JIGL CS Executive New Syllabus Notes

JIGL CS Executive New Syllabus Notes – Limitation Act

JIGL CS Executive New Syllabus Notes

Limitation Act, 1963

JIGL CS Executive New Syllabus Notes: This Act prescribe the time limits within which one can go to the Court of Law for the enforcement of his/her rights.

The intention of the Act is not to extinguish the legal rights of a person; it simply prescribes the timelines within which such legal rights can be enforced in the Court. (Bombay Dying & Mfg. Co. Ltd. v. State of Bombay)

It means parties to the dispute can settle the dispute in a legal manner outside the Court even if it is time barred by the this Act.

Concept is very simple. There should be some time limitations to the litigations otherwise there will be no end to the disputes.

This Act extends to whole of India except J&K.

Bar of Limitation (Section 3)

Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Prescribed Period means the period of limitation computed in accordance with the provisions of this Act. [Section 2(j)]

Thus it is the duty of Court not to entertain any time barred suit, appeal or application. Court can suo motu take note of question of limitation even if the defendant has not raised the point.

Section 3 does not deprive the Court of its jurisdiction
It should be noted that the intention of Section 3 is not to deprive the Court of its jurisdiction. Thus, decision of a Court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

JIGL CS Executive New Syllabus Notes

Expiry of prescribed period when court is closed [Section 4]

Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens.

Explanation.—A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.

Extension of prescribed period in certain cases (Doctrine of sufficient cause) [Section 5]

Any appeal or any application may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.—The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

No extension is available in case of application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908
An application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 is not covered by this section. It means no extension is available for such application. Order XXI of the Code of Civil Procedure, 1908 deals with the execution of Decrees and Orders.

No extension is available in case of suits
It should be noted that under Section 5 extension is available only in case of appeals or applications. No extension is available in case of suits because in most of the suits applicant has 3-12 years for approaching Court of Law.

What is sufficient cause for the purpose of Section 5?
Act has not defined the term ‘sufficient cause’. It depends upon case to case. No two cases can be treated alike. But it must be a cause which is beyond the control of the party. It should be noted that Court has discretion to extend or not to extend the period of limitation even after the sufficient cause has been shown.

Day by day explanation is required
The Supreme Court, in Ramlal v. Rewa Coal Fields Ltd., held that once the period of limitation expires then the appellant has to explain the delay made thereafter for day by day and if he is unable to explain the delay even for a single day, it would be deemed that the party did not have sufficient cause for delay.

Some Judicial observations

  1. As discussed above wrong practice of High Court which misled the appellant or his counsel in not filing the appeal should be regarded as sufficient cause under Section 5;
  2. In certain cases, mistake of counsel (lawyer/legal Adviser) may be taken into consideration in condonation of delay. But such mistake must be bona fide; However, ignorance of law is not excuse, nor the negligence of the party or the legal adviser constitutes a sufficient cause;
  3. Imprisonment of the party or serious illness of the party may be considered for condonation of delay;
  4. Time taken for obtaining certified copies of the decree of the judgment necessary to accompany the appeal or application was considered for condoning the delay.
  5. Ailment of father during which period the defendant was looking after him has been held to be a sufficient and genuine cause (Mahendra Yadav v. Ratna Devi & others).

But non-availability of the file of the case to the State counsel or Panel lawyer is no ground for condonation of inordinate delay (Collector and Authorised Chief Settlement Commissioner v. Darshan Singh and others).

Note:

  • The quasi-judicial tribunals, labour courts or executive authorities have no power to extend the period under this Section. Only Courts have such power.
  • Under this Section, no maximum time period is prescribed for the extension.

 

JIGL CS Executive New Syllabus Notes

Legal Disability (Section 6)

Where a person entitled to institute a suit or make an application for the execution of a decree is,

  • at the time from which the prescribed period is to be reckoned,

a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.

Where the disability continues up to the death of that person,

  • his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.

Where a person under disability dies after the disability ceases but within the period allowed to him under this section,

  • his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

Disability of one of several persons [Section 7]

Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all.

Where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

Note:

  • For the purposes of this section, the Manager of a HUF governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.

Special exceptions [Section 8]
Nothing in section 6 or in section 7

  • applies to suits to enforce rights of pre-emption (a right which can be exercised before opportunity is given to others), or
  • shall be deemed to extend, for more than 3 years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.

JIGL CS Executive New Syllabus Notes

Continuous running of time [Section 9]

Where, once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

But, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues. This is in order to prevent the administrator from taking advantage of his office in delaying the payment of debt he himself owes to the estate.  

It should be noted that this section is applicable only in case of suits and applications (not on appeals).

This rule has been taken from English Law. In Halsbury’s Laws of England, 4th Edition, Volume 28, Page 281, it has been provided that “Time which once begun to run will continue to run even though subsequent event occurs which make it impossible that an action should be bought.”

It should be noted that Section 9 contemplates a case of subsequent disability and not the initial disability. It talks about the cases where disability occurs after the accrual of cause of action. It is not applicable in the cases where disability subsists before or at the time of accrual of cause of action.

Example:
A house belonging to X is taken possession of by a trespasser. The period of limitation for the recovery of possession of the house is 12 years from the date of dispossession. X dies before the expiry of this period, leaving a minor son P, who attains majority after the period has expired, and bring suit for the recovery of the house in 14th year from the date of dispossession. Here P’s minority will not stop the running of limitation. This is because X died after the time started to run. 

Suits against trustees and their representatives [Section 10]
In spite of any provision of this Act, no suit against a person in whom property has become vested in trust for any specific purpose (trustee), or against his legal representatives shall be barred by any length of time.

Explanation.—For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.

Continuous running of time [Section 9]

Where, once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

But, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues. This is in order to prevent the administrator from taking advantage of his office in delaying the payment of debt he himself owes to the estate.  

It should be noted that this section is applicable only in case of suits and applications (not on appeals).

This rule has been taken from English Law. In Halsbury’s Laws of England, 4th Edition, Volume 28, Page 281, it has been provided that “Time which once begun to run will continue to run even though subsequent event occurs which make it impossible that an action should be bought.”

It should be noted that Section 9 contemplates a case of subsequent disability and not the initial disability. It talks about the cases where disability occurs after the accrual of cause of action. It is not applicable in the cases where disability subsists before or at the time of accrual of cause of action.

Example:
A house belonging to X is taken possession of by a trespasser. The period of limitation for the recovery of possession of the house is 12 years from the date of dispossession. X dies before the expiry of this period, leaving a minor son P, who attains majority after the period has expired, and bring suit for the recovery of the house in 14th year from the date of dispossession. Here P’s minority will not stop the running of limitation. This is because X died after the time started to run. 

Suits against trustees and their representatives [Section 10]
In spite of any provision of this Act, no suit against a person in whom property has become vested in trust for any specific purpose (trustee), or against his legal representatives shall be barred by any length of time.

Explanation.—For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.

JIGL CS Executive New Syllabus Notes

COMPUTATION OF PERIOD OF LIMITATION

Exclusion of time in legal proceedings [Section 12]

In computing the period of limitation for any suit, appeal or application,

  • the day from which such period is to be reckoned,

shall be excluded.

In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment,

  • the day on which the judgment complained of was pronounced and
  • the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed

shall be excluded.

Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order,

  • the time requisite for obtaining a copy of judgment

shall also be excluded.

In computing the period of limitation for an application to set aside an award,

  • the time requisite for obtaining a copy of the award

shall be excluded.

Explanation.—In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

Further, the term “time requisite for obtaining a copy” means the time which is reasonably required for obtaining such a copy.

JIGL CS Executive New Syllabus Notes

Exclusion of time in cases where leave to sue or appeal as a pauper is applied for [Section 13]

In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper (very poor person) has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded.

Exclusion of time of proceeding bona fide in court without jurisdiction [Section 14]

The relief to a person is given by Section 14 of the Act when the period of limitation is over, because another civil proceedings relating to the matter in issue had been initiated in a court which is unable to entertain it, by lack of jurisdiction or by any other like cause. The following conditions must co-exist for the applicability of this Section:

  • that the plaintiff or the applicant was prosecuting another civil proceedings against the defendant with due diligence;
  • that the previous suit or application related to the same matter in issue;
  • that the plaintiff or the applicant prosecuted in good-faith in that court; and
  • that the court was unable to entertain a suit or application on account of defect of jurisdiction or other like cause.

Exclusion of time in certain other cases [Section 15]

  1. Where institution of suit/application or execution of decree has been stayed by injunction or order
    In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
  1. Where previous consent or sanction of the Government or any other authority is required
    In computing the period of limitation for any suit
    • of which notice has been given, or
    • for which the previous consent or sanction of the Government or any other authority is required,

in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation.—In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.

  1. In case of Liquidation or Insolvency
    In computing the period of limitation for any suit or application for execution of a decree
    • by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or
    • by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company,

the period beginning with the date of institution of such proceeding and ending with the expiry of 3 months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.

  1. In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree,
    • the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
  1. Where the defendant has been absent from India
    In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.

JIGL CS Executive New Syllabus Notes

Effect of death on or before the accrual of the right to sue [Section 16]

  1. Where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application.
  2. Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application.
  3. Nothing in sub-section (1) or sub-section (2) applies to suits
    • to enforce rights of pre-emption or
    • for the possession of immovable property or of a hereditary office.

Effect of fraud or mistake [Section 17]

Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

  • the suit or application is based upon the fraud of the defendant or respondent or his agent; or
  • the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
  • the suit or application is for relief from the consequences of a mistake; or
  • where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him,

the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production.

Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.

JIGL CS Executive New Syllabus Notes

Effect of acknowledgment in writing [Section 18]

  1. Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
  2. Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Explanation.—For the purposes of this section,—

  1. an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or state that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,
  2. the word “signed” means signed either personally or by an agent duly authorised in this behalf, and
  3. an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

Effect of payment on account of debt or of interest on legacy [Section 19]

Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:

Explanation.—For the purposes of this section,—

  • where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
  • “debt” does not include money payable under a decree or order of a court.

Computation of time mentioned in instruments [Section 24]

All instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calendar.

Acquisition of easements by prescription [Section 25]

Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for 20 years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.

Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “20 years” the words “30 years” were substituted.

LIMITATION ACT AND WRITS UNDER THE CONSTITUTION

In the leading case, Tilokchand Motichand v. H.P. Munshi, it was held that

  • Limitation laws cannot become hindrance in the way of fundamental rights. Thus, The Limitation Act does not in terms apply to a proceeding under Article 32 or Article 226 of the Constitution.
  • But where the remedy in a writ petition corresponds to a remedy in an ordinary suit and latter remedy is subject to bar of a statute of limitation, the Court in its writ jurisdiction adopts in the statute its own rule of procedure and in absence of special circumstances imposes the same limitation in the writ jurisdiction.
  • Thus, if the right to property is extinguished by prescription under Section 27 of the Limitation Act, 1963, there is no subsisting right to be enforced under Article 32 of the Constitution.
  • Thus, where the remedy only, not the right, is extinguished by limitation the Court will refuse to entertain stale claims on the ground of public policy.

JIGL CS Executive New Syllabus Notes

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