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Report No. 89

Chapter 39

Articles 97 to 112: Suits relating to Miscellaneous matters

39.1.Article 97.- Article 97 reads as unde.-

"97. To enforce a right of pre-emption whether the right is founded on law or general usage or on special contract.

One year.

When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered."

The corresponding article in the Limitation Acts of 1908, 1877 and 1871 was Article 10, which in the respective Acts read as unde.-

Act of 19.-

"10. To enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract.

One year.

When the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered."

Act of 18.-

Same as in the Act of 1908. Act of 1871

"10. To enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract.

One year.

When the purchaser takes, actual possession under the sale sought to be impeached."

39.2.Pre-emption laws.- Though the article recognises the right of pre┬Čemption in law as well as under general usage, most of the cases of pre-emption arose out of Acts passed by the State legislature in respect of agricultural land. However, many of the State laws granting a right of pre-emption have now been amended, abolishing that right.

39.3.No change needed.- Though there has been some controversy regarding the date when possession could be deemed to have been taken under the sale, the matter is integrally connected with the substantive law. We do not therefore recommend any change in the article.

39.4.Article 98.- Article 98 reads as unde.-

"98. By a person against whom an order referred to in rule 63 or in rule 103 of Order XXI of the Code of Civil Procedure, 1908 or an order under section 28 of the Presidency Small Cause Courts Act, 1882, has been made, to establish the right which he claims to the property comprised in the Order.

One year.

The date of the final order."

The corresponding articles in the Act of 1908 were 11 and 11 A, which read as unde.-

"11. By a person against whom any of the following orders has been made to establish the right which he claims to the property comprised in the order:
(1) Order under the Code of Civil Procedure, 1908, on a claim preferred to, or an objection made to the attachment of, property attached in execution of a decree;
(2) Order under section 28 of the Presidency Small Cause Courts Act, 1882.

One year.

The date of the final order."
11A. By a person against whom an order has been made under the Code of Civil procedure, 1908, upon an application by the holder of a decree for the possession of immovable property or by the purchaser of such property sold in execution of a decree, complaining of resistance or obstruction to the delivery of possession there of, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser to establish the right which he claims to the present possession of the property comprised in the order.

One year.

The date of the final order."

Corresponding provision in the Act of 1877 was Article 11, which we are not quoting.

Corresponding article in the 1871 Act was Article 15, which, again, we are not quoting. The reason is that the connected provisions have changed.

39.5.Starting point.- The adjective 'final', qualifying the word 'order' in the third column, did not occur in Article 11 of the 1908 Act. A controversy raged as to whether the starting point of limitation should be taken as the date of the order of the executing court passed in proceedings under Order 21, rule 58, Code of Civil Procedure, 1908 or the date of the final order of the revisional court (where the objector chose to challenge the order in revision).

The Kerala High Court,1 in a Full Bench judgment, by majority, decided that 'limitation for a suit under Order 21, rule 62 or 103, Code of Civil Procedure, runs from the date of the order of the executing court on the claim petition (under Order 21, rule 101, Code of Civil Procedure in the instant case) and not from the date of the order on an infructuous application for revision thereof.'

1. Thycattusari Church v. Sicilyamtna, AIR 1963 Ker 137 (FB).

39.6. The Kerala Judgment, being a case arising out of the old Limitation Act, would not throw light upon the interpretation of the expression 'final order' now occurring in the third column of Article 98 of the 1963 Act. The use of the word 'final' would now seem to shift the starting point of limitation from the date of the order of the executing court to the date of the order passed in revision, and an argument on this scope, as well as on the applicability of section 14 to such cases and the period available should not now arise. Moreover, as is elaborated below,1 the scheme of the procedural provisions with which Article 98 is linked has been radically revised in 1976.

1. See para. 39.7, infra.

39.7.Order 21, rule 58, C.P.C. as amended in 1976.- The very important amendment made in 1976 in the Code of Civil Procedure, 1908, concerning Order 21, rule 58, deserves to be noticed at this place. This amendment substantially implements the recommendation of the Law Commission1 in its Report on the Code.

1. Law Commission of India, 54th Report (Code of Civil Procedure, 1908), Chapter 21.

39.8.Scheme of the amended Code.- Under the amended Code of Civil Procedure, there has been a drastic change in the procedure, the mode of approach and the method by which the court should arrive at a decision, when an application under Order 21, rule 58 of the Code is filed. Under the law before 1976, such an investigation into a claim or objection was summary in its nature, and was, in a very large number of cases, liable to be set aside by a regular suit.

The present law, after 1976, on the other hand, making a significant departure in the method of disposals and adjudication of such claims and objections, contemplates a full enquiry into all questions, including questions of right, title and interest in the property. Its mandate is that the court inquiring into such a claim or objection shall determine all such questions. Except in the very limited number of cases mentioned in Order 21, rule 58(5) there is a total embargo on a separate suit.

Order 21, rule 58(4) now provides that the order made in such adjudication shall have the same force and be subject to the same conditions as to appeal or otherwise, as a decree. Thus, the order passed in these proceedings is a substitute for a decision in an ordinary litigation resulting in a decree.

The adjudication contemplated by amended Order 21, rule 58 as amended is not summary, the intention being that it should be like a decision rendered in a regular suit, and should result in an appealable decree, so that, in these very proceedings, the court could ultimately decide and adjudicate all questions, including questions relating to right, title or interest in the property attached, which might arise directly or indirectly between the parties.1

1. Southern Steelmet & Alloys Ltd. v. V.M. Steels, Madras, AIR 1978 Mad 270:ILR (1978) 3 Mad 140: (1978) 1 MLJ 468.

39.9.Scope of Article 98 now limited.- In other words, the scope of Article 98 is now confined to those very limited number of cases where in respect of claims or objections to an attachment, a suit can still be instituted or permitted under the Code of Civil Procedure (as amended in 1976). Once the claim filed in execution proceedings is entertained, and adjudicated, the adjudication by the court has now been given the status of a "decree". Hence, the scope for filing a suit to assert a claim in respect of the attached property is very limited after the amendment of 1976.

39.10.Change needed in Article 98.- It is desirable to amend the article in the light of the changed position as resulting from the amendment made in the Code of Civil Procedure. 1908. It is necessary that, in this article, the reference to the rules of Order 21, C.P.C. should be made more precise, by framing it as a reference to rule 58(5) of Order 21 of the Code, that being the only provision under which a suit can be filed to challenge any attachment.



The Limitation Act, 1963 Back




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