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Report No. 89

42.21.Failure to deposit cost of paper book.- Article 122 has been differently interpreted as respects its application to the restoration of appeals dismissed for failure to deposit the cost of paper book. The Rajasthan High Court has observed1:

"An application for restoration of an appeal which is dismissed because of the failure of the appellant to pay the cost of preparing the paper books as required by Rules of High Court is governed by Article 168 of the Limitation Act (of 1908). Such a dismissal can only be called dismissal for want of prosecution and Article 168 applies to all cases where there is an application for re-admission of an appeal which has been dismissed for want of prosecution, even though the application may not be under Order XLI, rule 19, C.P.C."

In an old case, the Calcutta High Court held2 that such an application was made under the rules of the High Court and not under section 558 of Code of Civil Procedure, 1882 and is, therefore outside this article.

This view was also followed by the Patna High Court3.

1. Ram Niwas v. Sulaman, ILR (1951) 1 Raj 827 (829).

2. Ram Hari Sahu v. Madan Mohan Mitter, 1896 ILR 25 Cal 339 (347).

3. Minnie Lal v. Mahadeoll Marwari, AIR 1949 Pat 112 (para. 2): ILR 27 Pat 745.

42.22. The Mysore High Court1 has held that when the High Court has dismissed an appeal for non-payment of costs for preparation of paper book, such dismissal is in the exercise of the inherent powers under section 151 of the Code of Civil Procedure 1908, and the Limitation Act does not apply to an application for restoration of the appeal. The Court took the view that an application for restoration should be made within reasonable period, and what the reasonable period is depends upon the facts and circumstances of each case.

However, a contrary view has been taken by a ruling of the Full Bench of the Orissa High Court2 in which the expression "for want of prosecution" occurring in Article 122 has been given a wide connotation so as to cover any class of appeal dismissed for non-compliance with the High Court rules.

The point may not, in practice, arise very frequently. It is for that reason that we refrain from recommending a clarificatory amendment.

1. Baswantaraya v. Gurappa, AIR 1968 Mys 329 (330, 331).

2. Bimla Devi v. Patitapaban, AIR 1973 Ori 169 (171) (FB).

42.23.Article 123.- The next artic.-Article 123 reads as unde.-

"123. To set aside a decree passed ex-parte or to rehear an appeal decreed or heard ex-parte. Thirty days. The date of the decree or where the summons or notice as not duly served, when the applicant had knowledge of he decree.

Explanation.- For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1980, shall not be deemed to be due service."

In the Act of 1908, Articles 164 and 169 read as unde.-

"164. By a defendant, for an order to set aside a decree passed ex-parte. Thirty days The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.
169 For the re-hearing of an appeal heard ex-parte. Thirty days. The date of the decree in appeal or, where notice of the appeal was not dully served when the applicant has knowledge of the decree."

42.24.Law Commission Report on the Act of 1908.- The Law Commission had, in its Report on the Act of 1908, taken notice of the different interpretations of the expression "duly served" in column 3 of the relevant article and observed that it would be unjust to impute knowledge of the decree to a party when the party was not served with summons (in the ordinary manner). The recommendation1 of the Commission was to amend the article suitably on this point. The recommendation has been accepted, and an Explanation added in the article (by the Act of 1963) so as to ensure that substituted service is not 'due service' within the meaning of the article.2 No further change is needed in Article 123.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 175.

2. Cf. Kanshi Ram v. Bhagwan Kaur, AIR 1970 Punj 300.

42.25.Article 124.- Article 124 reads as unde.-

"124. For a review of judgment by a court other than the Supreme Court.

Thirty days.

The date of the decree or order.

Articles 161, 162 and 173 of the Act of 1908 read as unde.-

"161. For a review of judgment by a Court of Small Causes (other than a Presidency Small Cause Court) or by a Court invested with the jurisdiction of a Court of Small Causes when exercising that jurisdiction.

Fifty days.

The date of the decree or order.
162 For a review of judgment by any of the following Court, namely, the High Court of Judicature at Fort William, Madras, Bombay and Nagpur and the High Court of East Punjab in the exercise of its original jurisdiction.

Twenty days.

The date of the decree or order.
173 For a review of judgment except in the cases provided for by Articles 161 and 162.

Ninety days.

The date of the decree or order."

Corresponding articles in the Act of 1877 were 160A, 162 and 173, which we need not quote.

42.26. Court Fees Act and other aspec.-No change needed.- Articles 4 and 5 of Schedule 1 to the Court Fees Act, 1870 make a distinction between applications for review of judgment if presented on or after the ninetieth day from the date of decree (on the one hand) and applications presented before the ninetieth day from the decree. An applicant pays one-half court fee in the latter case. However, this is a matter separate from limitation.

Several other aspects of the article under consideration have practical importance, but the case law discloses no need for amendment or clarification of its wording.

42.27.Article 125.- Article 125 reads as unde.-

"125. To record and adjustment or satisfaction of a decree.

Thirty days.

When the payment of adjustment is made."

It corresponds to Article 174 of the Act of 1908 and to Article 173A of the Act of 1877. They read as unde.-

Act of 1808-

"174. For the issue of a notice under the same Code, to show cause why any payment make out of Court of any money payable under a decree or any adjustment of the decree should not be recorded as certified.

Ninety days.

When the payment or adjustment is

Act of 1877-

"173. For the issue of a notice under section 258 of the same Code, the show cause why the payment or adjustment therein mentioned should not be recorded as certified.

Ninety days.

The date of the decree or order."

42.28.Formal application.- Some controversy exists as to the need for formal application for recording an adoption. But the matter primarily relates to the law of procedure and an amendment in the form or substance of the Limitation Act would hardly be appropriate.

42.29.Article 126.- Article 126 reads as unde.-

For the payment of the amount of a decree by instalments.

Thirty days.

The date of the decree."

Article 175 of the Act of 1908 read "as unde.-

For the payment of the amount of a decree by i.

Six months.

The date of the decree."

The period of limitation in this article has been cut down to 30 days as envisaged by the Law Commission in its Report on the Act of 19081. The article needs no change.

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

42.30.Article 127.- Article 127 reads as unde.-

"To set aside a sale in execution of a decree, including any such application by a judgmen.- debtor .

Sixty days. (substituted in 1976 for "Thirty days.")1.

1. Section 98. Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976). Article 166 of the Act of 1908 was as unde.-

2.

"Under the same code to set aside a sale in execution of decree, including any, such application by a judgment - debtor.

Thirty days.

The date of the sale."

(The last seven words were added in 1927.)

In the Act of 1877, Article 172 read as unde.-

"By a purchase at an execution-sale to set aside the sale on the ground that the person whose interest in the property purported to be sold had no saleable interest therein.

Sixty days.

The date of the rate.

In the Act of 1871, Article 159 read as unde.-

"To set aside a sale in execution of a decree, on the ground of irregularity in publishing or conducting the sale.

Thirty days.

The date of the sale."


The Limitation Act, 1963 Back




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