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Report No. 89

42.41. Article 1.-Recommendation.- This takes us to Article 130 which reads as unde.-

"130. For leave to appeal as a pauper-
(a) to the High Court

Sixty days.

The date of decree appealed from.
(b) to any other court.

Thirty days.

The date of decree appealed from."

Article 170 of the 1908 Act, Article 170 of the 1877 Act and Article 162 of the 1871 Act read as unde.-

"170. For leave to appeal as a pauper.

Thirty days.

The date of the decree, appealed from.
170 For leave to appeal as a pauper.

Thirty days.

The date of decree appealed against.
162 For leave to appeal as a pauper.

Ninety days.

The date of the decree appealed. against.

42.42.Pre-1963 position.- Prior to 1963, a uniform period of limitation of 30 days was prescribed for an application for leave to appeal as a pauper. The present article provides for two different periods, namely, 60 days and 30 days. The change was made at the committee stage.

42.43.Recommendation as to Article 130.- We are of the view that the period prescribed for such leave should be the same as that prescribed for the appeal, and that this principle should be applied to all courts. Such a procedure should, we believe, work smoothly. If ultimately the leave to appeal as an indigent person is granted, the application can be converted into an appeal.

If such leave is not granted, the court would generally grant time for the payment of court fees and (where the limitation period for appeal has already expired), allow condonation of delay under section 5. In either case, a period identical with the period prescribed for the appeal itself would cause no inconvenience.

Accordingly, we recommend that Article 130 should be revised as unde.-

"130. For leave to appeal as an indigent person to any court.

The same period as is prescribed for the appeal in respect of which the leave is sought.

The date of decree appealed from."

42.44.Article 131.- This takes us to Article 131. It reads as unde.-

"To any court for the exercise of its powers of revision under the Code of Civil Procedure, 1908, or the Code of Criminal Procedure, 1898.

Ninety days.

The date of the decree or order or sentence sought to be revised."

There was no corresponding provision in the earlier enactments, though the practice of the High Courts generally laid down a time limit of 90 days. The Law Commission, in its Report1 on the Act of 1908, recommended the incorporation of a new provision for making an application to any court for the exercise of its powers of revision under the C.P.C. or Cr.P.C. and recommended a period of limitation of 30 days. The Joint Committee, in its Report, however, observed that the period of thirty days was too short and recommended that it should be ninety days. That is how the Article came to be enacted.

1. Law Commission of India, 3rd Report (Limitation Act, 1908) suggested Article 57.

42.45.Case law as to starting point.- A question concerning the starting point under Article 131 needs attention. In framing this Article, it was presumed that the aggrieved person would be so connected with the proceedings affecting him that the date of the decree or order or sentence passed in the proceeding will be known to him immediately, because he would (in all probability) be present in court at the relevant time, or will be notified by his counsel about the order affecting him. But this is not always the case in reality. A Gujarat case illustrates the matter.1

An auto rickshaw was seized as a conveyance used for theft. The rickshaw was the subject matter of hire purchase. Neither the real owner of the auto rickshaw, nor the one to whom it was given on hire purchase, was directly connected with the case relating to theft. A revision was preferred by one Balamal against the order of seizure of the auto rickshaw. It was discovered that if Article 131 was to be taken literally, the revision would be barred by time, as being beyond ninety days of the date on which the order of seizure was passed.

Shelat, J. (as he then was), realising the hardship that would arise if column 3 of the Article were given a literal meaning, relied upon the observations of the Supreme Court in an earlier case2 where the expression "the date of the award" in section 18(2) of the Land Acquisition Act, 1894, was construed as requiring either actual or constructive knowledge of the order. Such knowledge was an essential requirement for fair play and natural justice.

The Supreme Court had in that case, refused to put a literal or mechanical construction on the expression "from the date of the Collector's award", used in the proviso to section 18. On the basis of this reasoning, Shelat, J. held that it would be reasonable and fair that the period of ninety days (in Article 131) should also run from the date of the knowledge of the order, and not from the date of the order.

1. Balamal v. State of Gujarat, AIR 1970 Guj 26 (29, 30): 1970 Cr LJ 46.

2. Harish Chandra v. Deputy Land Acquisition Officer, AIR 1961 SC 1500.

42.46.Recommendation.- With a view to preventing recurrence of the injustice which may result from a mechanical construction being placed on the language occurring in column 3 of Article 131, we recommend that column 3 of the article should be revised as follow.-

"When the applicant had knowledge of the decree or order or sentence sought to be revised."

In the first column of the Article, the reference to the Code of Criminal Procedure, 1898, should be replaced by a reference to the present Code of 1973.

42.47.Article 132.- Article 132 reads as unde.-

"132. To the High Court for a certificate of fitness to appeal to the Supreme Court under clause (1) to Article 132., Article 133 or sub-clause (e) of clause (1) of Article 134 of the Constitution or under any other law for the time being in force.

Sixty days.

The date of the decree, order sentence."

Articles 153 and 179 of the 1908 Act read as unde.-

"153 Under the same Code to a High Court from an order of a Subordinate Court refusing leave to appeal to His Majesty in Council.

Thirty days.

The date of the order.
179 By a person desiring to appeal under the Code of Civil Procedure, 1908 to His Majesty in Council for leave to appeal.

Ninety days

The date of the decree appealed from."

In the Act of 1877, Articles 153 and 177 read as unde.-

"153. Under the same, Code, section 601, to a High Court.

Thirty days.

The date of the order refusing the certificate.
177 For the admission of an appeal to Her Majesty in Council.

Six months.

The date of the decree appealed against."

42.48.Law Commission Report.- The Law Commission, in its Report on the Act of 1908 observed,1 that new provisions prescribing periods of limitation were necessary for making applications to the High Court for a certificate of fitness to appeal to the Supreme Court. Article 179 of the Limitation Act, 1908, as it then stood, provided a period of 90 days for an application under the Code of Civil Procedure and did not prescribe a period of limitation for other applications.

The Law Commission recommended that a comprehensive provisions should be made as to the limitation for applications to the High Court for a certificate of fitness for appeal to the Supreme Court, and that, for all such applications a period of 30 days might be prescribed. But the Joint Committee felt that the period of 30 days was too short and that the period should be 60 days.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 169.s 42.49.Recommendation.- This newly added provision has not given rise to any controversy. However, in view of the amendments that have been made in the Constitution1 it would be proper to revise the wording of Article 132 of the Limitation Act so as to make it conform to the changed constitutional phraseology.

Accordingly, we recommend a redraft of the first column of Article 132 as unde.-

Article 132, First Column (Revised)

"To the High Court for a certificate of the nature referred to in clause (I) of Article 132, clause (1) of Article 133 or sub-clause (c) of clause (1) of Article 134 of the Constitution, read with Article 134A thereof, or under any other law for the time being in force."

1. Article 132, 133, 134 and 134A of the Constitution.

42.50.Article 133.- This takes us to Article 133, which reads as unde.-

"To the Supreme Court for special leave to appea.-
(a) in a case involving death sentence;

Sixty days.

The date of the judgment, final order or sentence.
(b) in a case where leave to appeal was refused by the High Court;

Sixty days.

The date of the order of refusal.
(c) in any other case.

Ninety days.

The date of the judgment or order."

There was no corresponding provision in the earlier Acts.



The Limitation Act, 1963 Back




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