AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 89

Chapter 18

Section 18: Acknowledgment

18.1. Section.-Effect of acknowledgment in writing.- Where a suit or application is in respect of any property or right, an acknowledgment of liability in respect of such property or right, made in writing signed by the party against whom the property or right is now claimed (or by his predecessor-in-interest), gives a fresh period of limitation, to be computed from the time when the acknowledgment was so signed. This is the gist of section 18(1). Section 18(2) deals with the cases in which oral evidence of the contents of the acknowledgment may be given.

The Explanation to the section, in clause (a), lays down that an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment etc. has not yet arrived, or is accompanied by a refusal to pay etc., or is coupled with a claim to set off, or is addressed to a person entitled to the property or right.

Under Explanation (b) to the section the expression "signed" means signed either personally or by an agent duly authorised in this behalf.

Explanation (c) provides that an application for the execution of a decree or order shall not be deemed to be an application in respect of property or right".

18.2. Execution.- It was as a result of the recommendations of the Law Commission1 that clause (c) of the Explanation modifying the earlier rules provides that an application for the execution of a decree or order does not make it equivalent to an application in respect of any property or right (section 18). It has similarly been provided that "debt" does not include money payable under a decree or order of a court (section 19)2. The Law Commission was of the view that in respect for execution there should be no scope for extension of time by acknowledgment or by part payments.

One writer, commenting on a judgment of the Madras High Court3, has observed4 that the Act of 1963 the earlier labyrinth of rulings on step in aid in execution have no relevance.

1. Law Commission of India, 3rd Report, (Limitation Act, 1908), para. 52.

2. Section 18, Explanation (c), section 19, Explanation (b).

3. Damodaraswami Naicker v. Sundararaan, (1972) 1 MLJ 346.

4. G. Venkatanarayanan Step-in-Aid steps out with Acknowledgment from Execution Proceedings, (1972) 2 MLJ (Journal) 13.

18.3. Person under disability.- Dr. Whitley Stokes in his Anglo-Indian Codes1 has made the following suggestion relevance to the sectio.-

"Section 19 (corresponding to section 18 of 1963 Act) should provide for the case of an acknowledgment or payment in favour of a person under disability or by a person absent from British India".

This suggestion has been repeated by U.N. Mitra in his book on the Law of Limitation & Prescription2.

1. 1. Stokes Anglo-Indian Codes, (1885), Vol. 2, (Adjective Law), p. 950.

2. U.N. Mitra Law of Limitation and Prescription, 9th Edn., p. 550.

18.4. Change not needed.- No decided case has, however, been noticed by us in which the courts have refused to grant the benefit of section 6 or section 15(5) (these are the relevant provisions in the present Act) in addition to the period of limitation, computed in accordance with sections 18 and 19 of the Act of 1963, that is, the benefit of a fresh starting point for such computation upon an acknowledgment or payment.

An attempt to clarify at this stage that sections 18 and 19 shall not preclude the taking into account of the provisions of section 6 and section 15(5) may lead to an unintended result that the other provisions of the Act which also provide for the exclusion of time in certain other specified cases are in derogation of the effect of sections 18 and 19. Consequently, even though we agree in substance with the approach of Dr. Whitley Stokes, we do not consider any amendment to the Act necessary on the point under discussion.

18.5. The English Amendment Act of 1980.- It would be of interest to compare the position in England. Unlike the phraseology used in sections 18 and 19 of the Indian Act, which provides beyond doubt that the acknowledgment or payment has to be made "before the expiration of the prescribed period", under the English Act1 an acknowledgment or part payment made outside the limitation period gave rise to a fresh cause of action except where the expiry of the limitation period has not simply barred the remedy, but extinguished the righ.-say, in case of claim for recovery of land or advowson.

But it should be mentioned that by the Limitation (Amendment) Act, 1980, which came into force on 1st May, 1980, the following sub-section has been, added at the end of section 28 of the principal Act:

"Subject to the proviso to the last foregoing sub-section, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment"

The effect of the new sub-section seems to be to prevent a cause of action from reviving once the limitation period has expired.

1. Section 25(5), Proviso and 29(6), Proviso, Limitation Act, 1939 (English).

2. Halawry's, 4th Edn., Vol. 28, p. 383, para. 393 and p. 408, paras. 910-911.

18.6. Change not needed in section 18.- So far as could be ascertained, no serious controversy exists at present on the form or substance of section 18 and we do not therefore see any need to recommend a change in the section.



The Limitation Act, 1963 Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys