Report No. 89

Chapter 15

Section 15: Exclusion of Time in Certain other Cases

15.1. Section.-Exclusion of time in certain other cases.- There are certain other cases, not covered by' the provisions so far discussed, where though the cause of action may be ripe, circumstances render the institution of legal proceedings legally impossible or difficult for a variety of reasons. Taking due note of such impossibility, the Act in section 15, makes a suitable provision for the exclusion of time in five sub-sections, each addressed to a different situation but each more or less deriving its justification from impossibility or difficulty of the nature mentioned above.

Sub-section (1) of section 15 concerns itself with the case where the institution of a suit or execution of a decree has been stayed by an injunction or order. The period during which the injunction or order continued is to be excluded in computing the period of limitation for the suit or for an application for execution of the decree in respect of which the injunction or order was issued.

In sub-section (2), we have the case where, before the institution of a suit, notice is required to be given or the previous consent or sanction of the Government or other authority is required, by law. The period of such notice (if given) or the time required for obtaining such consent or sanction is excluded in computing the period of limitation for such suit.

Under sub-section (3), where a receiver or liquidator is appointed in insolvency or liquidation proceedings, the period beginning with institution of such proceeding and ending with expiry of three months from appointment of the receiver or liquidator is excluded, in computing the period of limitation for any suit or application for execution of a decree by the receiver or liquidator.

Sub-section (4) provides that where a purchaser at an execution sale sues for possession of the property sold, the time during a proceeding to set aside the sale has been prosecuted shall be excluded in computing the period of limitation for such suit.

Final.-and this is the most important provisi.-sub-section (5) of section 15 deals with the defendant's absence from India, in the following term.-

"(5) 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."

Such points of detail as require to be considered in connection with the section are dealt with below, sub-section wise.

15.2. Section 15(.-Attachment of a decree.- Section 15(1), inter alia, grants exclusion of time when the execution of a decree has been stayed by an injunction or order, the words 'injunction' and 'order', as occurring in the section, have been interpreted differently by different courts in the context of attachment of a decree. In a Punjab case,1 an objection to the attachment of a house was preferred under section 47 of the Code of Civil Procedure, 1908.

An order was passed to the effect that the person entitled objecting was to stay in that house during her lifetime, and that the attached property could not be sold in execution, but that the decretal amount remained a charge on that property. It was held that this order did not operate to "stay" the execution proceedings during the lifetime of the objector, and in no way affected the right of the decree-holder to obtain satisfaction by attaching other property of the judgment-debtor. Consequently, section 15 was held to have no applicability to the case.

However, in Calcutta, an attachment of a decree under Order 21, rule 53 of the Code of Civil Procedure, 1908 was held to operate as a stay of the execution2, though a contrary view has been taken by the Andhra Pradesh High Court.3

1. Jaswant Rai v. Dogarmal, AIR 1968 Punj 509.

2. Kiran Shashi Debi v. Chandrika Prasad, AIR 1916 Cal 620; see cases cited in para. 15.3, infra.

3. K. Ramayyn v. K. Nagesivararao, AIR 1969 Al' 250 (256).

15.3. Conflict settled by Supreme Cou.-need for codifying the present position.- By an unreported decision of the Supreme Court,1 it is now settled that an attachment of a decree under Order 21, rule 53 of the Code of Civil Procedure, 1908, does not amount to "stay" within the meaning of section 15(1).

Having regard to the fact that the judgment of the Supreme Court referred to above2 does not appear in the series of law reports usually consulted, we consider it desirable that section 15 should contain a specific provision in this regard, so as to avoid controversy in future.

Such a clarification would be faithfull to be legal position as it was understood by the majority of the High Courts3-6 even before the Supreme Court Judgment.7

1. Shantaranjandas v. D. Misramal, 1976 Unreported Judgment SC 232.

2. Shantaranjandas v. D. Misramal, 1976 Unreported Judgment SC 232.

3. Chanbasappa v. Holibasappa, AIR 1924 Born 383 (384).

4. Saroj Ranjan v. Joy Durga, AIR 1934 Cal 140 (141).

5. Firm Deochand Panualal v. Shubhalcaran, AIR 1916 Cal 620.

6. Kiran Shashi Debi v. Chandrika Prasad, AIR 1916 Cal 620.

7. For the draft, see para. 15.19, infra, section 15, Explanation I, as proposed.

15.4. Principle accepted in 1851 case.- Under section 15(5), the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, is excluded in computing the period of limitation for any suit against such a defendant. As long back as in 1851, an action was brought in the Supreme Court of Judicature1 at Bombay for conversion of certain chests of opium.

Upon a defence being raised that the suit was barred by limitation, as having been brought beyond six years of the accrual of cause of action, the plaintiff alleged that the defendant was residing outside the jurisdiction of the Supreme Court of Judicature at Bombay and beyond the territory subject to the Government of the East India Company and, therefore, the suit was not barred. The Supreme Court upheld the plaintiff's contention on the basis of the British statutes then in force in the country2.

1. Ruckmaboyee v. Lulloobhoy Motichand, (1851-1855) 5 MIA 234 (PC).

2. Statute 21 James 1, Ch 15, and 4. Anne, Ch 16.

15.5. Hardship 'co-contractors'.- The word "defendant" in section 15(5) has given rise to certain problems, in as much as the section does not indicate in so many words as to what a plaintiff should do when he is to file a suit against several defendants some of whom are absent from India. In a suit on the original side of the Calcutta High Court1, the plaintiff sought to take advantage of this sub-section against an absent defendant after exhausting his remedy of filing a suit against his co-promisor in a promissory note executed by the absent defendant as well as others. This was turned down, but Garth, C.J. observed as follows about the inequity of the provisions:

"It is true that the rule upon which I am acting may possibly lead to some hardship in cases when one or more of several co-contractors is out of the jurisdiction, and the plaintiff, if he waits for his return, would be barred by the Statute of Limitation. But this is an injustice which the legislature, if they so pleased, could easily remedy, and which has been, in fact, remedied in England by the Statute of 19 and 20 Vict., c. 97."

His brother on the Bench Markby, J., pointed out how the rule had been modified in England:

"The rule laid down by Parke, B., in King v. Hoare, (1844) 14 LJ Est 29: 67 RR 694 (702, 703, 704)., is very likely correct in theory. It is at any rate identical, or nearly identical, with the strict rule of the ancient Roman law. But it must be borne in mind that this rule was abolished in the Roman law 1300 years ago, and has been since repudiated in America and everywhere in Europe, except in England.

Even in England, until the decision of King v. Hoare, King v. Hoare, (1844) 14 LJ Est 29: 67 RR 694 (702, 703, 704), it was very doubtful whether the rule prevailed or not in joint contract; whilst since that time one learned Judge (Sir James Knight Bruce) has spoken of the rule in strong terms of disapprobation (27 LJ Bank, 29). Lord Mansfield also expressed the opinion in Rice v. Shute that all contracts with partners were joint and several, and the rule in King v. Hoare has been since modified by Statute in England. The 19 and 20 Vict., c. 97.

Section 11 directs that the period of limitation as to joint debtors shall run notwithstanding that some are beyond seas but expressly provides that the creditor shall not be barred as against those out of the jurisdiction by judgment recovered against those who remain within it. If the rule laid down in King v. Hoare be combined with the law of limitation here, which is very strict, it is by no means clear that a creditor might not very often be left to the choice between a remedy against an insolvent debtor and having his debt barred."

15.6. Comment.- When the draft Bill of the Indian Limitation Act, 1908 was circulated for comments, the injustice arising out of such an interpretation formed the subject-matter of the comments of one Mr. M. Gupt.-

"Section 13 [present section 15(5)] of the Act might be with advantage amended so as to provide for the case where some of the defendants have been absent from British India. If on the grammatical construction of the section it is held to be applicable to a case where only some of the defendants have been absent from British India, then it has been observed that if some of the joint debtors who are within British territories are insolvent and the plaintiff waits for the return for the absent defendants, he will often find himself altogether barred by limitation"2.

1. Hemendro Coomar Mullick v. Rajendra La! Moonshee, 1878 ILR 3 Cal 353 (362).

2. M. Gupta, Barrister-at-Law, Hoshangabad, Annexure II to the letter No. 2063, dated 19th December, 1907, from the Chief Secretary to the Chief Commissioner, Central Provinces to the Secretary to the Govt. of India, Legislative Department (National Archieves file).

15.7. Comme.-Dr. Whitley Stokes.- Dr. Whitley Stokes in his Anglo-Indian Codes1 has also made similar observations.

1. Stokes Anglo-Indian Codes, (1888), Vol. 2, p. 950.

15.8. In England, section 11 of the 19 and 20 Vict., c. 97, had removed the anomaly pointed out by the Calcutta High Court. The section reads:

"11. Where such cause of action or suit with respect to which the period of limitation is fixed by the enactments aforesaid or any of them lies against two or more joint debtors, the person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas, at the time such cause of action or suit accrued,
by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or persons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond seas at the time the cause of action or suit accrued after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid."

15.9. Law Commission Report on Contract Act..- The difficulties raised by the Calcutta judgment, as well as by cases of other High Courts, were considered by the Law Commission in its Report on the Contract Act, 18721 and we reproduce below their observations from that Repor.-

"70. The Contract Act treats all contracts as joint and several. The necessary consequence is that it is not open to one promisor who is sued to compel the promisee to sue others. There has, however, been considerable divergence of opinion on the effect of a judgment obtained by the promisee against one out of a number of promisors. In the words of the Federal Court2, unlike English Law, the Indian Law makes a general liability joint and several, in the absence of an agreement to the contrary.

It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors should have been made parties. We think that Strachey, CJ., correctly stated the law in Muhammad Askari v. Radhe Ram, 22 All 307 when he said:

The doctrine now rests not so much on King v. Hoare, (1844) 153 ER 206: 67 RR 694, as on the judgment of the Law Lords in Kendall v. Hamilton, (1879) 4 AC 504. As explained in these judgments, the doctrine that there is in the case of a joint contract a single cause of action which can only be once sued on, is essentially based on the right of joint debtors in England to have all their contractors joined as defendants in any suit to enforce the joint obligation.

The right was in England enforceable before the Judicature Act by means of a plea in abatement, and since the judicature Acts by an application for joinder which is determined on the same principles as those on which the plea in abatement would formerly have been dealt with. In India that right of joint debtors has been expressly excluded by section 43 of the Contract Act, and, therefore, the basis of the doctrine being absent, the doctrine itself is inapplicable.

Cessante ratione legis, cessat ipsa lex.3 The result is that a decree obtained against some of several joint promisors remaining unsatisfied ought not to be held as a bar to a subsequent action against the other promisors. We recommend that this result may be incorporated in the Act by inserting a new section4."

After making these observations, the Law Commission recommended5 the insertion of a new section 44A as follows in the Contract Ac.-

"44A. Effect of decree obtained against one promisor.- A decree against any one or more of a number of joint promisors does not, if it has remained unsatisfied, and in the absence of express agreement to the contrary, bar a subsequent suit against any one or more of the other promisors."

We reiterate the recommendation for amending the Contract Act, quoted above. Such an amendment would resolve the difficulty that at present arises in the law of limitation, when only some of the defendants (joint promisors) have been absent from India.

1. Law Commission of India, 13th Report (Contract Act, 1872).

2. Jainarain v. Surajmull, (1949) 12 Fed Lir 216 (225).

3. 22 All 307 (311, 312).

4. Vide section 44A, kppendix I (of the 13th Report).

5. Law Commission of India, 13th Report (Contract Act, 1872), Appendix 1, section 44A.

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