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Report No. 89

Chapter 44

Summary of Recommendations

We summarise in this Chapter the recommendations for amendment of the law contained in the preceding Chapters.

Sections

1. In section 3(2)(a)(ii), the expression "pauper" should be replaced by the expression "indigent person" (paragraph 3.2).

2. In section 4 (Court closed on the last day of the period of limitation), a clarification should be made regarding the combined applicability of sections 4 and 14. (Section 14 deals with infractuous legal proceedings) (paragraph 4, 3, read with paragraph 14.23).

3. In section 5, an Explanation should be added to the effect that erroneous legal advice given by a legal practitioner is a sufficient cause within the meaning of the section for admitting an appeal or application after the expiry of the period of limitation (other than an application for execution), if certain conditions are satisfied (paragraph 5.14).

4. Section 7 (legal disability of one person) should be redrafted to eliminate the ambiguity caused by the present use of the expression "time will not run" (paragraph 7.9).

5. Section 10, Explanation (which provides that for the purposes of the section any property comprised in certain endowments is deemed to be property vested in trust for a specific purpose and the manager of the property is deemed to be the trustee) should be extended to Sikh and Jain endowments. Further, two new sub-sections should be added to the section, to deal with the case where a trustee who is also a beneficiary under the trust receives or retains trust property or its proceeds as a share on a distribution of trust property made in good faith (paragraph 10.8).

6. Section 11 (suits on foreign contracts) should be widened so as to cov.-(a) proceedings other than suits, and (b) all causes of action arising in a foreign country (instead of being confined to foreign contracts, as at present) (paragraph 11.20).

7. In section 12 (exclusion of time in legal proceedings), the following changes should be mad.-

(a) the marginal note should be revised as recommended (paragraph 12.13);

(b) the Explanation should be revised by redrafting it so as to provide that any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be regarded as time requisite for obtaining the copy within the meaning of the section (paragraph 12.13);

(c) a new Explanation should be added to provide for a situation where there is a legal impediment to the preparation of a decree or order on account of a direction in the judgment or non-compliance with a direction or other legally permissible reason (paragraph 12.13);

(d) the expression "decree" for the purposes of this section should be defined to include the last paragraph of the judgment, where a copy of such paragraph is proposed to be used under Order 20, rule 6A, Code of Civil Procedure, 1908 (paragraph 12.13);

(e) a clarificatory Explanation should be added, declaring that the section applies to proceedings before quasi-judicial tribunals (paragraph 12.13).

8. In section 13 (exclusion of time taken in prosecuting an application for leave to sue or appeal as a pauper), the expression "indigent person" should be substituted for the expression "pauper"' (paragraph 13.4).

9. In section 14 (infructuous legal proceedings), the following amendments should be mad.-

(a) The explanation should be enlarged, so as to provide that the time reasonably necessary for performing journey from the place where the former civil proceeding was pending to the proper court is deemed to be time during which the former civil proceeding was pending (paragraph 14.23).

(b) A new sub-section (2A) should be inserted in section 14, to provide that in computing the period of limitation for any appeal, the time during which the appellant has been prosecuting with the diligence another civil proceeding, whether in a court of first instance or in a court of appeal or revision against the same party for the same relief, shall be excluded, where such a proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it (paragraph 14.23).

(c) In order to remove the controversy as to the combined applicability of sections 4 and 14, an Explanation should be added to section 4 to provide that for the purposes of that section, the word 'court' includes a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain she suit, appeal or application, as the case may be, provided the suit, appeal or application was prosecuted in good faith in that court. (Paragraph 14.23, read with paragraph 4.3.).

10. With reference to section 15 (defendant's absence from India), amendments should be made as unde.-

(a) An Exception should be inserted below section 15(5), to the effect that section 15(5) does not apply to a period during which both the parties were residing in one and the same foreign country and the plaintiff was aware of such residence of the defendant and there were, in the foreign country, properly constituted courts or tribunals to which the parties had, or could have had, recourse for enforcing the cause of action (paragraph 15.19).

(b) An Explanation should be added to the section to provide that the attachment of a decree does not amount to a stay of execution, (paragraph 15.19).

(c) Another Explanation should be added to provide that a defendant shall not be deemed to be absent from India during any period during which he had to the plaintiff's knowledge, a duly constituted agent in India authorised to institute and defend legal proceedings on his behalf in India (paragraph 15.19).

(d) As recommended by the Law Commission in its 13th Report on the Indian Contract Act, 1872, a new section should be inserted in that Act (the Contract Act) for resolving the controversy relating to the position of a decree obtained against one promisor out of a number of joint promisors (paragraph 15.19).

11. In section 17 (fraud and mistake), an Explanation should be inserted to provide that for the purposes of this section, "fraud" includes conduct on the part of the defendant or the opposite party, as the case may be, towards the plaintiff or the applicant, as the case may be, which, having regard to some special relationship between the parties, was unconscionable (paragraph 17.17).

12. In section 19 (part payment of a debt), the following amendments should be mad.-

(a) By suitable re-drafting, it should be emphasised that the section is confined to a suit or application for the recovery of a debt or legacy (paragraph 19.12).

(b) The present Explanation to the section should be enlarged so as to provide that the Explanation covers every type of immovable property, and also to provide that it covers not only the case of a mortgage, but also the case of a charge-holder in possession of the property (paragraph 19.12).

(c) An Explanation should be added to section 19, to provide that where payment on account of a debt or interest on a legacy is sought to be made by a negotiable instrument, then the tender of the negotiable instrument if accepted by the payee in such payment amounts to "payment" of the amount for the purposes of this section, whether or not the negotiable instrument is subsequently honoured (paragraph 19.12).

13. In section 21 (effect of subsequent addition of parties), the following changes should be mad.-

(a) The provisions of the section (at present confined to suits), should be extended to the addition of a party after the making of an application (paragraph 21.34).

(b) An Explanation should be inserted below sub-section (1), to provide that a person is deemed to have been made a party when the application for making him a party is made to the court. This will be subject to the present proviso to section 21(1), empowering the court to direct, in case of a mistake made in good faith, that as regards a newly added party the proceedings shall be deemed to have been instituted on any earlier date (paragraph 21.34).

(c) By amending section 21(2), it should be provided that the section does not apply to a suit or application by or against the members of a joint Hindu family to enforce a right or liability relating to the affairs of the joint Hindu family, where one or more of the members of the family, not originally impleaded is, in the course of the suit or application, brought on the record at the instance of the other party (paragraph 21.34).

14. Section 22 (continuing wrongs) should be re-drafted so as to provide that it applies in the case of a continuing breach of contract and in the case of a wrong independent of contract, and also that it applies whatever be the relief claimed (paragraph 22.13).

15. Section 23 (act not actionable without special injury) should be amended by substituting the words "specific damage" for the words "specific injury", and also by adding an Explanation to the effect that the section applies to a wrong which constitutes a breach of contract as also to an act which constitutes a wrong independent of contract (paragraph 23.15).

16. With reference to section 29 (savings regarding section 25, Contract Act, special and local laws, proceedings under a law relating to marriage and divorce and the Easements Act), the following recommendations have been mad.-

(a) Section 29(3) should be re-drafted as under:

"(3) Save as otherwise provided in any enactment for the time being in force providing for the dissolution of a marriage by a decree of divorce, or for the grant of other matrimonial relief, nothing in this Act shall apply to any suit or other proceeding under any such enactment" (paragraph 29.32).

(b) The Central Government should take action for specifically repealing the provisions in the erstwhile French and Portuguese Civil Codes governing limitation in force in the Union territories of Pondicherry and Goa respectively, after ensuring that no legal hiatus is created by such a repeal (paragraph 29.17).

(c) The State Governments of Tamil Nadu and Kerala should examine the points raised in certain judgments (referred to in Chapter 29), concerning the period of limitation provided by the Travancore Limitation Act (TV of 1100 N.E.), with a view to ensuring that no hardship is caused by the extended period of limitation allowed by section 20(1) of the Act in relation to deeds of further charge (paragraph 29.23).



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