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Report No. 89

39.11.Recommendation.- In the light of the above discussion, we recommend that Article 98 should be revised so as to read as unde.-

"98. By a person against whom an order referred to in sub-rule (5) of rule 58 of Order XXI in the First Schedule to 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, where such a suit is permissible in law.

One year.

The date of the final order."

39.12.Article 99.- This takes us

"99. To set aside a sale by a civil or revenue court or a sale for arrears of Government revenue or for any demand recoverable as such arrears

One year.

When the sale confirmed or would otherwise have become final and conclusive had no such suit been brought."

Article 12 in the Act of 1908 read as unde.-

"12. To set aside any of the following sales:

One year.

When the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought."

(a)

sale in execution of a decree of a Civil Court;

(b)

sale in pursuance of a decree or order of a Collector or other officer of revenue;

(c)

sale for arrears of Government revenue, or for any demand recoverable as such arrears;

(d)

sale of a patni taluq sold for current arrears of rent.

Explanatio.-In this article, 'patni' includes any intermediate tenure saleable for current arrears of rent."

Article 12 of the Act of 1877 was in the same terms. Article 14 in the 1871 Act was also in the same terms.

39.13.Suits by Hindu son.- On the applicability of Article 99 to a suit filed by a Hindu son to have a court sale in execution of a decree against his father set aside, there exists a conflict of views. The first view is represented by a judgment of the Kerala High Court.1 It was a suit brought by Hindu son, alleging that his share in the joint family properties was not liable to be sold in execution of a decree obtained against his father and that the sale in execution was not binding on his share.

It was held that the son was by the decree against the father precluded from questioning the existence of the debt on which that decree was obtained, and that it was open to him to challenge the decree and the execution proceedings on the ground that the original debt itself was non-existent or fictitious. The court relied on a Madras judgment2 for holding that if the son's interest is found not to have been sold or if the execution sale is void as against him, it is unnecessary to make a prayer for selling aside the sale in a suit for recovering possession of his share and Article 12 of the Limitation Act, 1908 (present Article 99) can have no application to such a case.

The Punjab High Court3 dissenting from the above view, has held that in such cases the sale is a voidable one and not a void sale, with the result that such a suit by a Hindu son to have set aside a court sale in execution of a decree against his 'father is governed by Article 12(a) of the Limitation Act, 1908 (present Article 99). A Travancore-Cochin case takes the same view.4 A Supreme Court decision, while touching the point, does not settle this particular conflict.5

1. Lakshmandas v. Karimakaran, AIR 1957 Ker 126.

2. Lakshmadu v. Rinnudzi, AIR 1939 Mad 867.

3. Ajit Singh v. Hem Raj, AIR 1956 Punj 139.

4. Nellakanta Iyer Vanchiswara Iyer v. Narayana lyer Venkitasuhha lyer, AIR 1956 Tray-Co 262.

5. Faqirchand v. Harnam Kaur, AIR 1967 SC 727 (730) (see para. 39.17, infra.).

39.14. Confli.-the earlier comments.- The conflict dates back to the days when the draft Bill of the 1877 Act was circulated for comments. The problem was mentioned in the comments on the 1908 Bill.

39.15. Commen.-District Judge, Cuddapah (1877).- The District Judge, Cuddapah, commented1 in 1877 as under, when offering his suggestions on the Bill then circulate.-

"I have known repeated instances in which a suit brought really for the establishment of one's right to own and possess an immovable that has been the subject of a court sale has been wrongly dismissed as barred by the lapse of time as being a suit to set aside a sale and brought more than one year after the date of the sale. If there are suits that can properly be brought to set aside a sale ordered and effected by a court of Justice.

I think it desirable to introduce (the section) into words descriptive of the nature of such suits. In any case, something should be done to remove the impression that exists, perhaps very generally, that if C is ousted from his possession of an immovable in consequence of a sale to A of B's supposed right over that immovable, C cannot recover possession unless he sues within one year from the date of the sale being confirmed."

The starting time (in this Article 13) appears to me to be ill-chosen, inasmuch as ordinarily in this Presidency, at least the courts seem not to trouble themselves to confirm a sale unless and until a dispute about the regularity thereof actually arises and not always then."

1. J.H. Nelson. Esq., District Judge, Cuddapah to the Officiating Chief Secretary to Government, 2nd April, 1877, No. 34.

39.16. Commen.-Divisional Judge, Nagpur (1907).- Thirty years thence, when the Limitation Bill, which led to the Act of 1908 was circulated, the Divisional Judge, Nagpur,1 made the following commen.-

"Defendants frequently argue with subtle plausibility that a decree or order must be 'set aside' before a possessory relief can be obtained and try to put this and like short period of limitation in the way of the plaintiff. The counter-argument often is that it is not necessary to 'set aside' the order or decree as it is mere nullity by which the plaintiff is not bound. One expected that the Legislature would give an expression of its opinion in embarrassing cases of the kind unless it has taken some recent Privy Council cases (ILR 25 Born 337: ILR 32 Cal 296) as settling the controversy."

Unfortunately, the National Archives file does not show what action was taken on these comments, but the problem even, now survives, because, under section 6 of the Hindu Succession Act, 1956, the rights of a member of coparcenary in the Mitakshara coparcenary property have been saved.

1. Note by Rai Bahadur Sharat Chandra Sanyal, Divisional Judge, Nagpur, Accompaniment to F.S.A. Sloeeck Esq., I.0 S., Chief Secretary to Chief Commissioner, Central Provinces, dated 19-12-1907, No. 2063/V..-5, National Archives File, on Limitation Bill, 1908.

39.17.Supreme Court case.- The current conflict of views has been already adverted to1. Even though the Supreme Court has not, in so many words, ruled on this subject, there are observations in one case2 to indicate that the Court would treat such a sale as a voidable on.-

"It is the existence of the father's debt that enables the creditor to sell the property in execution of a money, decree against the father. Likewise, if a mortgage decree against the father directs the sale of the property for the payment of his debt, the creditor may sell the property in execution of the decree. It is true that the procedure for the execution of a money decree is different from that for the enforcement of a mortgage decree. A money decree is executed by attachment and sale of the debtor's property. For the execution of the mortgage decree, an attachment of the property is not necessary and the property is sold by force of the decree.

But this distinction in procedure does not affect the pious obligation of a Hindu son to pay his father's debt. As in the case of a money decree, under a mortgage decree also the property is sold for payment of the father's debt. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the Court to do compulsorily what the father could have done voluntarily.

The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suit. See Ramasamayyan v. Virasami Ayyar. Even where the mortgage is not for legal necessity or for payment of an antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt, which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality."

1. Para. 39.13, infra.

2. Fakir Chand v. Harnam Kaur.

39.18.Recommendation.- Without pronouncing upon the correctness or otherwise of the divergent views on the subject, it seems to us that the position should be clarified in this regard. Further, it is not proper that sword of a possible suit by the son of a Mitakshara coparcenary family should hang over his head for a long period. Consequently, we recommend that Article 99 should be, revised to read as under:

"99. To set asi.-

(a)

a sale by a civil or a revenue court, including sale of the coparcenary property of a Hindu undivided family governed by the Mitakshara law in execution of a decree obtained against the family, or

One year.

(As at present).

(b)

a sale for arrears of Government revenue or any demand recoverable as such arrears.

39.19.Article 100.- Article 100 reads us under:

"100. To alter or set aside any decision or order of a civil court in any proceeding other than a suit or any act or order of an officer of Government in his official capacity.

One year

The date of the final decision or order by the court or the date of the act or order of the officer, as the case may be."

Articles 13 and 14 of the Limitation Act, 1908 read as under:

13. To alter or set aside a decision or order of a civil court in any proceeding other than a suit.

One year

The date of the final decision or order in the case by a court competent to determine it finally.
14 To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for.

One year

The date of the act or order."

Parallel provisions in the 1877 Act (Articles 13 and 14) were identical:

"13. To alter or set aside a decision or order of a civil court in any proceeding other than a suit.

One year

The date of the final decision or order in the case by a Court competent to determine it finally.
14 To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for.

One year

The date of the act or order."

In the 1871 Act, Articles 15 and 16 read as under:

"15. To alter or set aside a decision or order of a civil court in any proceeding other than a suit.

One year

The date of the final decision or order in the case by a court competent to determine it finally.
16 To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for.

One year

The date of the act or order."

The two articles were put into one article (in place of Articles 13 and 14 of the Act of 1908) as Article 100. This change had been recommended by the Law Commission.1

1. Law Commission of India, 3rd Report, para. 149.

39.20.Meaning of the term 'Officer of Government'.- The expression "Officer of Government" (which occurs in the article) is nowhere defined. The Madras High Court1 as long back as 1895 was required to decide the status of a "kamam" with reference to Article 3 of Schedule II to the Small Cause Courts' Act (9 of 1897). The Court observed as under:

"Officers of Government are, no doubt, public servants, but every public servant is not an officer of Government. This is clear from the article itself in which the Court of Wards is expressly mentioned, indicating that otherwise it would not come within the article."

The Supreme Court, while deciding that the office of a Governor of a State is not an "employment"2 under the Government of India, referred to its earlier rulings3 in support of the proposition that a High Court Judge is not a Government servant and observed that a Judge of the Supreme Court also falls in that category.

1. Orr v. Neelamegam Pillail, 1895 ILR 18 Mad 395.

2. Hargovind v. Raghukul Tilak, AIR 1979 SC 1109.

3. (a) Union of India v. S.H. Sheth, AIR 1977 SC;

(b) Balder' Raj Gulani v. Punjab and Haryana High Court, AIR 1976 SC 2490.



The Limitation Act, 1963 Back




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