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Report No. 89

42.11.Law Commission's Report on the Act of 1908.- This matter was considered by the Law Commission1 in its Report on the Act of 1908. It recommended that there should be a time limit for the arbitrator to file the award, and that the period should be thirty days from the last date of service of notice of the making of the award on any one of the parties.

This recommendation of the Law Commission was not, however, accepted at the drafting stage. One of the comments2 received was that the arbitrator should have no right at all under the Arbitration Act to file an award in court by himself without the parties moving within 90 days or the court ordering him to file the award in court.

Another District Judge3 opposed the recommendation for curtailing the period of 90 days under Article 178. Ultimately, the article emerged as quoted above. We have no further suggestion to make on this point. It would seem that the filing of an award by an arbitrator need not be accompanied by an application4.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 172.

2. District Judge Shri J. Sambasivrao, Andhra Pradesh Legislative Department File (1963 Bill).

3. District Judge, Shri B.M. Nigam, Uttar Pradesh Legislative Department File (1963 Bill).

4. Cf. State v. Thomas, AIR 1973 Ker 262 (264, 265).

42.12. Recommendation as to Arbitration Act, 1940.- As to the scope of the words "otherwise invalid", which occur in section 30(b) of the Arbitration Act, 1940, the Law Commission1 in its Report on that Act has recommended that an Explanation should be added to section 30 as follow.-

"Explanation.- The expression 'or is otherwise invalid' includes the ground that there was no valid arbitration agreement or no valid reference to arbitration".

We reiterate this recommendation, which makes the statement of the law in the section comprehensive.

1. Law Commission of India, 76th Report (Arbitration Act, 1940).

42.13.Article 120.- Article 120 reads as unde.-

"Under the Code of Civil Procedure, 1908, to have the legal representative of a decease plaintiff or appellant or of a deceased defendant or respondent, made a party. Ninety days. The date of death of a the plaintiff, appellant, defendant or respondent as the case may be.

This article corresponds to Articles 176 and 177 of the 1908 Act, which read as unde.-

"176. Under the same Code to have the legal representative of a deceased plaintiff or of a deceased appellant made a party. Ninety days. The date of the deceased plaintiff or appellant.
177 Under the same Code to have the legal representative of a deceased Ninety days. The date of the death of the deceased defendant or respondent."

42.14.Applicability to proceedings under special law.- The Delhi High Court1 has held that under section 53 of the Land Acquisition Act, 1895, the provisions of Order 9 as well as Order 22 of the Code of Civil Procedure, 1908 apply to proceedings before the District Court under that Act and the District Court must bring the legal representatives on record on the death of a party to such proceedings; at the same time, the court held that the provisions of the Limitation Act would not be attracted, and the application for substitution should be made within reasonable time.

1. Union of India v. Sanwalia, ILR 1975 Del 837.

42.15. On principle, a person whose land has been acquired and who claims more compensation than that given by the Collector should be vigilant, and, if the original owner dies during the pendency of the proceedings, it should be obligatory for the legal representative of the deceased to apply for being brought on record in the same mann.-as he would do if the deceased was a plaintiff in a regular civil suit.

To permit the legal representative to apply within a "reasonable time" might encourage undue pendency of the proceedings. However, we are not recommending an amendment of the Limitation Act, as this question has to be dealt with in the special laws, rather than in the Limitation Act.

We may incidentally mention here that in discussing certain other sections, we have dealt with the position of Tribunals.1

1. See discussion as to section 29 and Article 137.

42.16. Starting point.- The third column of the article under discussion speaks about the date of death of the plaintiff (or the appellant, defendant or the respondent), as the Starting point of limitation. The Supreme Court (in another context), while interpreting Article 171 of the Act of 1908 (corresponding to present Article 121), held1 that the date of the appellant's knowledge of the death of deceased respondent was irrelevant for the purposes of computation of time under that article.

However, the Judicial Commissioner, Goa has held2 that the period of limitation under Article 120 starts on the day on which the parties opposing the deceased party acquire knowledge of the death of the deceased. When it was argued that the text of column 3 leaves no margin to accommodate such an interpretation, the Court observe.-

"However, it seems to me that if such an interpretation had been accepted, it would lead to starting results in cases in which deliberately or otherwise the death of a party was kept in secret by the party interested in not having the heirs brought on record in time so that they might raise the defence of limitation. The party who did not have the knowledge of the death would in such circumstances be put in serious jeopardy. This leads me to believe that the interpretation placed by Shri Usgaonkar on the passage quoted above ig,rtot correct.

The words 'the date of death of the plaintiff, appellant, defendant or respondent, as the case may be' apply to the heirs or legal representatives of the plaintiff, appellant, defendant or respondent as the case may be when such heirs or legal representatives have the duty of being brought on record or the duty of informing the other side about the fact of the death. The period of limitation under Item 120, therefore, starts on the day on which the parties opposing the deceased party acquire knowledge of the death of the deceased."

1. Union of India v. Ram Charan, AIR 1964 SC 215 (220) (case under Article 121).

2. Polpoto v. Nilkhant, AIR 1972 Goa 31.

42.17. No other case has come to our notice to support the interpretation of the Judicial Commissioner, Goa, and in a sense, such an interpretation, with respect, runs counter to the one placed by the Supreme Court on Article 171 of the Act of 1908.

42.18.No change needed.- Nor does the present position really cause serious hardship. An abatement that follows on non-substitution can be set aside under Article 121, and, in regard to an application under that article, section 5 of the Act is also applicable.

Bona fide ignorance of the death of a party is sufficient cause in this context.1

1. Order 22, rules.-5, Code of Civil Procedure, 1908, as inserted in 1976.

42.19.Article 121.- Article 121 reads as unde.-

"Under the same code for an order to set aside an abatement. Sixty days. The date of abatement."

Article 171 of the Act of 1908 reads as unde.-

"Under the Code of Civil Procedure, 1908, for an order to set aside an abatement. Sixty days. The date of abatement."

This article has not given rise to any controversy, and needs no change. It should be noted that though the period is sixty days, it can be extended under section 5. Further, ignorance of death is a factor to be taken into account in applying section 5.1

1. Order 22, rule 4(5), Code of Civil Procedure, 1908 as inserted in 1976.

42.20.Article 122.- Article 122 reads as unde.-

"To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Thirty days. Date of dismissal."

Articles 160, 163, 168 and 172 of the Act of 1908 read as unde.-

"160. For an order under the same code, to restore to the file an application for review rejected in consequence of the failure of the applicant to appear when the application was called on for hearing. Fifteen days. When the application for review rejected.
163 By a plaintiff for an order to set aside a dismissal for default of appearance or for failure to pay costs of service or process or to furnish security for costs. Thirty days. The date of dismissal.
168. For the re-admission of an appeal dismissed for want of prosecution. Thirty days. The date of dismissal.
172 Under the same Code by the assignee or the receiver of an insolvent plaintiff or appellant for an order to set aside the dismissal of a suit or an appeal. Sixty days. The date of the order dismissal."

The corresponding provisions in the 1877 Act were contained in Articles 160, 162, 168 and 171, which need not be quoted.

On the recommendation of the Law commission,1 Articles 160, 163, 168 and 172 of the Act of 1908 were consolidated into one article, and a uniform period of 30 days from the date of dismissal has been provided in the present Act.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 174.



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