BLS LLB 5 Years Sem 9 CPC 2024-25 - ATKT Set 2 60/40 Question Paper with Solutions

An ex parte decree is a decree passed in the absence of the defendant. Under Order IX Rule 6(1)(a), where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, and it is proved that the summons was duly served, the court may order that the suit be heard ex parte and may proceed to pass a decree.

Section 2(j) of the Limitation Act, 1963 provides that "prescribed period" means the period of limitation computed in accordance with the provisions of this Act. The same clause defines "period of limitation" as the period prescribed for any suit, appeal or application by the Schedule.

A garnishee is a third person who owes a debt to the judgment-debtor, or who holds money on his account, and who is directed by the executing court to pay that debt into court, or to the decree-holder, in satisfaction of the decree. The procedure is in Order XXI Rule 46 and Rules 46A to 46I. The word comes from the French garnir, to warn.

Review is an application to the same court which passed the decree or made the order, by a person considering himself aggrieved, asking that court to reconsider its own decision. Section 114 confers the right and Order XLVII Rule 1 limits it to three grounds: discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced by him; a mistake or error apparent on the face of the record; and any other sufficient reason. Article 124 gives thirty days.

Section 2(11) defines "legal representative" to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

4. He must be ready and willing to pay or deliver it to the rightful claimant.
5. There must be no pending suit in which the rights of the claimants can properly be decided.

Order XXXV supplies the procedure.

Rule 1, plaint in interpleader suit. In addition to the ordinary particulars, the plaint shall state that the plaintiff claims no interest in the subject-matter other than for charges or costs; the claims made by the defendants severally; and that there is no collusion between the plaintiff and any of the defendants.

Rule 2, payment of thing claimed into court. Where the thing claimed is capable of being paid into court or placed in its custody, the court may order the plaintiff so to do, and may make his doing so a condition of proceeding.

Rule 3, procedure where the defendant is suing the plaintiff. Where any of the defendants is actually suing the plaintiff in respect of the subject-matter, the court in which that suit is pending shall, on being informed, stay the proceedings in that suit.

Conclusion. The interpleader suit is the remedy of a stakeholder, not of a claimant. Where the five requisites of section 88 are made out he is discharged at the first hearing under Order XXXV Rule 4, with his costs and with a charge on the thing claimed under Rule 6 if he needs one, and the court then decides the title between the defendants. The proviso to section 88 and the two bars in Rule 5 mark its edges: no interpleader where a pending suit can settle the same rights, and none by an agent against his principal or a tenant against his landlord.

Rule 6A(3): the plaintiff shall be at liberty to file a written statement in answer to the counterclaim within such period as the court may fix.

Rule 6A(4): the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.

Rule 6B requires the defendant, where he seeks to rely on a counterclaim, to state specifically in his written statement that he does so by way of counterclaim.

Rule 6C allows the plaintiff to apply, before issues are settled, for an order that the counterclaim be excluded and disposed of by an independent suit; the court may so order if it thinks fit.

Rule 6D is the practical heart of the Order: if in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

Rule 6E provides that if the plaintiff makes default in putting in a reply to the counterclaim, the court may pronounce judgment against him on the counterclaim or make such other order as it thinks fit.

Rule 6F empowers the court, where the defendant establishes a claim exceeding the plaintiff's, to give judgment for the balance in the defendant's favour.

A caveat is a caution or warning lodged with a court by a person who apprehends that an application is going to be made, or has been made, in a suit or proceeding instituted or about to be instituted, in which he is likely to be affected, asking the court not to grant any order on that application without first giving him notice. It is provided for by section 148A, inserted by the Amendment Act of 1976.

Section 148A in its five sub-sections:

(1) Right to lodge a caveat. Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect thereof.

(2) Notice by the caveator. Where a caveat has been lodged, the person by whom it has been lodged shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be made. Since the Repealing and Amending Act, 2025, in force from 20 December 2025, the words are "speed post with registration and proof of delivery".

This is the same question as Q.2 (b). The paper prints "Counter Claim" twice in Q.2, as item (b) and again as item (d), and the Marathi translation prints प्रत्युत्तर दावा twice in the same places. A section that offers "any two of four" therefore offers, in truth, any two of three: Interpleader Suit, Counter Claim and Caveat.

The answer is at Q.2 (b) above, and nothing is added here that is not there: Order VIII Rules 6A to 6G, the counterclaim as a cross-suit under Rule 6A(2), the plaintiff's written statement in answer under Rule 6A(3), exclusion under Rule 6C, survival of the counterclaim under Rule 6D when the plaintiff's suit is stayed, discontinued or dismissed, judgment for the balance under Rule 6F, and the comparison with legal and equitable set-off.

Conclusion. The paper offers this note twice, as item (b) and again as item (d), and there is no difference between them: attempt Counter Claim once and take your second note from Interpleader Suit or Caveat. On the law, the point that carries the marks is that a counterclaim has the effect of a cross-suit and therefore survives the plaintiff's suit under Rule 6D, where a set-off, being only a defence, falls with it.

For full marks, cover: that the commission wanted is one for local investigation under section 75(b) and Order XXVI Rule 9; the seven kinds of commission in section 75; the powers of a commissioner under Order XXVI Rule 16; that the report is evidence under Rule 10(2); and the tenancy point, that the civil court's jurisdiction may be ousted by the Bombay Tenancy and Agricultural Lands Act, 1948.

(i) The type of commission

The commission that fits these facts is a commission for local investigation, under section 75(b) read with Order XXVI Rule 9.

Section 75 sets out seven purposes for which a court may issue a commission, subject to conditions and limitations prescribed:

(a) to examine any person (Order XXVI Rules 1 to 8);

(b) to make a local investigation (Rule 9);

(c) to examine or adjust accounts (Rules 11 and 12);

(d) to make a partition (Rules 13 and 14);

(e) to hold a scientific, technical or expert investigation (Rule 10A);

(f) to conduct a sale of property which is subject to speedy and natural decay and which it is desirable to sell at once (Rule 10B);

(g) to perform any ministerial act (Rule 10C).

Clauses (e), (f) and (g) were added by the Amendment Act of 1976.

The status of the report. Order XXVI Rule 10(1) requires the commissioner to return the commission with his report and the evidence taken, signed by him. Rule 10(2) is the crucial one: the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. The court or, with its permission, any of the parties may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report. Rule 10(3) allows the court, where it is dissatisfied with the proceedings, to direct further inquiry or to issue a fresh commission.

Who bears the cost. The party who applies ordinarily deposits the commissioner's fee and expenses in advance, and the costs abide the result of the suit.

Conclusion. The commission to be issued here is one for local investigation under section 75(b) and Order XXVI Rule 9, because the questions that will decide the suit are questions about the land itself, its identity, boundaries, extent and actual possession, and no oral evidence answers them as well as an inspection. The report and the evidence the commissioner takes are evidence in the suit under Rule 10(2), but he decides nothing. And on these facts the civil court must in any event refer the tenancy question to the Mamlatdar, because section 85 of the Bombay Tenancy Act takes it away from the civil court.

The rule of general application is in section 107(1)(d) and Order XLI Rule 27: an appeal is a rehearing on the record made in the trial court. The appellate court decides on the evidence which was before the court below. Additional evidence is the exception, and the burden of bringing the case within an exception is on the party who asks.

(ii) When the court may allow it: the three grounds in Order XLI Rule 27(1)

(a) Where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. The appellate court is here correcting a wrong ruling of the trial court on admissibility.

(aa) Where the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. This clause was inserted by the Amendment Act of 1976. The test is due diligence, and the burden is squarely on the applicant.

Conclusion. No, a party is not entitled to produce additional evidence in appeal, and Order XLI Rule 27(1) says so in terms before it admits three exceptions. The appellant will succeed only if the trial court wrongly refused the document, or if he can show that despite due diligence it was not within his knowledge and could not be produced, or if the appellate court itself finds it needs the document to pronounce judgment. The requirement is the court's, not the party's, and Rule 27(2) obliges the court to record its reasons for admitting anything.

Four, and Y may pursue more than one.

1. Application to set aside the ex parte decree, Order IX Rule 13. This is his proper remedy. The court shall set aside the decree if he satisfies it that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The application lies to the court that passed the decree, and Article 123 of the Limitation Act gives thirty days from the date of the decree, or from when he had knowledge of it where the summons was not duly served.

On these facts the second ground is squarely made out. A serious accident on 12 November 2024, one day before the hearing, which also prevented him from informing his advocate, is a cause for which the defendant cannot be blamed and which genuinely prevented him from appearing. Y should file the application within thirty days, supported by an affidavit and by the medical records, hospital admission papers, discharge summary and, if there is one, the accident report or FIR, and should explain in terms why the advocate could not be reached.

The court will usually set the decree aside on terms as to costs, and will then restore the suit to the file. Y will also need leave to file his written statement, since none was filed.

The mirror image of the case is governed by Order IX Rule 8: where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim or part of it, in which case the court shall pass a decree against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder.

The consequence is severe and is the point of the question. Order IX Rule 9(1) provides that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. He may apply for an order setting aside the dismissal, and if he satisfies the court that there was sufficient cause for his non-appearance, the court shall set aside the dismissal and appoint a day for proceeding with the suit. Article 122 of the Limitation Act gives thirty days for that application.

So the contrast between the two sides of Order IX is worth stating expressly:

For full marks, cover: Order XXXII Rule 12 and the position where a defendant sued as a minor has in fact attained majority; that a misdescription is an irregularity, not a nullity, and Order I Rule 9 and section 99; the distinction from a decree passed against a real minor with no guardian appointed; and Rule 3A, which requires prejudice to be shown.

(i) What Mr. Shah should do

Three steps, in this order.

Order XXXII Rule 14, which allows a person on attaining majority to apply that a decree or order passed against him be set aside on the ground of the gross negligence or misconduct of his next friend or guardian for the suit. That is his direct statutory route, and it is the one the question is aimed at.

Appeal under section 96, and review under section 114, remain open on the ordinary conditions.

Step 3. Show prejudice. This is the requirement he must be ready to meet, and it is explained in (ii).

(ii) Can he challenge the decree merely because he was wrongly described?

No, not on the misdescription alone. He must show that the misdescription caused him prejudice.

Three provisions decide it.

Order XXXII Rule 3A(1): no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, unless prejudice has thereby been occasioned to the interests of the minor. The Code's own approach to defects in the representation of a minor is thus that prejudice, not the defect, is the test.

So the question becomes: was he in fact prejudiced? He will succeed if he can show, for instance, that the guardian failed to file a written statement, or did not lead evidence, or admitted a fact he would have denied, or compromised without leave, and that a defence genuinely open to him was lost. He will fail if the guardian defended competently and the case was decided on its merits.

Conclusion. Mr. Shah should apply to have the guardian discharged and, the decree having been passed, to have it set aside, his direct route being Order XXXII Rule 14 and, if the decree was ex parte, Order IX Rule 13 within thirty days. But he cannot succeed on the misdescription alone. Order XXXII Rule 3A, Order I Rule 9 and section 99 all point one way: this is an irregularity in the proceedings, not a defect of jurisdiction, and he must show prejudice, which means showing what defence the guardian lost him.

For full marks, cover: section 2(17) and the kinds of mortgage under section 58 of the Transfer of Property Act; Order XXXIV rule by rule, foreclosure, sale and redemption; the preliminary and final decree scheme and the six month period; Rule 5's right to pay at any time before confirmation of sale; Rule 14 on the bar to bringing a mortgaged property to sale otherwise than by a mortgage suit; and the limitation Articles 61, 62 and 63.

I. The setting

Section 2(17) of the Code defines a "public officer", not a mortgage; the substantive law of mortgages is in sections 58 to 104 of the Transfer of Property Act, 1882, and the procedure for enforcing a mortgage is in Order XXXIV of the Code, containing fifteen rules.

Rule 1, parties to suits for foreclosure, sale and redemption. Subject to the provisions of the Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. The Explanation provides that a puisne mortgagee may sue for sale without making the prior mortgagee a party, and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.

Order IV Rule 1 and Order VII govern the plaint generally; the plaint must state the mortgage, the sum due, and the relief claimed.

III. Foreclosure: Rules 2 and 3

Rule 4, preliminary decree in a suit for sale. The court shall pass a preliminary decree in the same terms as in Rule 2, but providing that in default of payment the mortgaged property, or a sufficient part of it, shall be sold and the proceeds applied in payment of what is found due.

Rule 5, final decree in a suit for sale. Where before a final decree debarring the defendant from all right to redeem has been passed, or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3), the defendant makes payment into court of all amounts due, the court shall pass a final decree directing the plaintiff to deliver up the documents and retransfer the property. Where payment is not made, the plaintiff may apply for a final decree and the property shall be sold.

Rule 5 gives the mortgagor a right that survives the decree: he may pay up at any time until the sale is actually confirmed. That is the practical difference between foreclosure and sale, and it should be stated.

V. Redemption: Rules 7, 8 and 8A

VI. The remaining rules

Rule 6 provides that where the net proceeds are insufficient, the court may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for the balance.

Rule 9 deals with a decree in a suit for redemption of one of several mortgages.

Rule 10 provides for costs of the mortgagee subsequent to the decree, added to the mortgage money.

Rule 11 governs the payment of interest: interest up to the date fixed for payment on the principal at the rate payable on the principal, or, where no rate is fixed, at nine per cent per annum, and on the aggregate of the costs, charges and expenses at nine per cent per annum.

Rule 12 governs sale of the property subject to a prior mortgage.

Rule 13 provides for the application of the proceeds: first, the expenses of the sale; second, what is due to the plaintiff on the mortgage; third, subsequent mortgagees; and the residue to the person entitled.

The asymmetry is deliberate: the mortgagor gets thirty years to redeem, because the right of redemption is jealously protected, and the maxim is "once a mortgage, always a mortgage"; a clog on the equity of redemption is void.

The cases to cite. Jayasingh Dnyanu Mhoprekar v. Krishna Babaji Patil, (1985) 4 SCC 162, is the governing principle behind the whole Order: the right of redemption is an incident of the mortgage and cannot be clogged, and it can be extinguished only in a manner known to law, that is by act of parties, by a decree of the court, or by statute. That is why Order XXXIV builds every mortgage suit around a preliminary decree that gives the mortgagor a period to redeem before a final decree can follow.

For full marks, cover: the meaning and nature of an appeal; sections 96 to 99A and 107; the four situations in which no first appeal lies; Order XLI rule by rule, memorandum, stay, ex parte hearing, cross-objections, additional evidence and the powers under Rule 33; and the limitation Articles 116 and 117.

I. Meaning and nature

An appeal is the judicial examination by a higher court of the decision of a subordinate court, at the instance of a party aggrieved by it. The word is not defined in the Code. An appeal from an original decree is called a first appeal, and the law is in sections 96 to 99A and Order XLI.

Three propositions about its nature, each worth a line:

An appeal is a creature of statute. There is no inherent right of appeal; it exists only where a statute gives it.

An appeal is a continuation of the suit. The proceedings are a rehearing, and the appellate court has, by section 107(2), the same powers and performs as nearly as may be the same duties as a court of original jurisdiction.

Who may appeal. A party to the suit who is adversely affected by the decree; a person claiming under such a party, such as a transferee or a legal representative; and any other person aggrieved, with the leave of the appellate court, where he is bound by the decree or prejudicially affected by it.

Section 97 provides that where a party aggrieved by a preliminary decree does not appeal from it, he shall be precluded from disputing its correctness in any appeal preferred from the final decree.

Section 98 governs the decision where the appeal is heard by two or more Judges: where they are equally divided, the decree of the lower court is confirmed, unless the case is referred to a larger Bench.

Section 99 is the rule against interference for technicalities: no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. The proviso excludes non-joinder of a necessary party. Section 99A applies the same rule to orders under section 47.

III. Order XLI: the procedure

Rule 5, stay of proceedings and of execution. An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred. The court may, for sufficient cause, order a stay, and sub-rule (3) requires it to be satisfied that substantial loss may result to the applicant unless the order is made, that the application has been made without unreasonable delay, and that security has been given by the applicant for the due performance of the decree.

Rules 9 to 12 govern registration of the appeal and the day for hearing; Rule 11 allows summary dismissal after hearing the appellant, without sending notice to the respondent; Rule 12 requires notice of the day fixed for hearing to be served on the respondent.

Rule 17, dismissal for the appellant's default. Where on the day fixed the appellant does not appear, the court may dismiss the appeal. The Explanation, added in 1976, is important: nothing in this rule shall be construed as empowering the court to dismiss the appeal on the merits.

Rule 19 allows the appellant to apply for readmission of an appeal dismissed for default on showing sufficient cause.

Rule 23, remand. Where the court from whose decree the appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may remand the case. Rule 23A extends the power to a case disposed of otherwise than on a preliminary point, where a retrial is considered necessary. Rule 24 allows the Appellate Court to determine the case finally where the evidence on the record is sufficient. Rule 25 allows it to frame issues and refer them for trial to the court below.

Rule 27, additional evidence. The parties shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, except in three cases: (a) where the court below refused to admit evidence which ought to have been admitted; (aa) where the party establishes that, notwithstanding the exercise of due diligence, the evidence was not within his knowledge or could not be produced by him at the time the decree was passed; or (b) where the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. Sub-rule (2) requires the court to record the reason for its admission.

Article 117: appeal from a decree or order of a High Court to the same court, thirty days.

Section 12(2) of the Limitation Act excludes the day of pronouncement and the time requisite for obtaining copies of the decree and the judgment. Section 5 allows condonation of delay on sufficient cause, and Order XLI Rule 3A governs the application.

The cases to cite. Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, states the duty of the first appellate court: it is a court of both fact and law, its judgment must reflect a conscious application of mind and must record findings supported by reasons on all the issues arising with the contentions of both sides, and it cannot simply affirm the trial court. Madhukar v. Sangram, (2001) 4 SCC 756, is to the same effect: sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence.

For full marks, cover: the definition and the classification, prohibitory and mandatory, temporary and perpetual; that the substantive law is sections 36 to 42 of the Specific Relief Act, 1963 and the procedure sections 94(c) and 95 and Order XXXIX of the Code; Order XXXIX Rules 1 and 2 verbatim; the three tests; Rules 3, 3A, 4 and 5; and the consequence of disobedience under Rule 2A.

I. Definition

An injunction is a judicial process by which a party is ordered to refrain from doing, or to do, a particular act or thing. It is a preventive relief, granted at the discretion of the court, and it operates in personam, that is, against the person of the party enjoined.

The classification:

By what it commands:

Prohibitory, restraining the doing of a wrongful act. This is the ordinary form.

A caution on section numbers. Some papers in this subject refer to "temporary injunction under section 37 of the Code of Civil Procedure". That is a misdescription. Section 37 of the Code defines "the court which passed a decree"; it has nothing to do with injunctions. The provision meant is section 37 of the Specific Relief Act, 1963, and within the Code the relevant provisions are section 94(c), section 95 and Order XXXIX.

II. The provisions in the Code

Section 94(c): in order to prevent the ends of justice from being defeated, the court may, if it is so prescribed, grant a temporary injunction and, in case of disobedience, commit the person guilty thereof to the civil prison and order that his property be attached and sold.

Section 95: where, in a suit in which an injunction has been granted, it appears to the court that there were no sufficient grounds for granting it, or the suit is dismissed and it appears that there was no reasonable or probable ground for instituting it, the court may, on the defendant's application, award reasonable compensation not exceeding the pecuniary jurisdiction of the court.

III. Order XXXIX: the grounds

Rule 1, cases in which a temporary injunction may be granted. Where it is proved by affidavit or otherwise:

Rule 2, injunction to restrain repetition or continuance of breach. In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

IV. The three tests

Rules 1 and 2 state the occasions; the conditions on which the discretion is exercised are settled by the courts and are three. All three must be satisfied; failure on any one is fatal.

1. A prima facie case. The applicant must show that there is a serious question to be tried and that on the material before the court there is a probability of his being entitled to the relief he asks. He need not prove his case; he must show that it is not frivolous and that it raises a triable issue.

Section 41 of the Specific Relief Act lists the cases in which an injunction cannot be granted, and they should be named: to restrain a person from prosecuting a pending judicial proceeding, unless to prevent a multiplicity of proceedings; to restrain a proceeding in a court not subordinate to that from which the injunction is sought; to restrain a person from applying to a legislative body; to restrain the institution or prosecution of a proceeding in a criminal matter; to prevent the breach of a contract the performance of which would not be specifically enforced; to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; to prevent a continuing breach in which the plaintiff has acquiesced; where equally efficacious relief can certainly be obtained by any other usual mode of proceeding; where the conduct of the plaintiff or his agents disentitles him to the assistance of the court; and where the plaintiff has no personal interest in the matter.

V. Procedure: Rules 3 to 5

Rule 5 provides that an injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal action it seeks to restrain.

Rule 2A, consequence of disobedience or breach. In the case of disobedience of an injunction granted under Rule 1 or Rule 2, or of a breach of any of the terms on which it was granted, the court may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release. No attachment shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and the court may award such compensation as it thinks fit out of the proceeds.

For full marks, cover: the object and the maxims; section 3 and the duty of the court; the rule that limitation bars the remedy and not the right, with section 27 and section 25(3) of the Contract Act as the two qualifications; the structure of the Act and the Schedule; the computation machinery grouped; and section 29(2) on special and local laws.

I. The object

The Limitation Act, 1963 prescribes the period within which an existing right may be enforced in a court of law. It does not create rights and it does not take them away; it limits the time within which the assistance of a court may be claimed.

Two maxims state the policy:

Interest reipublicae ut sit finis litium : it is in the interest of the State that there should be an end to litigation.

Vigilantibus non dormientibus jura subveniunt : the law assists the vigilant and not those who sleep over their rights.

Section 3(2) tells you when a suit, appeal or application is "instituted", "preferred" or "made": a suit is instituted in an ordinary case when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as such is made; and in the case of a claim against a company being wound up by the court, when the claimant first sends in his claim to the official liquidator.

The provisions the section is "subject to" are sections 4 to 24, which are the computation machinery, and it is only after they are applied that the "prescribed period" is known.

III. The rule that limitation bars the remedy, not the right

This is the single most examined proposition in the subject.

The general rule. The expiry of the period of limitation destroys the remedy but leaves the right alive. The debt is not paid, the obligation is not discharged, the title is not lost. What is lost is the ability to sue upon it.

Four consequences of the rule, which are the proof of it:

Section 27, extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Here the Act does destroy the right, and that is the foundation of adverse possession under Article 65 (twelve years) and Article 112 (thirty years where the plaintiff is the Government).

Section 25, acquisition of easements by prescription. Where the access and use of light or air to a building, or a way, watercourse or use of water or other easement, has been peaceably enjoyed as an easement and as of right, without interruption, and for twenty years, the right becomes absolute and indefeasible; and where the property belongs to the Government, the period is thirty years. Sub-section (2) requires the period of twenty years to be one ending within two years next before the institution of the suit in which the claim is contested. Here the Act creates a right rather than destroying a remedy.

IV. The structure of the Act and of the Schedule

The Act has 32 sections in five Parts and a Schedule in three Divisions:

The cases to cite. Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107, is the liberal pole: substantial justice is to be preferred to technical considerations, and refusing to condone can throw a meritorious matter out at the threshold. Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81, is the strict pole: sufficient cause is a condition precedent, and the court has no power to condone on equitable grounds where it is not shown. N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, reconciles them: the length of the delay is immaterial, the acceptability of the explanation is the only criterion.

Conclusion. The Limitation Act does not create or destroy rights; it fixes the time within which a court will help you enforce them, and the maxim behind it is that the law assists the vigilant. Section 3 makes that a duty of the court rather than a plea of the party. The general rule is that limitation bars the remedy and not the right, which is why a written promise to pay a time-barred debt is enforceable under section 25(3) of the Contract Act; and the two exceptions, section 27 and section 25, are the places where the Act does touch the right, by extinguishing a title and by creating an easement.