âLaw Masterâsâ
âComputation of period of limitationâ
Prof. .S. D. Bhosale
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(..23..)
COMPUTATION OF PERIOD OF LIMITATION
QUESTION BANK
1. Discuss the provisions relating to âcomputation of period of limitationâ under the
Limitation Act., 1963.
2. Explain the effect of continuing breach of contract and continuing tort on the
computation of period of limitation.
3. Explain âexclusion of time or proceeding âbonafideâ in court without jurisdiction as
provided under the Limitation Act.
4. What is acknowledgment? State the essentials of valid acknowledgment under the
Indian Limitation Act?
5. Explain the provision relating to extension and suspension of limitation.
SHORT NOTES
1. Effect of fraud or mistake.
2. Exclusion of time spent in legal proceedings.
3. Acknowledgment.
SYNOPSIS
1) Exclusion of time in legal proceedings (S. 12)-
2) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for (S.
13)-
3) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
4) Exclusion of time in certain other cases (S. 151)-
5) Effect of death on or before the accrual of the right to sue (S. 16)-
6) Effect of fraud or mistake (S. 17)-
7) Effect of acknowledgement in writing (S. 18, 19 and 20)-
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8) Effect of substituting or adding a new plaintiff or defendant (S. 21)-
9) Continuing breaches and torts (S. 22)-
10) Suits for compensation for acts not actionable without special damage (S. 23)-
Note-
1) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
Explanation clause (a)-
Explanation clause (b)-
Explanation clause (c)-
(2) Effect of fraud or mistake (S. 17)-
Exception-
3) Acknowledgment-
(1) Effect of acknowledgment (S. 18)-
Explanation (a) to S. 18-
Explanation (b) to S. 18-
(2) Effect of payment on account of debt etc (S. 19)-
3) Effect of acknowledgment or payment by another person (S. 20)-
Explanation S. 20 (3) (a)-
4) Continuing breach and torts (S. 22)-
Continuing breach of a contract-
Continuing tort-
Ss. 12 to 18 of the Limitation Act deal with the computation of the period of
limitation. In other words, it points out how the period or time shown in the IInd column
of the Schedule is to be computed.
These sections point out what days or periods have to be excluded or extended from
the calculation of the limitation period. There is no necessity for any prayer or application
by the party for the exclusion of the period provided by these sections. It is the duty of the
court to exclude such time.
For the purpose of the computing period of limitation under the Limitation Act, the
Gregorian Calendar (i.e. British Calendar) is to be used (S. 24).
The rules relating to the computation of the period of limitation are as follows-
1) Exclusion of time in legal proceedings (S. 12)-
S. 12 has laid down the following rules relating to exclaiming some days from the
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âComputation of period of limitationâ
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computing period of limitation-
(i) In the computing period of limitation prescribed for a suit, appeal or application, the day
on which time begins to run shall be excluded.
(ii) In computing the period of limitation prescribed for an appeal, the following period
shall be excluded-
(a) the day on which the period begins to run;
(b) the day on which the judgment was pronounced.
(c) the time requisite for obtaining a copy of the decree, sentence or order.
(d) the time requisite for obtaining a copy of the judgment.
(iii) In computing the period of the limitation prescribed for an application for revision or
review or leave to appeal, the following periods shall be excluded-
(a) the day on which the time begins to run;
(b) the day on which the judgment was pronounced;
(c) the time requisite for obtaining a copy of the decree;
(d) the time requisite for obtaining a copy of the judgment.
(iv) 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.
However, the time between the date on which the copy is ready and the date on
which it is actually taken delivery by the party cannot be excluded.
2) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for
(S. 13)-
Where an application for leave to appeal or leave to sue as a pauper is rejected and
the party is filing an appeal or suit with payment of court fees, the time during such
application is prosecuted in good faith shall be excluded.
3) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
(Discussed at length in the Notes at the end of this topic).
4) Exclusion of time in certain other cases (S. 15)-
S. 15, laws down following rules- viz.
(i) In computing the period of limitation where the institution of a suit (or the execution of
a decree) has been stayed by an injunction or order, the period during which injunction
or order was in force is to be excluded.
(ii) In cases where the law requires that a notice should be given or consent or sanction of
the Government or any other authority should be obtained before a suit is to be
instituted, the period of such notice or period required for obtaining such consent or
sanction shall be excluded in computing the period of limitation for filing suit.
(iii) In respect of suits on behalf of an insolvent or a company in liquidation, (a) the period
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between the date of the filing of the petition for adjudication or winding up and the
appointment of the receiver or interim receiver etc., (b) a period of three months
thereafter- shall be excluded in computing the period of limitation for suits by or on
behalf of an insolventâs estate or the company.
(iv) In computing the period of limitation for the 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
(against the purchaser by the party) has been prosecuted shall be excluded.
In other words, in a case, if a purchaser at a sale in execution of a decree has to file
a suit to recover possession of the property purchased by him, the time during which the
application to set aside the sale (filed by the party against such purchaser) was being fought
out will be excluded from the computation.
(v) In computing the period of limitation for any suit, the time during which the defendant
has been absent from India and from territories outside India under the administration
of the Central Government shall be excluded.
5) Effect of death on or before the accrual of the right to sue (S. 16)-
(i) where a person who would, if he were living, have a right to institute a suit or an
application
- dies before the right accrues, or
- were right to institute a suit or make an application accrue only on the death of the
person-
- the period of limitation shall be computed from when there is a legal representative
of the deceased capable of instituting such suit or making such application. Similarly-
(ii) where a person against whom, if he were living,-
(a) a right to institute a suit or make an application would have accrued,
(b) dies before the right accrues, or
(b) where a right to institute a suit or make an application against any person accrues
on the death of such a person-
- The limitation period shall be computed from when there is a legal representative
of the deceased against whom the plaintiff may institute such suit or make such application.
This section enacts the general principle that unless there is a complete cause of
action, the limitation cannot run and that unless there is a person who can sue and a person
who can be sued, there cannot be a complete cause of action. Thus, unless there is a person
who can sue or who can be sued, the limitation does not run.
However, the above rules do not apply to suits to enforce rights of pre-emption or
to suits for the possession of immovable property or hereditary offices.
6) Effect of fraud or mistake (S. 17)-
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(Discussed at length in the note at the end of this topic).
7) Effect of acknowledgment in writing (S. 18, 19 and 20)-
(Discussed at length in the note at the end of this topic).
8) Effect of substituting or adding a new plaintiff or defendant (S. 21)-
Where after the institution of a suit, a new plaintiff or defendant is substituted or
added, the suit shall, as regards him, be deemed to have been instituted when he was so
made a party.
Provided that where the court is satisfied that the omission to include a new plaintiff
or defendant was due to a mistake made in good faith, it may direct that the suit for regard
to such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
In other words, a suit in which a party is subsequently joined shall be deemed to be
instituted as regards him (new party) on the date of his joinder. The date is taken into
consideration for computing the period of limitation. The suit may be barred with respect
to the newly added party if he is added as a part after the limitation period is over.
9) Continuing breaches and torts (S. 22)-
(Discussed at length in the note at the end of this topic).
10) Suits for compensation for acts not actionable without special damage (S. 23)-
In the case of a suit for compensation for an act that does not give rise to a cause of
action unless some specific injury actually results there from the period of limitation shall
be computed from the time when the injury results.
Note-
1) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
Subsections (1) and (2) of S. 14 lays down that, in computing the period of limitation
for any suit or application, the time during which the plaintiff (application) has been
prosecuting with due diligence another civil proceeding, whether in a court of the first
instance or of appeal or revision against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is prosecuted in good faith in a court
which for a defect of jurisdiction or other cause of like nature, is unable to entertain it.
The court held- that the litigant is entitled as a matter of right to exclude the period spent
in infructuous proceeding provided the essential elements of S. 14 are satisfied by the
plaintiff.
Thus, the person seeking exclusion under this section must prove-
1 AIR 1978 Cal. 100.
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(a) that he had prosecuted the former proceeding in good faith and with due diligence.
(b) that the former proceeding was between the same parties;
(c) that the matter in issue was the same;
(d) that the former court was unable to entertain such suit or application for defect of
jurisdiction or other cause of a like nature.
The exception also applies to execution applications (Sub-S. 2 of S. 14).
For example, when a primary teacher is dismissed by a Government private school, an
appeal is filed in the School Tribunal (which has jurisdiction to try appeals against private
schools only). On the issue of jurisdiction, the appeal is dismissed.
The teacher filed a civil suit against the Government, but the limitation period was
three years from the order of dismissal. The suit was filed after four years and fifteen days
(one year was spent in appeal before the School Tribunal). The period spent in perusing
appeals before the School Tribunal (i.e., one year) is to be excluded.
Explanation clause (a)-
According to the explanation clause (a), in excluding time under S. 14, the day on
which the former suit or application was instituted or made and the day on which the
proceeding therein ended shall be excluded.
Explanation clause (b)-
According to this clause, a plaintiff or an applicant resisting an appeal (as the
respondent) shall be deemed to be prosecuting a proceeding.
Explanation clause (c)-
According to this clause, a misjoinder of parties or cause of action is deemed to be
a cause of like nature with a defect of jurisdiction.
In other words, when computing the period of limitation for any suit or application,
the time taken to prosecute it in a wrong court shall be enacted if it was presented in that
court in good faith.
According to S. 2 (h) of the Limitation Act, âgood faith is defined as ânothing shall
be deemed to be done in good faith which is not done without care and attentionâ. In other
words, the act is said to be done in âgood faithâ if it is done with care and attention.
***
(2) Effect of fraud or mistake (S. 17)-
Where a person having a right to institute a suit or make an application has, by
means of fraud, been kept away from the knowledge-
(i) of such right, or
(ii) of the title on which the right is founded,
-The limitation period shall be computed from the time when the fraud becomes known to
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the person defrauded.
Similarly, (i) where any document necessary to establish such right has been
fraudulently concealed from him, or (ii) where the suit or application is for the relief from
the consequence of the mistake-
- the limitation period shall be computed from the time when he first had the
means of producing the concealed document or compelling its production and
not from the date of the discovery of the document.
Thus, in order to get an exemption, the plaintiff must prove-
(a) that his cause of action has been concealed from him by fraud;
(b) that the fraud is of the defendant or of a person through whom he claims;
(c) that the plant is in the time since the discovery of the fraud.
Exception-
Proviso to S. 17 provides that ânothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any charge against or set aside
any transaction affecting, any property which-
(i) in the case of fraud, or
(ii) in the case of a mistake, or
(iii) in the case of a concealed document-
-has been purchased for (a) valuable consideration, (b) by a person who did not
know or have knowledge of the above defect.
Thus, the innocent purchaser of the property for value, without knowledge of the
defect (mentioned above), is protected.
According to sub-section 2 of S. 17, where the execution of a decree or order within the
period of limitation has been prevented by fraud or force of the judgment-debtor, the court
may, on the application of the judgment-creditor made after the expiry of the period of
limitation extend the period for the execution of the decree or order. However, such an
application must be made within one year of the discovery of fraud.
***
3) Acknowledgment-
(1) Effect of acknowledgement (S. 18)-
Where-
(i) before the expiration of the prescribed period for suit or application,
(ii) an acknowledgement is made-
(a) in writing,
(b) in respect of any property or right,
(c) signed by the party against whom such property or right is claimed (or by
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any
person through whom he derives his title or liability)
(iv) a fresh period of limitation shall be computed from the time when the
acknowledgement was so signed (S. 18).
In other words, every acknowledgement affords new proof of the existence
of the debt. According to the section, the bar of limitation does not operate in the case in
which the existence of the claim is acknowledged by persons who are under liability.
Thus, the acknowledgement should have been made before the claim became time-
barred (i.e. before the prescribed limitation period expires).
According to sub-section (2) of S. 18, if the document containing the
acknowledgement is undated, oral evidence may be admissible to prove the date of writing.
However, to prove the contents of such acknowledgement, oral evidence is not admissible
(if the document is not on record)
An application for execution of a decree or order shall not be deemed to be an
application in respect of any property or right (Explanation (c) to S. 18).
The day on which the acknowledgement is made will have to be excluded in
computing the period of limitation.
Explanation (a) to S. 18-
According to the explanation-
An acknowledgement may be sufficient-
(i) though it omits to specify the exact nature of the property or right, or
(ii) averse that the time for payment, delivery, performance or enjoyment has not yet come,
or
(iii) is accompanied by the refusal to pay, deliver, perform or permit to enjoy, or
(iv) is coupled with a claim or set-off, or
(v) is addressed to a person other than a person entitled to the property or right.
In other words, in the above circumstances, the court will presume that the debt
stands acknowledged and a fresh period begin to run from that point.
Court Held- that an acknowledgment of liability need not be expressed; it may be a
necessary implication.
Explanation (b) to S. 18-
It explains the term âsignedâ, which means âsigned either personally or by an agent
duly authorized on this behalf.
In other words, the person himself or through his agent may acknowledge.
2 AIR 1956 Pat 320.
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âComputation of period of limitationâ
Prof. .S. D. Bhosale
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Acknowledgment through the agent is also proper acknowledgment.
(2) Effect of payment on account of debt etc. (S. 19)-
S. 19 is another attribute of S. 18.
It lays down that, where-
(i) payment on account of a debt or of interest on a legacy,
(ii) is made before the expiration of the prescribed period,
(iii) by the person liable to pay the debt or legacy or by his agent duly authorized in this
behalf,
(iv) a fresh period of limitation shall be computed from the time on which the payment was
made,
Explanation (a) lays down the, where the mortgaged land is in possession of the
mortgagee, the receipt of the (i) rent or (ii) produce of such land shall be deemed to be a
payment.
Explanation (b) explains that the term âdebtâ in S. 19 does not include money
payable under a decree or order of a court.
Thus, there are two requirements of S. 19, the payment of debt or interest within the
prescribed period and, second, acknowledgement thereto.
For example, A took a loan of Rs. 10,000/- from B on 1/07/2007. He paid interest
on 01/10/2010 (i.e. after 2 years and 10 months). Here, it is to be noted that the period of
limitation to the suit to recover the amount is 3 years. B can file suit to recover the
remaining interest and principal amount within the next 3 years from 01/10/2010 (or from
the date of payment in between is made).
3) Effect of acknowledgment or payment by another person (S. 20)-
S. 20 is explanatory of the term âagent duly authorised on this behalfâ mentioned in
Ss. 18 and 19. It clears that the âagent duly authorised on this behalfâ shall-
(i) in the case of a person under disability- including his (a) lawful guardian, (b) committee
or manager or (c) an agent duly authorised by such guardian to sign, acknowledge or make
the payment.
However, one of several joint contractors, partners, exactors, or mortgagees will not
render the other joint contractors, partners, executors, or mortgagees liable under an
acknowledgement or payment (Sub- sec (2) of S. 20).
Explanation S. 20 (3) (a)-
An acknowledgement signed or a payment made, in respect of any liability by, or
by the duly authorised agent of any limited owner (widow, etc.), and governed by the Hindu
Law shall be a valid acknowledgement or payment against a reversioner.
Similarly, where the liability has been incurred by, or on behalf of a Hindu
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undivided family s such, an acknowledgement or payment made by or by the duly
authorised agent of the manager of the family, for the time being, shall be deemed to have
been made on behalf of the whole family.
***
4) Continuing breaches and torts (S. 22)-
In the case of a (i) Continuing breach of contract, or
(ii) Continuing tort,
- a fresh period of limitation begins to run at every moment of the time during
which the breach or the tort, continues.
In other words, the section deals with computing the period of limitation in cases of
continuous breach of contract or violation of right, i.e., tort.
The section's object is to prevent a multiplicity of suits and to enable one action to
be brought for all loss suffered during the whole period the breach continued.
Continuing breach of a contract-
Where the terms of a contract create rights and duties, a breach of such duty is a
wrong called a âbreach of contractâ.
For example, A breach of contract for quiet possession of any property is a
continuing breach, and a suit on such breach would not be barred so long the breach
continues. Similarly, a breach of covenant by the tenant to repair the premises of his
landlord is a continuing breach so long as the premises are not repaired.
Continuing tort-
Where the rights and duties are created otherwise than a contract, the breach of such
a duty is a wrong independent of the contract, which is called a âtortâ.
Facts- Some shops were constructed in the front portion of Bâs house, thereby obstructing
Aâs right of frontage and passage. B filed suit after approximately 20 years for the removal
of the contraction.
Held- The injury is a continuing wrong to Bâs right; hence, the suit is not barred by the
period of limitation.
*****
3 1980