UNIT 5

Synopsis
1. Bar of limitation.
2. Expiry of prescribed period when court is closed.
3. Extension of prescribed period in certain cases.
4. Legal disability.
5. Disability of one of several persons.
6. Special exceptions.
7. Continuous running of time.
8. Suits against trustees and their representatives.
9. Suits on contracts entered into outside the territories to which the Act extends
10. Exclusion of time in legal proceedings.
11. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.
12. Exclusion of time of proceeding bona fide in court without jurisdiction.
13. Exclusion of time in certain other cases.
14. Effect of death on or before the accrual of the right to sue.
15. Effect of fraud or mistake.
16. Effect of acknowledgment in writing.
17. Effect of payment on account of debt or of interest on legacy.
18. Effect of acknowledgment or payment by another person.
19. Effect of substituting or adding new plaintiff or defendant.
20. Continuing breaches and torts.
21. Suits for compensation for acts not actionable without special damage.
22. Computation of time mentioned in instruments.
23. Acquisition of easements by prescription.
Limitation of Suits, Appeals and Applications
Sec.3 - Bar of limitation
(1) 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.
(2) For the purposes of this Act,
(a) a suit is instituted,—
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made;
and
(iii) in the case of a claim against a company which is being wound up by the court, when
the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall
be deemed to have been instituted:
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

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 (ii) in the case of a counter claim, on the date on which the counter claim is made in
court;
(c) an application by notice of motion in a High Court is made when the application is presented
to the proper officer of that court.
Comments:
In Noharlal Verma v. District Cooperative Central Bank Ltd., AIR 2009 SC 664, the Supreme
Court observed that if a suit, appeal or application is barred by limitation, a Court or an
adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal, or
application and decide it on merits. Even in the absence of such plea by the Defendant,
Respondent or opponent, the Court or authority must dismiss such suit appeal or application, if it
is satisfied that the same is barred by limitation.
The provision u/Sec. 3 of the Limitation Act, 1963 interdicts the Courts from entertaining any
application or suit which is barred by limitation – Salu Varghese v. P.P. Prabhakaran, AIR
2010 (NOC) 588.
In Gannamani Anasuya v. Parvathi Amarendra Chaudhary, 2007 (6) SCJ 414, the Supreme
Court held that whether a plea that the suit is barred by limitation or not has been raised by the
parties, the Court will determine this question, as far as Sec.3 of the Limitation Act is concerned.
This kind of jurisdictional fact need not be pleaded.
In V.M. Salgaocar & Bros. v. Board of Trustees of Port of Mormugao, AIR 2005 SC 4138, the
Supreme Court held that irrespective of the fact that limitation has not been set up as a defence, it
is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation. If
the suit, on the face of it, is barred by the law of limitation, a Court has no option but to dismiss
the suit even if the Defendant intentionally has not raised the plea of limitation.
In Manindra Land and Building Corporation Ltd. v. Bhutnath Bannerjee, AIR 1964 SC 1336,
the Supreme Court held that Sec.3 of the Limitation Act directs or imposes authority on the
Court to dismiss any suit instituted, appeal preferred and application made, after the period of
limitation prescribed therefor by Schedule I, without regard to the fact that whether the opposite
party had set up the plea of limitation. The Court cannot proceed, since there is duty, to dismiss
the application if it is made beyond the period of limitation prescribed. If in interpreting the
necessary provision of the limitation act or in determining which provision of the limitation act
applies, the subordinate Court comes to a wrong decision, it is open to the Court to interfere with
that confusion in revision for the reason that conclusion led the Court to assume or not to assume
the jurisdiction to proceed with the determination of that matter.
Sec.3 only bars the remedy, but does not destroy the right
Sec.3 of the Limitation Act only bars the remedy, but does not destroy the right to which the
remedy relates to. The right to debt continues to exist notwithstanding that the remedy is barred
by limitation. That right can be exercised in any other manner than by means of a suit. The debt
is not extinguished, but the remedy to enforce the liability is destroyed. What Sec.3 refers to is
only to the remedy but not to the right of the creditors. Such debt continues to subsist so long it is
not paid. It is a settled law that the creditor would be entitled to adjust from the payment of a
sum by a debtor towards the time-barred debt. It is also equally settled law that the creditor when
he is in possession of an adequate security, the debt could be adjusted from the security in his

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possession and custody. Therefore, where a debt is barred by limitation, adjustment of securities
deposited by guarantor towards debt thereafter is permissible – Punjab National Bank v.
Surendra Prasad Sinha, AIR 1992 SC 1815.
This Section is mandatory in its terms and as observed by the Privy Council in General Accident
Fire and Life Assurance Corporation v. Janmahomed, (1941) 43 Bom LR 346, quoted in
S.Richard Jaison v. Padmanabhar Nadar Paramu Nadar, AIR 1957 TC 171, that a Judge
cannot on equitable grounds, enlarge the time allowed by law, postpone its operation, or
introduce exceptions not recognized by it. Similar observations have been made by the Supreme
Court in Boota Mal v. Union of India, AIR 1962 SC 1716, and Rajinder Singh v. Santa Singh,
AIR 1973 SC 2537, where the Supreme Court refused to apply an alien doctrine of lis pendens
against the express provisions of the Limitation Act, 1963.
The policy that underlines the bar of limitation can be gathered from R.B. Policies at Lloyd’s v.
Butler, (1949) 2 All ER 226, and the Halsbury’s Laws of England:
1. It is based on the maxim “interest republicae ut sit finis litium” which means that interest
of State requires that a period be put to litigation.
2. Long dormant claims have more cruelty than justice to them.
3. The Defendant might have lost the evidence to disprove a stale claim.
4. Persons with good causes of action should pursue them with reasonable diligence – Law
does not help those who sleep over their rights – Vigilantibus non dormentibus jura
subvenient
5. Finally that it is a statute of quiet and repose of community and that it is necessary that
titles to property and matters of right in general should not be in a state of constant
uncertainty, doubt and suspense.
It must finally be noted that Sec.3 of the act bars only the remedy and the right continues to
subsist. The only exceptions to this are Secs.25 and 27 of the Act where even the title to property
gets distinguished.
In the State of Punjab v. Surjit Kaur, AIR 2002 P&H 68, it was held that a welfare State should
not indulge in frivolous litigation and in particularly defending a rightful claim on technicalities
particularly when even on such technicality it has no case at all.
In Antonysami v. Arulanandam Pillai, AIR 2001 SC 2967, it was held that the fixation of
periods of limitation is bound to be to some extent arbitrary and many a times result in hardships.
But in construing such provisions equitable considerations are out of place and the strict
grammatical meaning of the words is the only safe guide.
The Supreme Court in L.J. Leach & Co. Ltd. v. Jairdine Skinner & Co., AIR 1957 SC 357, held
that the Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended
claim would be barred by limitation on the date of the application. But that is a factor to be taken
into account in exercise of the discretion as to whether amendment should be ordered, and does
not affect the power of the Court to order it, if that is required in the interest of justice and equity.
Sec.4. Expiry of prescribed period when court is closed
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.

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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.
Comments:
This Section enables a party to legal proceeding to initiate the same on the next day if the
previous day happened to be the last day and on that day the Court remained closed for any part
of the day. The section does not extend the period prescribed for the presentation of any suit or
appeal or application but it only provides that where the period prescribed expires on a particular
day when the Court is closed, notwithstanding that fact that application may be made on the day
of limitation. It provides for the contingency when the prescribed period expires on a holiday and
the only contingency contemplated is ‘when the Court is closed’.
Where the limitation expires on Sunday or any other holiday, the suit can be filed on the next
day. The party cannot insist that the suit ought to have been filed on Saturday – Oriental
Insurance Co. Ltd. V. Karur Vysya Bank Ltd., AIR 2001 Mad 489.
The underlying principles of Sec.4 are:
1) Lex Non Cogit Ad Impossibilia – The law does not compel a man to do something what
he cannot possibly perform.
2) Actus Curiae Neminem Gravabit – An act of the Court shall not prejudice anyone.
Sec.5 - Extension of prescribed period in certain cases
Any appeal or any application, other than an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908 (5 of 1908), 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.
Comments:
The procedural laws are devised for advancing the cause of justice and not for imposing
penalties. The provisions of Sec. 5 of the limitation Act have to be liberally construed so as to
give opportunity to the parties to have a decision on contest rather than denying them on mere
technicalities.
The Collector is not a Civil Court. So the provisions of Sec.5 will not be applicable in filing
revision before the Collector – Akula Veeraiah v. Commissioner of Civil Supplies, AIR 2011
AP 87.
The provisions of Sec.5 are also not applicable to Order 21 of the Code of Civil Procedure, 1908
– Rajmuni Devi v. Ram Naresh Singh, AIR 2011 Pat 30.
The provision under Sec.5 of the Act cannot be invoked for extension of period of limitation for
filing application for reference, prescribed u/Sec.18(2) of the Land Acquisition Act, 1894 –
Nayantara Gupta v. State of Uttar Pradesh, AIR 2010 SC 1532.
In Pushpaben Balwantrai v. Nand Kumar Ramanlal, AIR 2004 (NOC) 382 Guj, theGujarat
High Court has held that while deciding the application for condonation of delay, the Court is

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required to take into consideration whether there is any sufficient ground for condoning the
delay.
The Court is not required to take into consideration the merits of the case. Merits of the case
cannot be decided unless the delay is condoned and matter is taken up for hearing after
condonation of delay. Thus, the main issues cannot be decided unless delay is condoned by the
Court and matter is taken UP for hearing on its own merits.
A justice oriented approach has to be espoused by the Courts and the utmost consideration has to
be that ordinarily a litigant ought not to be denied an opportunity of having a dispute determined
on merits unless he has, by gross negligence, deliberation inaction or something akin to
misconduct, disentitled himself from seeking the indulgence of the Court – Ramdas Shivram
Sattur v. Rameshchandra Popatlal Shah, 2007 (6) SCJ 737.
In Love Kumar Sethi v. Deluxe Stores, 2007 (145) DLT 275, it was held that each day of the
delay need not be explained. It should be explained by different species, reasons and causes
which do arouse a feeling of confidence.
However, in one of the cases it was held that in order to avail himself of the Section the party in
default must satisfy the Court that he had sufficient cause for not making the requisite
application right up to the date on which the requisite application was presented. In other words
he must satisfactorily account for each day’s delay. Unless it is accounted for the Court has not
authority in law to condone the delay - 1973 Cri.L.J. 131.
Sufficient Cause
Sec.5 of the Limitation Act, 1963 enables the Court to condone delay in filing appeal or
application, if the appellant or applicant satisfies the Court that he had ‘sufficient cause’ for not
preferring an appeal or making an application within such period.
However, the expression ‘sufficient cause’ has not been defined in the Act. It is however, very
wide, comprehensive and elastic in nature. It is also construed liberally by Courts so as to
advance the cause of justice – State of W.B. v. Howrah Municipality, (1972) I SCC 366.
Such discretion, however, should be exercised judiciously. Sufficient cause cannot be liberally
interpreted if negligence, inaction or want of bona fides is attributable to the party in delay. Even
though limitation harshly affects rights of a party, but it has to be applied with all its rigour when
prescribed by the statute – Basavaraj v. Land Acquisition Office, (2013) 14 SCC 81.
Normally, a party who approaches a Court of law with a grievance should not be deprived of
hearing on merits, unless there is something to show that there was total inaction, gross
negligence or want of bona fides on his part. Interpreting the words ‘sufficient cause’ in
pragmatic manner and by adopting common sense approach, the Court should try to do
substantial justice between the parties - Basavaraj v. Land Acquisition Office, (2013) 14 SCC
81
The question whether there was ‘sufficient cause’ in not preferring an appeal or application
depends upon the facts and circumstances of each cause, and no rule of universal application can
be laid down – Ibid.
In Collector (L.A.) v. Katiji, AIR 1987 SC 1353, the Supreme Court laid down the following
principles, while dealing with an appeal or application not preferred within the period of
limitation:
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 1. Ordinarily, a litigant doesn’t not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As against this, when delay is condoned,
the highest that can happen is that a cause would be decided on merits after hearing the
parties.
3. “Every day’s delay must be explained” doesn’t mean that a pendantic approach should be
made. Why not every hour’s delay, every second’s delay? The doctrine must be applied
in a rational, common-sense, pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause
of substantial justice deserves to be preferred, for the other side cannot claim to have
vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant doesn’t not stand to benefit by
resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalise
injustice on technical grounds, but because it is capable of removing injustice and is
expected to do so.
Sec.6 - Legal disability
(1) 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.
(2) Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the application within the same period after
both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) 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.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the
person whom he represents, affected by any such disability, the rules contained in sub-sections
(1) and (2) shall apply.
(5) 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.
Explanation - For the purposes of this section, ‘minor’ includes a child in the womb.
Sec.7 - Disability of one of several persons
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; but, where no such discharge can be

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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.
Explanation – I - This section applies to a discharge from every kind of liability, including a
liability in respect of any immovable property.
Explanation – II - For the purposes of this section, the Manager of a Hindu undivided family
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.
Sec.8 Special exceptions
Nothing in section 6 or in section 7 applies to suits to enforce rights of preemption, or shall be
deemed to extend, for more than three years from the cessation of the disability or the death of
the person affected thereby, the period of limitation for any suit or application.
Comments:
Sec.6 and 7 provide that where a person or one of several persons is under a legal disability
(minor, insane or idiot), he may file a suit or an application within the same period after the
disability (minority, insanity or idiocy) has ceased.
Such disability must exist at the time from which the period of limitation is to be reckoned. But
once the time has begun to run, subsequent disability will not stop it (Sec.9).
This section is one of the provisions which extends the period of limitation laid down by the
schedule. The Section doesn’t give a fresh starting point of limitation. It does not prevent the
running of time as against a person under disability – AIR 1969 Ker 163. This section doesn’t in
terms extend the period of limitation prescribed for any legal action but merely enables a person
under disability at his choice to have limitation reckoned against him either from the date of
accrual of the cause of action or from the date of cessation of the disability. In case the person
under disability chooses the prescribed period of limitation to be reckoned from the date of the
accrual of the cause of action, the whole period prescribed begins to run from the date of cause
of action – (1984) 57 Cut LT 262 (269).
The ground on which the extension is given is the disability of the person entitled to sue or
apply. But the Section does not contain the entire law on the subject. It enumerates the kinds of
disabilities on account of which limitation will be extended, but the circumstances under which
and the extent to which, limitation will be extended on such ground are dealt with not only in this
Section but also in Secs.7 and 9. Thus the three Sections together constitute one unit and are
supplementary to each other and not mutually exclusive – AIR 1965 Mad 541.
Section 6 allows the minor to extend the limitation to some more time and entitles the minor,
insane or idiot to institute the suit or make the application within the same period prescribed in
the third column of the Schedule to the Act after the said legal disability has come to an end.
Special limitation explained in Section 8 of the act has explained that extended period after
cessation of the disability will not cover beyond three years of the death of such legally disabled
person or cessation of his said legal disability - Darshan Singh V Gurdev Singh, 1995 AIR 75,
1994 SCC (6) 585
Section 6 does not cover in any way any “intervening” kind of legal disability. When a legal
disability is in existence, only then can section 6 be successfully applied. But if a person cannot
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be termed to be suffering from any kind of legal disability when such a limitation time-line
begins, he cannot in any way avail the relaxation of standards offered by section-6. While
reading Section 3, the period of limitation for suits has to be considered by reading Schedule 1
with Sections 4 to 25of the Limitation Act; and, therefore prescribed for a suit by a minor cannot
be the period mentioned in Schedule 1, but a special period that is described in Section 6 of the
Act. Therefore, in the case of a minor it cannot be said that the period for filing suits under
section 6 has expired without taking into account the provisos involved. This ensures that the
right of minors to contest suits is not taken away, without offering them any reasonable time
period to do so accordingly - Udhavji Anandji Ladha and Ors. Vs Bapudas Ramdas Darbar,
AIR 1950 Bom 94
This case stated that cause of action or grievance must take place when the plaintiff (in this
particular case the administratrix) dies and the period of limitation is thus initiated with no
subsequent disability leading to reset of that clock as per section 9 of the Limitation Act. A
plaintiff can only rightfully claim benefit only if such a right existed due to a legal disability as
and when the period of limitation began. Any subsequent disability on his part will not stop the
running of limitation. Consequently, he will be governed by the same period of limitation as the
earlier limited owner, but such a disability can come into his defence if his claims are
independent of the earlier claimant’s plea - Lalchand Dhanalal vs Dharamchand and Ors. ,
AIR 1965 MP 102.
This case stated the purpose of section 7 of the Limitation act is to regulate the supposed
indulgence that is available to minors to ensure that the benefit of section 6 of the Limitation act
does not extend to a correspondingly long period of time but only till the eldest of the lot does
not end up as a major - Bapu Tatya Desai vs Bala Raojee Desai, (1920) 22 BOMLR 1383
Section 7 had to be taken as an exception to the general principle enunciated by Section 6 and
held that if there are multiple individuals that were jointly entitled to institute a suit and if one of
them was disabled, time would not run against any of them until the disability ceased to exist.
But if one of the persons entitled to institute the suit was competent to give discharge without the
concurrence of the other, then time would begin to run against both of them - Smt. Usha Rani
Banerjee & Ors. Vs. Premier Insurance Company Ltd, Madras & Ors. AIR 1983 Allahabad 27
If under some substantive law, a particular law entitles that a legally able person can represent an
entire group, he/she can be termed to be powerful enough to discharge that right without any
consultation with the other members of that group. Section 7 would not operate in the case of all
the joint creditors under disability were well covered by Section 6 of the Act. It is not considered
important whether a valid discharge is given by the person competent to give the same. The only
question is whether he could give it under the ambit of section 7 of the Limitation Act. A valid
discharge of the suit under section 7 can take place by a major with/without the concurrence of
the minors - T. Kunhammad and Ors. Vs M. Narayanan Nambudiri's Son, AIR 1964 Ker 8.
Applicability to Child in Womb
A child in the womb can take advantage of the provisions of Section 6 and 8. Section 6 of the
Limitation Act would apply to the case of a child in the womb. A child in the mother’s womb is
deemed to be in existence, at least for purpose of inheritance and thus has a right to challenge
any transaction which affects its interest at the time. If so, it has a right of action or cause of
action in respect of the said transaction and is entitled to institute a suit upon the same and, as

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such a child, as aforesaid cannot, under the Indian Majority Act be held to be a minor that is, a
person suffering from disability, as contemplated in the section.
Sec.9 - Continuous running of time
Where once time has begun to run, no subsequent disability or inability to institute a suit or
make an application stops it:
Provided that, 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.
Comments:
According to Section 9 of the Act where once time has begun to run, no subsequent disability or
inability to institute a suit or make an application can stop it provided that 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 debt shall be suspended while the administration
continues.
The rule of this Section is based on the English dictum. “Time when once it has commenced to
run in any case will not cease to be so by reason of any subsequent event”. Thus, when any of the
statutes of limitation is begun to run, no subsequent disability or inability will stop this running.
The applicability of this Section is limited to suits and applications only and does not apply to
appeals unless the case fell within any of the exceptions provided in the Act itself.
For the applicability of Section 9 it is essential that the cause of action or the right to move the
application must continue to exist and subsisting on the date on which a particular application is
made. If a right itself had been taken away by some subsequent event, no question of bar of
limitation will arise as the starting point of limitation for that particular application will be
deemed not to have been commenced.
Thus, time runs when the cause of action accrues. True test to determine when a cause of action
has accrued is to ascertain the time, when plaintiff could have maintained his action to a
successful result first if there is an infringement of a right at a particular time, the whole cause of
action will be said to have arisen then and there.
Section 9 contemplates only cases where the cause of action continues to exist.
Sec.9 applies only where the circumstances arising subsequent to the commencement of
limitation amount to ‘disability or inability to institute a suit or make an application’. ‘Disability’
has been defined as the want of legal qualification to act and ‘inability’, as the physical power to
act – (1898) 25 Cal 496. Thus the two expressions are distinct from each other – (1905) 29 Bom
68 (DB). But both of them clearly refer to something which pertains to the Plaintiff – (1884) 8
Bom 561. It is something personal to the Plaintiff or the applicant – 1970 Lab IC 701.The
Defendants absence from India is not a disability or inability to institute a suit within the
meaning of this Section – (1898) 25 Cal 496 (FB). So also the lack or absence of the cause of
action is not a disability or inability. This Section as well as the principle of continuous running
of time contemplates cases where the cause of action continues to exist. They cannot apply to
cases where the cause of action is cancelled by subsequent events wiping out the time which has
run and the starting of fresh period of limitation on the revival of the cause of action from the
date of revival - 1970 Lab IC 701. It was held in AIR 1919 Cal 706,that the fact that a Plaintiff,
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an alien, was prevented from suing on account of the outbreak of war between his mother-
country and Great Britain would amount to either a disability or inability within the meaning of
this Section.
Sec.10 - Suits against trustees and their representatives
Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a
person in whom property has become vested in trust for any specific purpose, or against his
legal representatives or assigns (not being assigns for valuable consideration), for the purpose
of following in his or their hands such property, or the proceeds thereof, or for an account of
such property or proceeds, 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.
Comments:
Sec.10 is applicable only against a person in whom property has become vested in trust for any
specific purpose. It is an essential condition of trust that property must vest in the trustee. Unless
therefore the trustee is constituted as the owner of the property entrusted to him, a trust cannot be
said to have been constituted. Unlike English law, the Indian law doesn’t recognise a difference
between legal and equitable estates. Where, therefore, the property is vested in the trustee, the
owner must be the trustee. A mere manager or agent holding property on behalf of another
cannot be considered to be a trustee. Similarly, the mere fact that a person is holding the property
on behalf of another, will not constitute him a trustee, unless the ownership of the property is
also vested in him. Sec.10 applies in the case of a suit only against a person to whom the
property is vested in trust for any specific purpose. The implied trusts or obligations in the nature
of trusts like that of a partnership firm are not within the scope of this.
In the case of T.Kaliamurthy v. Five Gori Thaikal Wakf, AIR 2009 SC 840, it was observed by
the Supreme Court that provision of Sec.10 of the Limitation Act would not apply to waqf’s suit
for recovery of possession of suit property against person who claimed to have purchased such
properties.
Sec.10 includes cases of resulting trusts which resulted not upon or from the failure of the
declared trust or trusts but because of the complete execution to the same without exhausting the
trust property the declared trust or trusts being such as could not by themselves, under any
conceivable circumstances, have exhausted the whole of the trust property. Where a position that
a residue would remain is apparent from the trust instrument itself and is certain from the very
beginning. When in such a case the trust property becomes vested in the trustee under or in
pursuance of the declared trust, it becomes so vested not only for the purpose of the said trust but
also for the purposes of the undeclared or resulting trust which arises in the wake of its fulfilment
or complete execution. This resulting trust follows, as it were, the declared trust for the purpose
of effectuating the testator’s intention and does not in any way affect or tend to affect or
supersede or nullify the same.
Justice Krishnamurth held in Swapna v. Thankavelu, (1990) 2 Ker LT 604, following the
decisions reported in Partibha Rani v. Surajkumar, AIR 1985 SC 628, and Maniyamma v.
Abdul Rasaak, (1989) 1 Ker LT 636 that the husband is in the position of a trustee so far as the

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ornaments and utensils entrusted to him by the wife are concerned and under Sec.10 of the
limitation act, there shall not be any limitation for such a suit by the wife against husband.
The words “in trust for a specific purpose” are, as observed by Garth, C.J. in Greender Chunder
Ghose v. A.B. Macintosh, 1878 4 Cal LR 193 intended to apply to trusts created for some
defined or particular purposes or objects as distinguished from trusts of a general nature such as
the law impresses upon executors and others who hold recognised ‘fiduciary positions’.
Computation of Period of Limitation (Sections 12 to 24)
The Limitation Act, 1963 prescribes periods of limitation for suits, appeals or applications. The
rules as to computation of period of limitation (Sections 12 to 24) not intended to apply only to
periods of limitation prescribed by the Schedule but apply also to periods of limitation provided
for by other enactments.
Section 12 of the Limitation Act is first of the sections providing for exclusion of time in
computing the period of limitation. The Section 12 of the Act excludes from reckoning the day
from which the period is to be reckoned and time requisite for obtaining copies of documents
referred to in sub-sections (2) to (4). The true effect of Section 12 is that the periods referred to
in the various sub-sections have to be added to the period of limitation.
There need not be any prayer or application by a party for the time to be excluded under Section
12 of the Limitation Act. This Section 12 confers a substantive right upon a party and it is the
duty of the Court to exclude the time when the case comes under the purview of any of the sub-
sections of Section 12.
Sec.12 - Exclusion of time in legal proceedings
(1) 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.
(2) 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.
(3) 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 the judgment shall also be excluded.
(4) 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.
Comments:
According to sub-section (1) of Section 12 of the Limitation Act, the first day i.e. the day from
which a period of limitation is to be computed, must be excluded. And the last day i.e. the day on
which the suit is instituted must be included in the calculation. This rule is applicable whenever
time has to be computed from a day specified whenever such time is fixed performance of

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contract or is prescribed by law for the doing of an act or for the institution of the proceedings in
a Court of Law.
In Webb v. Fairmaner, (1838) 3 M&W 473, when goods were sold on 5th October to be paid for
in two months from the date of sale it was held that in computing the period of two months 5th
day of October shall be excluded and action for price of goods cannot be started until and after
expiration of 5th December. Baron Parke, in delivering the judgment in the case, relied on the
observations of Sir W. Grant M.R. in Lester v. Garland, (1808) 15 Ves 248, to the following
effect:
“Upon the technical reasoning, I rather think, it would be more easy to maintain, that the
day of an act done, or an event happening, ought in all cases to be excluded than that it should in
all cases be included. Our law rejects fractions of a day more generally than the civil law does.
The effect is to render the day a sort of indivisible point; so that any act done in the compass of it
is no more referable to any one than to any other portion of it; but the act and the day are co-
extensive; and therefore, the act cannot properly be said to be passed until the day is passed.”
The learned Baron also observed as follows:
“so also, in Pellew v. Inhabitant of Wonsford, AIR 1927 Lah 200, the time was held to
be exclusive; and a very reasonable Rule was laid down by Lord Tenterden, which is a very good
test to apply, viz., by reducing the time to one day, in which case the party would clearly be
entitled to the whole of the next day after the injury was done, otherwise he might have no time
at All in which to give notice.”
As to the computation of time generally in matters dealt with in the Acts of the legislature, Sec.9
of the General Clauses Act, 1897, adopts the above-mentioned general Rule as follows:
“In any Central Act or Regulation made after the commencement of this Act, it shall be
sufficient, for the purpose of excluding the first in a series of days or any other period of time, to
use the word, ‘from’ and, for the purpose of including the last in a series of days or any other
period of time, to use the word ‘to’.
In Krishna Bilas v. Sonadhan, AIR 1961 Tripura 16, it is held that in a suit of recovery of
possession under Section 9 of the Specific Relief Act, the day of dispossession is to be excluded.
In Sita Ram v. State, AIR 1961 All. 151, it has been held that for an offence under Section 106
of the Factories Act the date on which the offence came to the notice of the Inspector is to be
excluded. In Ram Nandan v. Ramadhar, AIR 1966 Pt. 297 (FB), it has been held that in
computing the limitation for filing appeal against the Panchayat election, the date of declaration
of the result of the election is to be excluded.
In R. Hamira v. Bani Mani, (1976) 17 Guj. L.R. 729, it is held that the day on which the
judgment is pronounced should be excluded in computing the period of limitation for an appeal.
The limitation for filing an appeal commences from the date of the judgment and not from the
date of decree is signed.
In State of Bihar v. Rameshwar Prasad, AIR 1994 SC 501, the Supreme Court has held that in
the matter of setting aside the award the date on which the filing of the award was made known
to the advocate of the applicant has to be excluded under Section 12(1) of the Limitation Act.
In Saketh India Ltd. v. India Securities Lt., AIR 1999 SC 1090, the notice of returning of the
cheque as unpaid was served on the drawer on 29th September, 1995. The period of 15 days for
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making payment by the drawer under the proviso (c) to Section 138 of the Negotiable
Instruments Act is expired on 14th October, 1995. Therefore, the cause of action to file a
complaint under Section 138 of the Negotiable Instruments Act arose on 15th October, 1995. In
computing the one month limitation period under Section 142(b) for filing a complaint against
the drawer the date of 15th October, 1995 is to be excluded. The Court has held that the
complaint filed on 15th November, 1995 is within time as it has been filed on the 30th day
excluding 15th October, 1995. This rule has been consistently followed and has been adopted in
General Clauses Act and in the Limitation Act.
Sub-section (2) of Section 12 of the Limitation Act applies to appeals, an application for leave to
appeal, an application for the review of judgment and also to an application or a petition for
revision. Section 12(2) is not of general application but only applies to specific categories
mentioned therein.
In India House v. Kishan N. Lalwani, AIR 2003 SC 2084, the Supreme Court has held that no
application seeking benefit of Section 12(2) is required and Court is bound by statute to extend
the benefit where applicable and no formal application is required to be made. It was held
observed as follows:
“The period of limitation statutorily prescribed has to be strictly adhered to and cannot be
relaxed or departed from, for equitable considerations. At the same time full effect should also be
given to those provisions which permit extension or relaxation in computing period of limitation,
such as those contained in Sec.12. the underlying purposes of these provisions is to enable a
litigant seeking enforcement of his right to any remedy to do so effectively and harsh
prescription or time bar not unduly interfering with the exercise of statutory rights and remedies.
That is why Sec.12 has always been liberally interpreted”
In Commissioner of Sales Tax v. Madanlal, AIR 1977 SC 523, it has been held that it would be
impermissible to read in Section 12(2) a proviso that the time for obtaining the copy shall be
excluded only if such copy has to be filed along with the memorandum of appeal or application
for leave to appeal or for revision or for review of judgment.
In Punni v. State, AIR 1971 All. 387, it has been held, following the decision of the Supreme
Court in S.A. Gaffore v. Ayesha Begum, 1970 UJ (SC) 784, that exclusion of time is allowed
even when copy is not required to be filed along with the memorandum.
In Krishnji v. N.R. Malti, AIR 1972 Mys. 274, it is held that when the appeal against the date of
signing the decree has to be excluded.
In Jagiri v. Doulat, AIR 1928 Lah. 755, it has been held that an appellant is entitled to deduct
the time spent in obtaining a copy of the first judgment of the trial Court as well as of the
judgment passed on review.
In Udayan Chinubhai v. R.C. Bali, AIR 1977 SC 2319, it has been held by the Supreme Court
that under Section 12(2) of the Limitation Act read with the Explanation, the appellant is not
entitled to exclude the time that had elapsed from the date of the judgment till signing of the
decree prior to his application for a copy thereof in computing the period of limitation prescribed
for filing the appeal.
In India Home v. Kishan N. Lalwani, AIR 2003 SC 2084, the Supreme Court has modified
earlier stand and has overruled all the contrary decisions of different High Courts and has held

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that Section 12(2) of the Limitation Act says that it is time requisite for obtaining the copy being
excluded from computing the period of limitation or the time requisite for obtaining the copy
being added to the prescribed period of limitation and treating the result of addition as the period
prescribed and that in adopting methodology it does not make any difference whether the
application for certified copy was made within prescribed period of limitation or beyond it. The
Supreme Court upheld the decision of the Madras High Court which has held that though the
application for certified copy of judgment and decree was made after the prescribed period of
limitation the period was liable to be excluded in all cases and not depending on whether there is
sufficient cause or not.
In State of U.P. v. Maharaja Narain, AIR 1968 SC 960, it has been held that the expression
“time requisite” in sub-section (2) of Section 12 cannot be understood as the time absolutely
necessary for obtaining the copy of the order and that what is deductible under sub-section (2) of
Section 12 is not the minimum time within which a copy of the order appealed against could
have been obtained. The section does not permit the exclusion of the period required for
obtaining a certified copy of the decree for the purpose of exclusion.
The question whether the appeal preferred was in time or not should be considered on the basis
of information available from the copy of the judgment and decree filed along with the
Memorandum of Appeal and not from the other copies which the party might have got and used
for other purposes with which the Court has nothing to do.
The time spent in obtaining a copy of the judgment also will be excluded under sub-section (3)
of Section 12, because it is generally necessary that the judgment on which the decree of the
High Court is based should be obtained in order that the parties may ascertain what its terms are,
and further filed with the application for leave to appeal.
In computing the period of limitation for an application for leave to appeal the time requisite for
obtaining a copy of the judgment complained of must be excluded - Baldeo Pershad v. Dwarika,
AIR 1957 All. 334. In applying for leave to appeal to the Supreme Court the applicant was not
entitled to get any time spent in obtaining a copy of the judgment deducted in computing the
period of limitation - Deep Chand v. Bhago, AIR 1965 Punj. 115.
In Biswapati v. Kenington Store, AIR 1972 Cal. 172, it has been held that Section 12(3) of the
Limitation Act does not apply to an application for execution of a decree. The period of
limitation for an execution application therefore runs under Article 136 (old 182) from the date
of the judgment and not from the date on which the decree is signed.
According to sub-section (4) of Section 12 of the Limitation Act, the period for obtaining copy
of the award to be excluded in computing the period of limitation for an application to set aside
an award.
An appeal for execution does not fall in any of the categories of legal proceedings mentioned in
Section 12 of the Limitation Act. It, therefore, follows that this section is not applicable to an
application for execution.
In Shahjahan Begum v. Zahirul Hasan, AIR 1972 All. 511, the Allahabad High Court has held
that the Explanation in Section 12 implies that the time requisite for obtaining copy is the time
taken by the Court in preparing the decree or order before the application for copy is made as
also the time taken in preparing the copy after the application therefore has been made.

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In Udayam Chinubhai v. R.C. Bali, AIR 1977 SC 2319, the Supreme Court has held that under
Section 12(2) read with the Explanation a person cannot get exclusion of the period that elapsed
between the pronouncement of the judgment and the signing of the decree if he made the
application for copy only the preparation of the decree. The Supreme Court has pointed out that
the time requisite for obtaining a copy under Section 12(2) must be that time which is required
for getting a copy of the decree.
In State of Assam v. Govinda Chandra Patel, AIR 1991 Gau. 104, the Guwahati High Court has
held that in view of Section 12(2) read with the Explanation, the appellant is not entitled to
exclude the time that had elapsed from the date of judgment till the signing of the decree prior to
the application for a copy thereof in computing the period of limitation prescribed for filing the
appeal.
Sec.13 - Exclusion of time in cases where leave to sue or appeal as a pauper is applied for
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 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, and the court may, on payment of the court fees prescribed for such suit or appeal,
treat the suit or appeal as having the same force and effect as if the court fees had been paid in
the first instance.
Comments:
According to Section 13 of the Limitation Act, 1963, 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 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, and the Court may, on payment of the
Court fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and
effect as if the Court fees had been paid in the first instance.
Section 13 of the Limitation Act specifically excludes the time during which application in forma
pauperis is bona fide prosecuted till its rejection from computing the limitation of suit or appeal
and it also provides that on plaintiffs paying Court-fee the suit or appeal would be treated as if
the Court fee had been paid in the first instance. Such payment of Court- fee should be within
such time as was available between the initial filing of the suit and the application and the initial
expiry of the period of limitation.
Where the matter is at the stage of suit and an application for permission to sue as a pauper has
been made it is competent for the plaintiff to pay the Court fees during the pendency of that
proceeding with the permission of the Court and upon the payment of such Court fees the suit is
deemed to have been prescribed on the day when the application was first made.
In Bashir Ahmad v. Rashida Khatoon, AIR 1975 All. 286, it has been held that in such an event
on payment of Court fee by an applicant who has been made an application for leave to sue or
appeal as a pauper, on payment of Court fee the suit or appeal will not be treated as having the
same force and effect as if the Court fee had been paid in the first instance, unless the time for
payment of Court fee is extended by the Court.
If, however, the Court fee had been paid before the expiry of the period of limitation fixed to
which would be added the time during which the applicant had been prosecuting in good faith his

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application for leave to sue or appeal as a pauper or within such time as may have been extended
by the Court the suit or appeal will be treated as having the same force and effect as having the
same force and effect as if the Court fee had been paid in the first instance.
In P. Sreedevi v. P. Appu, AIR 1991 Ker. 76, it has been held that no time-limit has been set out
in Section 13 and the Court can extend time at its discretion to whatever extent it thinks fit. But it
must be proved that the applicant acted in good faith when he presented the application as
pauper.
In the same case, it has been held that an application to sue as an indigent person was rejected
with a time to pay the Court fee, but instead of paying Court-fee and converting the suit filed
along with application into regular suit, the plaintiff filing suit as a fresh suit on payment of
Court- fee, which happened to be beyond limitation the fresh suit could not be saved by invoking
Section 13 of the Limitation Act and the suit is liable to be dismissed as time-barred.
Sec.14 - Exclusion of time of proceeding bona fide in court without jurisdiction
(1) In computing the period of limitation for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether in a court of 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, from defect of jurisdiction
or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant
has been prosecuting with due diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the same relief shall be excluded,
where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction
or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure,
1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted
on permission granted by the court under rule 1 of that Order, where such permission is granted
on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or
other cause of a like nature.
Explanation - For the purposes of this Section -
(a) in excluding the time during which a former civil proceeding was pending, the day on which
that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a
proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature
with defect of jurisdiction.
Comments:
The principle of the Section is the protection against the bar of limitation of a person honestly
doing his best to get his case tried on the merits, but failing through Court being unable to give
him such a trial – AIR 1970 Pat 50, and this principle is applicable not only to cases where the
person brings his suit in the wrong Court, but also where he brings his suit in the right Court, but

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is nevertheless prevented from getting a trial on the merits by something which, though not a
defect of jurisdiction, is analogous to that defect – AIR 1949 Cal 24.
In Ramdutt Ramkissen v. E.D.Sasson & Co. AIR 1929 PC 103, Lord Salvesen in delivering the
judgment of the Privy Council observed as follows:
“It may be assumed that it had been ascertained before these provisions (i.e., Sec.14)
were formulated that there was a serious risk of injustice arising if the period of limitation, which
is in many cases shorter than in England, should be too strictly applied. In Indian litigation it is
consistent with the experience of their Lordships that the time necessary for the decision in a suit
may be of much longer duration than one is accustomed to in the Courts of Great Britain. Hence,
the necessity for some provision to protect a bona fide Plaintiff from the consequences of some
mistake which had been made by his advisers in prosecuting his claim.”
In order to attract the provisions of this Section three conditions have to co-exist:
1. The Plaintiff must have been prosecuting another civil proceeding which he relies upon
with due diligence.
2. The earlier proceedings and the later proceeding must be founded on the same cause of
action and
3. The former proceeding must have been prosecuted in good faith in a Court which, from
defect of jurisdiction or other cause of like nature is unable to entertain in – AIR 1975
Cal 203
In order to exclude time spent in the earlier proceeding the earlier proceeding should have the
effect or preventing the institution of the subsequent suit in relation to the same or identical cause
of action – ILR (1970) 2 Mad 69 (DB). The entire period from the date of institution of the
proceeding in the wrong Court till its disposal can also be said to be the period during which the
suit or proceeding was prosecuted and nothing more – AIR 1970 Pat 50.
The element of mistake is inherent in the invocation of this Section. The Section is in fact,
intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of
a wrong forum – ILR (1969) Delhi 487.
However, where two concurrent remedies were open to applicant and he chose one of them, time
spent in prosecuting that remedy cannot be excluded in computing Limitation for the other
remedy. Sec.14 will not be applicable in such a case – 1977 (WLN) (UC) 96 (DB) (Raj).
Sec.14 does not give a discretion to the Court but on the other hand the litigant is entitled, as of
right, to exclude the period spent in the infructuous proceedings provided the conditions laid
down in the Section are satisfied – AIR 1963 Punj 556.
Where the earlier proceedings were dismissed due to non-appearance of the concerned party, it is
sufficient to attract Sec.14 since the Court could not dispose of the matter on merit – 1992 (2)
Ker LJ 923.
The question whether Section 14 of the Limitation Act can be relied upon for excluding the time
spent in prosecuting remedy before a wrong forum was considered by a two Judge Bench
in State of Goa v. Western Builders (2006) 6 SCC 239 in the context of the provisions contained
in Arbitration and Conciliation Act, 1996. The Bench referred to the provisions of the two Acts
and observed:

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 "There is no provision in the whole of the Act which prohibits discretion of the court.
Under Section 14 of the Limitation Act if the party has been bona fidely prosecuting his remedy
before the court which has no jurisdiction whether the period spent in that proceedings shall be
excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of
1996: like Section 5, Section 8(1), Section 9, Section 11, sub- sections (4), (6), (9) and sub-
section (3) of Section 14, Section 27, Sections 34, 36, 37, 39(2) and (4), Section 41, sub-section
(2), Sections 42 and 43 and tried to emphasise with reference to the aforesaid sections that
wherever the legislature wanted to give power to the court that has been incorporated in the
provisions, therefore, no further power should lie in the hands of the court so as to enable to
exclude the period spent in prosecuting the remedy before other forum. It is true but at the same
time there is no prohibition incorporated in the statute for curtailing the power of the court
under Section 14 of the Limitation Act. Much depends upon the words used in the statute and not
general principles applicable. By virtue of Section 43 of the Act of 1996, the Limitation
Act applies to the proceedings under the Act of 1996 and the provisions of the Limitation
Act can only stand excluded to the extent wherever different period has been prescribed under
the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason
why Section 14 of the Limitation Act (sic not) be read in the Act of 1996, which will advance the
cause of justice. If the statute is silent and there is no specific prohibition then the statute should
be interpreted which advances the cause of justice."
Sec. 16 - Effect of death on or before the accrual of the right to sue
(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 to suits for the possession of immovable property or of a hereditary office.
Sec.17 - Effect of fraud or mistake
(1) Where, in the case of any suit or application for which a period of limitation is prescribed by
this Act,
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) 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
(c) the suit or application is for relief from the consequences of a mistake; or
(d) 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

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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:
Provided that nothing 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, has been purchased for valuable consideration by a person who was not
a party to the fraud and did not at the time of the purchase know, or have reason to believe, that
any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the
transaction in which the mistake was made, by a person who did not know, or have reason to
believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a
person who was not a party to the concealment and, did not at the time of purchase know, or
have reason to believe, that the document had been concealed.
(2) 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.
Comments:
This is an enabling Section which postpones the starting period of limitation for suits and
applications in certain cases mentioned in the Section – AIR 1959 Mad 26.
Under Section 18 of the limitation act of 1908 which corresponded to sub-Section of (1) of this
Section the mere fact that the cause of action was founded on fraud was not enough to bring the
case within the Section – AIR 1929 Rang 62.
A person desiring the invoke the aid of the Section was required to establish not only that there
was fraud by the Defendant or the Respondent but also that by means of such fraud he was kept
from the knowledge of his right to sue or apply or of the title on which such right was founded –
AIR 1974 Mad 237.
Sub-Sec.(1) of Sec.17 has been framed on the lines of Sec.26 of the limitation act, 1939, of the
United Kingdom so as to include actions based on fraud and also for relief founded on mistake.
Under the sub-Section in the case of fraud limitation is postponed even when the suit or
application is based upon fraud of the Defendant or the Respondent or his agent and it is not
necessary for the Plaintiff or the applicant to prove in such a case that the knowledge of the right
or title on which the suit or the application is founded is concealed by the fraud, though the sub-
section can be availed of even in the case of such concealment
Under this Section limitation begins to run from the time when the Plaintiff or the applicant has
discovered the fraud or the mistake or could with reasonable diligence have discovered it. The
concept of ‘reasonable diligence’ comes into play after the fraud has been perpetrated or
committed and, in the name of ‘reasonable diligence’ what the Plaintiff could have done or

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should have done before the fraud was committed cannot be taken into account – (1979) 20 Guj
LR 722 (DB).
The word ‘reasonable’ has been understood as prima facie meaning reasonable in regard to those
circumstances of which the actor called on to act reasonably knows or ought to know – AIR
1976 Mad 323.
This Section must be read consistently with the provisions of Sec.9 and, so reading it, it is clear
that the fraud must have existed at the inception of the cause of action. A fraud committed after
the limitation has begun to run cannot, in view of Sec.9 stop limitation running and this Section
will not apply to such cases – AIR 1921 Mad 283 (DB).
Section 18 of the limitation act of 1908 used the language “where any person having a right to
institute a suit or make an application has, by means of fraud, been kept from the knowledge of
such right or of the title on which it was found….. “under that Section there must not only have
been fraud but the person injured by it must have been kept from the knowledge of his right to
institute a suit or make an application, by means of such fraud – (1961) 65 WN 820 (DB).
It was therefore held in cases decided under that Section that the fraud contemplated by the
Section was an actual and active fraud in the means adopted to keep the person injured out of
knowledge of his right – AIR 1964 MP 57 (DB).
The fraud contemplated by this Section is not confined to fraud committed at the inception of the
cause of action, but may include fraud committed even before that date. Thus, where fraud is
committed by the Decree-Holder in execution proceedings taken for bringing the property of the
Judgment-Debtor to sale, this section would apply to an application by the Judgment-Debtor to
set aside the sale on the ground of fraud, though the right to apply only arises on the date of the
sale and though no fresh act of fraud is proved at the date of the sale. The reason is that the fraud
committed in the execution proceedings would have a continuing influence and would retain its
power of mischief until that influence ends. If at the date of the cause of action the effect of the
antecedent fraud continued so as to keep the person injured from knowledge of his right to seek
relief, this Section would clearly apply – AIR 1964 Ker 88.
In Narayan Sahu v. Damodhar Das, (1912) 16 Ind Cas 464 (DB) (Cal), Jenkins, C.J., held that
the view that the fraud contemplated by the Section was fraud committed at the inception of the
cause of action and not an antecedent fraud, was not in consonance with the view expressed by
their lordships of the Privy Council in Rahimbhoy v. Turner, (1893) 17 Bom 341.
Mistake
Under sub-section (1) clause (c), where relief is claimed from the consequence of mistake the
period of limitation will not begin to run until the Plaintiff or applicant could, with reasonable
diligence, have discovered the mistake – AIR 1973 Cal 119. The mistake may be a mistake of
fact or mistake of law, both are within the purview of the term ‘mistake’ – 1984 Tax LR 2570.
Where an ex parte decree was passed on 30.04.1965 and an application to set it aside was made
on 14.12.1965 on the ground that the lawyer had by mistake noted the date of hearing as
27.11.1965 and the mistake was discovered on that date, it was held that the application was not
barred by limitation – AIR 1971 MP 162.
Sec.18 - Effect of acknowledgment in writing

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(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, or by
any person through whom he derives his title or liability, 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,
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the
property or right, or avers 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 setoff, or is addressed to a person other than a person entitled to the
property or right,
(b) the word “signed” means signed either personally or by an agent duly authorised in this
behalf, and
(c) 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.
Comments:
The word ‘acknowledgement’ in this Section means an admission of the truth of one’s own
liability. Such admission may be express or implied – AIR 1871 Mys 156. A statement by X that
he is not liable to pay this amount, but Y is liable to pay it is not an acknowledgement of the debt
of X – ILR (1970) 1 Cal 459. In order to understand the liability in respect of which the
acknowledgement is made the substance of the letter of acknowledgement must be looked to –
(1968) 1 Mys LJ 271. Astatement that the Plaintiff's claim is under consideration and calling
upon him to abstain from going to Court is neither an express nor implied acknowledgement of
liability – AIR 1970 Mad 108. Where an officer of a corporate body is not empowered to
acknowledge debt on its behalf, mere recommendation on the office note sheet that amount
claimed by the Plaintiff should be paid to him or that payment should be made as soon as
sanction is received would not constitute an acknowledgement within the meaning of Sec.18 –
(1991) 2 Pat LJR 713.
This Section provides that where an acknowledgement of the right or liability in the manner
referred to, is made before the expiration of the prescribed period, a fresh period of limitation
shall be computed from the time when the acknowledgement is signed. When the prescribed
period has expired and there has been no acknowledgement before such expiration, the suit,
appeal, or application as the case may be would be barred by time – AIR 1968 Cal 280.
Generally speaking, a liberal construction should be given to the statement alleged to be an
acknowledgement, but it does not mean that when a statement is made without intending to
admit the existence of jural relationship such intention should be fastened on the person making
the statement by an involved and far-fetched process of reasoning – AIR 1971 SC 1482.
In order that an acknowledgement may give a fresh starting point under this section:

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 1. It must have been made before the expiration of the period of limitation for the suit,
appeal or application – 1988 Bank J 538 (DB) Bom.
2. It must be a clear and unambiguous acknowledgement admitting the liability.
3. It must be signed by the party or his authorised agent – AIR 1968 All 316.
4. The acknowledgement must be of a subsisting liability or existing jural relationship
though the exact nature or the specific character of the said liability may not be indicated
in words – (1970) 2 Mys LJ 533.
Sec.25 - Acquisition of easements by prescription
(1) 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 twenty 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 twenty 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.
(2) Each of the said periods of twenty years shall be taken to be a period ending within two years
next before the institution of the suit wherein the claim to which such period relates is contested.
(3) 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 “twenty years” the words “thirty
years” were substituted.
Comments:
Under the early English law, prescription was not regarded as a mode of acquiring an easement.
Where long user of a particular right was proved, it was regarded as evidence that the servient
owner acquiesced in or consented to such user being made, from which acquiescence or consent,
a grant or covenant on the part of the servient owner could be presumed, provided the nature of
the use was that that it would have been if the person claiming the right had been a grantee or a
person in whose favour a covenant had been entered into by the servient owner. A grantee or a
covenantee would exercise the right obtained by him openly and peaceably and without fear of
interruption. It was wherefore a use of this nature for a long time that gave rise to the
presumption of grant or covenant in his favour – Peacock on Easements, 3rd Edn. Pg 425
This Section has followed the general principles of English law as to the acquisition of
easements by prescription in that it prescribes that there must be use for twenty years and that
such use must be open, peaceful, as of right and without interruption – AIR 1925 Cal 788 (DB).
Although, thus, this Section contains the elements which have come down from the times when
long use was treated as raising a presumption of a grant or covenant, the acquisition of an
easement under this Section is independent of the capacity or incapacity of the servient owner to
make a grant of the easement. Thus, where a person claimed a prescriptive right to the flow of
rain water from his compound to a municipal drain it was held that whether the municipality
could grant such an easement was immaterial for deciding the question of acquisition of the
easement under Sec.26 of the Act of 1908 corresponding to this Section – AIR 1938 Pat 423.
This section only deals with the acquisition of easements and not to natural rights. An easement
is a specific right subtracted from the general rights of ownership. It is a restriction of a natural

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right. A natural right is part of the rights of ownership and imports those incidents and
advantages which are provided by nature for the use and enjoyment of by a person of his
property – AIR 1967 AP 81.
*****

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