Morrell v. Studd & Willingdon, (1915) 2 Ch 646 (658); Norton on Deeds, 2nd Edn., pp. 190 (191); Hlasbury's Laws of England, 3rd Edn., Vol. II, p. 403. Oral evidence was admitted even to show that the document was executed after the date which it bore. No alteration of the law was effected in England by the Limitation Act of 1939. If all the terms of a document are already in writing and if the date is missing it would be unjust and inequitable to deprive a party of the benefit of relying upon the document as constituting an acknowledgment by adducing evidence regarding the date of the document and thus supplying the omission.

51. The question whether an acknowledgment made after a transfer would bind a transferee has been considered by several High Courts and there have been conflicting decisions. It was, however, finally decided by the Privy Council in Bank of Upper India v. Robert Herecus, ILR 1942 All 660 that an acknowledgment made by the mortgagor to the mortgagee after parting with his interest does not bind the transferee. One would have thought that the language of section 19 is clear and does not give room for any divergence of opinion, for it requires that the acknowledgment of liability in respect of property or a right should be made in writing signed by the party against whom such property or claimed.

If, therefore, the right is claimed against A, it has to be established that there was an acknowledgment by him but that acknowledgment should not be availed of against B for there was' no acknowledgment by him. The law as settled by the Privy Council is in consonance with the language of the section. We do not think that any alteration is necessary. Part payment under section 20, however, stands on a different footing, as the section states that if there is a payment by the person liable to pay the debt, the period of limitation should be counted from the time when the payment was made but it does not state that such part payment should be taken into account against the payer only It saves the limitation against all persons for the debt, liability or right.

This was pointed out by the Madras High. Court in Thayyanayaki v. Sundarappa, ILR 1942 Mad 508 where the question was whether a part payment by a mortgagor who sold his equity of redemption but was liable on his personal covenant could give a fresh starting of time against the purchaser of the equity of redemption. The answer was in the affirmative and in support of that view the decision of the Privy Council in Lewin v. Wilson, 11 AC 630 was relied on. No alterations in sections 19 and 20 are required in this respect.

52. Sections 19 and 20 apply to execution applications also, as has been made clear in the Explanations to those sections. We recommend the deletion of Articles 182 and 183 and the substitution of the provisions of section 48 of C.P.C. As it is our intention that the time limit of 12 years laid down by that section should be absolute subject to the exception therein, we are of the view that there should be no scope for extension of time by acknowledgments and part payments in respect of execution' applications. Sections 19 and 20 should be amended suitably.

Limitation Act, 1908 Back

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