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Report No. 89

42.51.Report of the Law Commission.- The Law Commission had, in its Report1 on the Act of 1908, recommended a period of limitation of 30 days in respect of applications to the Supreme Court for special leave in a case involving death sentence. The Joint Committee, however, felt that the period was too short, and that it should be sixty days.

1. Law Commission on India, 3rd Report (Limitation Act, 19080 [Article 5(a)].

42.52.Suggestion of the Supreme Court.- With reference to this article, a suggestion of the Supreme Court has been forwarded to the Law Commission by the Legislative Department, being a suggestion made by the Registrar of the Supreme Court1 for amendment of the article in regard to cases where a party against whom a judgment or order has been pronounced by the High Court applies orally for a certificate of fitness to appeal. The difficulty felt in regard to this article may be thus stated in brief.

In some cases, in the High Court a request for a certificate of fitness for appeal to the Supreme Court is made by counsel orally. When this oral request is refused, the question as to whether a petition for special leave to appeal to the Supreme Court can be filed in the Supreme Court within 60 da.-clause (b) of Article 133 or within 90 da.-clause (c) of Article 133 of the Limitation A.-has arisen. Under Article 133(b), which deals with the cases of refusal of leave to appeal by the High Court, the period of limitation is 60 days.

Under Article 133(c), which applies "in any other case", the period of limitation is 90 days. The period of 60 days mentioned in Article 133, clause (b) is to be counted from the date of the order of refusal (by the High Court), while the period of 90 days mentioned in Article 133, clause (c), is to be counted from the date of the judgment or order of the High Court.

Once the High Court refuses leave (the correct expression is "certificate"), clause (b) would presumably apply and the proceeding can be filed in the Supreme Court only within 60 days from the date of refusal of the certificate. But, by adopting this course, the litigant is deprived of the benefit of the longer period of 90 days, which would, under Article 133(c), have been available to him, if he had come directly to the Supreme Court for special leave.

No doubt, the Supreme Court can condone the delay under section 5 of the Limitation Act in such cases, but in order to avoid unnecessary applications under section 5, it has been suggested that it is better to provide that in such contingencies the petitioner shall have the benefit of limitation whichever is more beneficial to him.

That means that where the date of order refusing a certificate and the date of the judgment appealed from are the same, the petition for special leave to appeal to the Supreme Court may be filed within 90 days. The Registrar of the Supreme Court has requested the Government to take appropriate steps for suitably amending the Limitation Act for bringing out above position.

1. Letter from the Registrar (Judicial), Supreme Court of India to the Secretary Government, Ministry of Law, Justice & Company Affairs, copy forwarded to the Law Commission by the Legislative Department under its O.M. No. 11(14)/82/Leg. IL dated 24th August, 1982.

42.53.Constitutional position as to appeal to Supreme Court.- We have carefully considered this suggestion, and are in broad agreement with it. Before we make our concrete recommendations in this behalf, it may be convenient to set out briefly the constitutional position. Under Article 136 of the Constitution, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter, passed or made by any court or tribunal in the territory of Ind.-with the exception of a court or tribunal constituted by or under any law relating to the armed forces.

In regard to judgments of High Courts, an appeal to the Supreme Court lies under Article 132(1), 133(1) and 134(1) of the Constitution in the specified cases on a specified ground, where the High Court gives the requisite certificate under Article 134A of the Constitution. In certain criminal cases involving a sentence of death, an appeal lies to the Supreme Court under Article 134(1) (a) and (b), even without a certificate.

Further, Article 134(2) and Article 135 deal with appellate jurisdiction conferred on the Supreme Court by Parliament by legislation and appellate jurisdiction in any matter exercisable by the Supreme Court inherited from the Federal Court, respectively. But we are concerned only with appeals where a certificate can be applied for.

42.54.Position as to limitation.- Now, while appeals from courts other than the High Court to the Supreme Court under Article 136 would, as regards the position for special leave filed in the Supreme Court, be governed by Article 133(c) of the Limitation A.-or in the rare case of death sentence imposed by some special court under statute by Article 133(a) of Limitation A.-applications for leave to appeal from judgments and orders of the High Court by special leave can fall either under Article 133(b) of the Limitation Act or under Article 133(c) of that Act.

If the certificate is applied for in the High Court and refused, clause (b) becomes applicable and only 60 days, it seems, would be available from the date of the order of refusal, while, if a direct application had been made to the Supreme Court, clause (c) would apply, giving a period of 90 days. This 90 days period is counted from the date of the judgment or order.

Where the date of the order of refusal is much later than the date of the judgment or order of the High Court, the litigant may stand to gain by relying on clause (b), but where the two are simultaneous, he would stand to lose if clause (b) is applied. This is the anomaly which is sought to be removed by the suggestion made by the Registrar of the Supreme Court, referred to above.

As far as we could understand, it is not the intention that clause (c) of Article 133 should be disturbed, the only change desired is to ensure that the litigant whose application in the High Court for certificate is refused should get 90 days from the date of the judgment, if the judgment of the High Court and the order of refusal are simultaneous. We do not see any objection to the acceptance of this suggestion and are recommending a re-draft of Article 133 to achieve the object.

42.55.Article 134A of the Constitution.- It should be mentioned at this stage that under Article 134A of the Constitution, every High Court passing or making a judgment etc. (appealable on certificat.-

"(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after passing or making of such judgment, decree, final order or sentence," determine, "as soon as may be after such passing or making", the question whether the certificate in question should be given in respect of that case. Thus, the Constitution contemplates that the grant or refusal of certificate shall be "as soon as may be" after the passing of the judgment etc. It can be presumed that in most cases the grant or refusal would be simultaneous or at least within a very short time. Hence, the amendment which we are contemplating would be of some practical utility.

42.56.Recommendation.- Accordingly, we recommend that Article 133 of the Limitation Act should be revised as under:

"133. To the Supreme Court for special leave to appeal.

(a) In a case involving death sentence;

Sixty days.

The date of the judgment, final order or sentence.
(b) In a case where a certificate of the nature referred to in Article 134A of the Constitution was refused by the High Court and the Order of refusal was passed on a date latter than the judgment or order in respect of which such leave was applied for.

Sixty days.

The date of the order of refusal.
(bb) In a case where a certificate of the nature referred to in Article 134A of the Constitution was refused by the High Court and the Order of refusal was passed on the same date as the judgment or order in respect of which such was applied for.

Ninety days

The date of the judgment or order.
(c) In any other case.

Ninety days.

The date of the judgment.

42.57.Article 134.- This takes us to Article 134, which reads as under:

"For deliver of possession by a purchaser of immovable property at a sale in execution of a decree.

One year.

When the sale becomes absolute."

Article 180 of the Act of 1908 read as under:

"By a purchaser of immovable property at a sale in execution of a decree for delivery of possession.

Three years.

When the sale becomes absolute."

There was no corresponding provision in the Acts of 1871 and 1877.

42.44.Reduction of period in 1963.- The period of Limitation (provided in Article 180 of the Act of 1908) has been reduced in 1963 to one year, upon the recommendation of the Law Commission.1 The Statement of Objects and Reasons annexed to the Bill states2 the reasons as under:

"As existing Article 182 is being omitted, Article 180, which, the proposed Article 133 (now Article 134) seeks to replace, will apply to all purchasers in execution whether decree-holder or not. The period, however, is being reduced to one year from three years."

1. Law Commission of India, 3rdd Report (Limitation Act of 1908), para. 180.

2. Statement of Objects and Reasons, Limitation Bill, 1962.

42.58.No change needed.- Certain controversies pertaining to this article have lost their importance after the amendment of Order 21, rules 97-101 of the Code of Civil Procedure in 1976. No change is, therefore, needed in the article.

42.59.Article 135.- Article 135 reads as under:

"For the enforcement of a decree granting a mandatory injunction

Three years.

The date of the decree or where a date is fixed for performance, such date."

There was no corresponding provision in the earlier enactments. The Law1 Commission in its Report on the earlier Act, recommended a period of three years in the case of mandatory injunctions.

Accordingly, this provision came to be enacted in 1963.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 170.

42.60. The provision has not given rise to any controversy, and hence no change is necessary. It may be mentioned that applications for such relief are excluded from general article as to executi.-Article 131.

1. Para. 42.61, infra.



The Limitation Act, 1963 Back




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