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Report No. 89

Article 118 to 136: Applications in specified cases

46. Article 118 (application for leave to appeal and defend a suit under summary procedure) prescribes a time limit of 10 days, to be computed from the date when the summons is served. There is a proposal by the Government of Maharashtra for increasing the period to 30 days, connected with a proposal to simplify the provisions of the Code of Civil Procedure, 1908 relating to summary procedure (Order 37, C.P.C.) so as to reduce the various stages of trial under that procedure.

The Commission is of the view that the proposal of the State Government may be viewed favourably in principle, and if the working of the amended procedure in the State of Maharashtra (when the amendment materialises) is found to be successful, a similar amendment can be taken up on an all-India basis in the Code of Civil Procedure, 1908 and in Article 118, Limitation Act, 1963 (paragraph 42.7).

47. In the discussion relating to Article 119 (certain applications under the Arbitration Act, 1940), the recommendation made in the 76th Report of the Law Commission, (Report on the Arbitration Act, 1940) for amending section 30(b) of that Act, in order to clarify the scope of the expression "or is otherwise invalid" has been re-iterated in the present Report (paragraph 42.12).

48. Article 127 prescribes a period of limitation of 60 days for an application to set aside a sale in execution of a decree, including any such application made by a judgment debtor. [This is the position after the amendment of the article in 1976]. However, in Order 23, rule 92(2), Code of Civil Procedure, 1908, the time limit for making the requisite deposit for setting aside the sale is 30 days, thereby creating a discrepancy with Article 127 of the Limitation Act. The discrepancy between the two sets of provisions should be removed by increasing the time limit in Order 21, rule 92(2) of the Code of Civil Procedure to 60 days (paragraph 42.35).

49. Article 130 (application for leave to appeal as a pauper, made to various courts) should be amend.-(a) by prescribing, in the second column, the same period of limitation as is applicable to the appeal in respect of which the leave is sought, and

(b) by substituting, for the word "pauper", the words "indigent person" (paragraph 42.43).

50. Article 131 (application to a court for revision) at present provides that the period of limitation (90 days) is to be computed from the date of the decree, order or sentence sought to be revised. The recommendation is that the period should be computed from the date when the applicant for revision had knowledge of the decree, order or sentence (paragraph 42.46).

51. Article 132 (application to a High Court for certificate of fitness to appeal to the Supreme Court under the specified provisions of the Constitution) should, in its first column, be revised by carrying out certain verbal changes as recommended in the Repo.- a recommendation made in view of the changed phraseology of the relevant constitutional provisions (paragraph 42.49).

52. Article 133 (application to the Supreme Court for special leave to appeal) should be revised as recommended, in view of certain anomalies brought out in regard to cases where the High Court had orally refused the grant of a certificate of fitness on the very date on which the judgment sought to be appealed from was pronounced by the High Court (paragraph 42.56).

Article 137: Applications for which no specific period is provided

53. No changes are recommended in Article 137 (Chapter 43).

K.K. Mathew,
Chairman.

Nasirullah Beg,
Member.

J.P. Chaturvedi,
Member.

P.M. Bakshi,
Member (Part-time).

New Delhi,
Dated: February 28, 1983.



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