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Report No. 89

39.21. Commen.-District Judge, Cuddappah (1877).- The difficulty as of who is, and who is not an officer of Government is not of recent origin. Even when the draft Bill of the Act of 1877 was circulated for comments, the District Judge of Cuddapah1 observed:

"Article 15 contains the troublesome expression that I objected to, in remarking on the new Code of Civil Procedure, namely, 'Officer of Government'. What it means I have not the slightest idea. Is a District Judge one? Is a Batta Peon? Is a Magistrate? Is a 'public servant' as defined in the Indian Penal Code?

And, besides this, there is the same difficulty as in Article 13 as to what kinds of suits can be brought to set aside an act of an officer of Government, and being so brought, must be brought within one year from the date of the Act?"

1. Mr. J.S. Nelson, District Judge, Cuddap.-Letter No. 34, dated 2nd April, 1877 to the officiating Chief Secretary to Government, National Archives File, relating to 1877 Limitation Bill.

39.22. No need to define the term "Officer of Government..- Notwithstanding such queries and also the difficulties that do arise from time to time, we have come to the conclusion that the insertion of a definition of the expression "Officer of Government" may create problems. We would not therefore recommend any amendment in this regard.

39.23.Recommendation as to starting point under Article 100.- The third column of the article puts the date of the order as the starting point for the purposes of computation of limitation. It is based on the assumption that the order in question will be communicated to the affected party in good time. However, if, by negligence or over-sight, the order is not communicated, the person aggrieved would have no remedy if the communication is delayed by one year. To provide for such a contingency, we recommend that the third column of Article 100 should be revised to read as unde.-

"The date of communication of the final decision or order by the court, or the date of communication of the act or order of the officer, or, where there has been no such communication, the date on which the plaintiff first had knowledge of the act or order of the officer, as the case may be."

39.24.Article 101.- Article 101 reads as unde.-

"101. Upon a judment, including a foreign judgment, or a recognizance.

Three years.

The date of the judgment or recognisance."

In the Act of 1908, Articles 117 and 122 read as unde.-

"117. Upon a a foreign judgment as defined in the Code of Civil Procedure, 1908..

Six years.

The date of the judgment."
"122. Upon judgment obtained in the Provinces, or a recognizance.

Twelve years.

The date of the judgment or recognisance."

The corresponding provisions in the Act of 1877 were Articles 117 and 122, which read as unde.-

"117. Upon a a foreign judgment as defined in the Code of Civil Procedure.

Six years.

The date of the judgment."
"122. Upon judgment obtained in British India, or a recognisance.

Twelve years.

The date of the judgment or recognisance."

39.25.Law Commission's Report.- The Law Commission1, in its Report on the Act of 1908, observed that Articles 117 and 122 of the Act of 1908, relating to suits upon a foreign judgment and upon a judgment or recognisance, the periods prescribed being six years and twelve years from the date of judgment or recognisance, that in England, such suits were treated as suits on contracts. Adopting this principle, the Law Commission recommended a period of limitation of three years to bring the article on par with those dealing with contracts. The Law Commission also recommended the substitution of one composite article in place of two articles.

Accordingly, the present provision was enacted in 1963.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 158.

39.26.No change needed.- No further controversy has arisen in respect of the article and no amendment is, therefore, needed.

39.27.Article 102.- Article 102 reads as unde.-

"102. For property which the plaintiff has conveyed while insane.

Three years.

When the plaintiff is restored to sanity and has knowledge of the conveyance."

In the Act of 1908, Article 94 read as under:

"94. For property which the plaintiff has conveyed while insane.

Three years.

When the plaintiff is restored to sanity and has knowledge of the conveyance."

The corresponding provision in the Acts of 1877 and 1871 Acts was in identical terms.

39.28. Failure to make enquiri.-Does this postpone running of time.- The first point that arises for consideration in connection with this article is: if the plaintiff, upon attainment of sanity, wilfully neglects to make enquiries about the state of affairs of his property while he was insane, should such wilful default on his part postpone the running of time?

Dr. Whitley Stokes1 in his Anglo-Indian Codes, commented as unde.-

"For the purposes of Schedule II, Articles 32, 48, 90, 91, 92, 94, 95, 113, 114, 118 and 127 it should be declared that wilful ignorance is equivalent to, or carries with it the consequences of knowledge."

He quoted 4 Suth SCC Ref 19,9 Suth Civ. rule 329; 11 ibid 163, in support of his suggestion.

This suggestion about constructive knowledge being made the starting point of limitation has not, however, been countenanced, probably because it would lack exactitude in the matter of proof. We recommend no change as to the starting point.

1. Stoke Anglo-Indian Codes, (1889), Vol., 2, p. 949.

39.29.The period.- The second point that arises is as to the period, which is three years in actual practice, it may not be easy upon the person who has regained sanity to prove the date of knowledge of the conveyance; he would then be faced with the argument that the suit should have been brought within three years from the cesser of disability. In such cases the period available would cause hardship.

39.30.Recommendation to increase the period to six years in Article 102.- We are of the view that the period in Article 102 should be increased from 3 years to 6 years, having regard to the considerations mentioned above. We recommend accordingly.



The Limitation Act, 1963 Back




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