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CONDONATION OF DELAY

A brief analysis on section 5 of limitation act 1963

LAW RELATING TO LIMITATION

Submitted to:
Asst. Prof. PANKAJ UMBARKAR
Faculty of law
MATS Law School, MATS University
Raipur, Chhattisgarh, India

Report by:
AMAN GYAN DAS
MU12BALLB008
UG Student (Semester 9th), BA-LLB (Honors)
MATS Law School, MATS University
Raipur, Chhattisgarh, India
November 2016
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Acknowledgement

Gratitude is the noble response of ones soul to kindness or help generously rendered by another
and its acknowledgment is a duty and joyance. So it is that I express briefly my debt to those
who have made the creation of this project possible.
I thank the almighty, Lord on whom I believe and depend on. My each and every achievement is
nothing but a look of the God on me.
Then I sincerely thank to our Director Dr. G.P. Tripathi and the faculty of the MATS Law School
for giving me opportunity and facility to complete this work. I would like to thank my subject
teacher Asst. Prof. Pankaj Umbarkar for assigning me this project topic and for helping and
guiding me in every step during completion of this project.
Last but never the least I extend my wholehearted thankfulness to my family and friends who
helped me a lot to complete the project.

Table of content

CHAPTER I
Introduction ...01
CHAPTER II
Section 5 of limitation act 1963.....02
CHAPTER III
Certain cases where this provision is not applicable..07
CHAPTER IV
Rule 105 of Order XXI of Code of Civil Procedure, 1908.08
CHAPTER V
Amendments made to Code of Civil Procedure.....09
CHAPTER VI
Conclusion 11
Bibliography..12

Introduction
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Section 5 of the Indian Limitation Act, 1963 (Act 36 of 1963)is an enabling provision to assist
the litigants who failed to do an act within the prescribed time period as originally fixed under
the various enactments. For example a litigant who failed to file an Appeal before the superior
courts within the permissible time period as originally fixed then he can file it after the expiry of
the prescribed time period provided he has to shown sufficient cause for non-filing the Appeal
within the time period. Likewise while running a case either before the subordinates courts or
any superior courts; the litigants has to file necessary applications under various enactments for
smooth running of the case, but such an applications has not been filed in-time then he can file it
latter on provided he has to shown sufficient cause for late filing of the same.
Whether Section 5 of the Indian Limitation Act, 1963 will applicable to the Execution
Proceedings instituted under the Code of Civil Procedure, 1908
The project discusses number of important factors related to section 5 of the limitation act. In the
very beginning gist of section 5 of limitation act which deals with condonation of delay is
provided, then along with number of cases to supplement the provision, after it non application
of section 5 are provided in all the given situations this section does not applies. Later the project
deals with rule 105 of order 21 of CPC.
Project also includes amendment made in the code of civil procedure, and this is how the project
is concluded.

Section 5 of Limitation Act 1963


Condonation of delay is defined under Section 5 of the Limitation Act, 1963, which is applicable
in case of appeal. Section 5 of Limitation Act, 1963 is a facilitating provision to aid the litigants,
who failed to perform within the prescribed time period as initially preset beneath different
ratifications. While the limitation period prescribed under various acts is very short, this section
5 of the limitation act is then commenced to congregate the end of justice, such that the principle
of justice is not overcome simply for the reason that there is Sufficient cause is there due to
which appeal was not filed in the court of law.

Section 5 of the Indian Limitation Act, 1963 which states as follows:

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.

The expression Sufficient cause is an essential express in this section. While the section is not
a subject of right for the party, who pray for the condonation but it is the only discretion of the
Honble Court of law to grant condonation or not.
The court of law must be satisfied that the delay is caused due to an authentic cause.
Case laws:
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The Supreme Court of India in a latest decision, in the case of Balwant Singh v/s Jagdish Singh
& Others had the juncture to deal with the idea of 'condonation of delay' and 'sufficient cause' as
contained in the Limitation Act, 1963. The Apex Court, while dealing with various authorities on
the subject matter, has culled out ethics, which are:

In the case of Mithailal Dalsangar Singh, a Bench of this Court had incident to deal with the
provisions of Order 22 Rule 9, CPC and while articulating the philosophy controlling the
application of and implementing of discretion under these provisions, the Court of law repeated
the theory, that the abatement is usual and not even a detailed order is required to be passed by
the Court in that behalf. It would be helpful to replicate paragraph 8 of the said judgment which
has a posture on the matter in controversy before us:

Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of
abatement has to be construed strictly. On the other hand, the prayer for setting aside abatement
and the dismissal consequent upon abatement, have to be considered liberally. A simple prayer
for bringing the legal representatives on record without specifically praying for setting aside of
abatement may in substance is construed as a prayer for setting aside the abatement. So also a
prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for
setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an
application for bringing the legal representatives on record within the prescribed period of
limitation is automatic and specific order dismissing the suit as abated is not called for. Once the
suit has abated as a matter of law, though there may not have been passed on record a specific
order dismissing the suit as abated, yet the legal representatives proposing to be brought on
record or any other applicant proposing to bring the legal representatives of the deceased party
on record would seek the setting aside of an abatement. A prayer for bringing the legal
representatives on record, if allowed, would have the effect of setting aside the abatement as the
relief of setting aside abatement though not asked for in so many words is in effect being actually
asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not
called for.
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In the case of State (Nct of Delhi) v/s Ahmed Jaan, 1, Phrase "sufficient cause" must be
considered with practicality in justice tilting approach relatively than procedural recognition of
sufficient cause for explaining regular and intentional delay. Question referred to High Court to
make a decision on the criminal revision on merits, proposals made to avoid delay in State
litigation, administration of justice. Now the issue occurs, what can be the sufficient cause
which the court accepts-:

(1) Disease or ill health: - it is the sufficient cause when it is confirmed devoid of the logical
reason that the appellant or petitioner was not able to file an appeal.
(2) Imprisonment: - The imprisonment of the appellant or petitioner can be another sufficient
cause.
(3) Ignorance of law is not an excuse but it can also be a one of the grounds but it should be
authention or bonafide.
(4)

Mistake of fact: - It should be genuine and unintended.

(5) Delay in obtaining copies of judgment can be sufficient cause and at the same time this
ground is also sheltered under section 12.
(6)

Poverty, childhood, Pardah system for women is another ground.

(7)

Mistake of Counsel: - Mistake by counsel of appellant which should not be inattention.

But to have the benefit of the Section 5 of the Limitation Act, 1963, there should be no
carelessness due to functioning of the party is a requirement, also span of delay is not an issue of
worry but logical clarification, why the delay has happened is the focus of this section.

1 August 12, 2008


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Therefore while concluding, the court of law prefer moderate approach in favour of justice and
court of law favour only logical or reasonable pleas to condone any delay in filing an appeal with
the court. Though the court must be swayed ahead of rational disbelief that the delay was
authentic and it must be condoned in favour of justice. Also there should be nonexistence of
carelessness in order to make the cause logical.
Section 5 of the Indian Limitation Act, 1963 which runs as follows:
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.

Karma Kaur v Jalandhar Improvement Trust and Others, Civil Appeal Jurisdiction, Civil
Appeal No 4915-4918 OF 2014, Supreme Court of India judgement dated April 28, 2014

Kumar etc etc Vs Karnataka Industrial Coop Bank Ltd and Another, Criminal Appeal
Jurisdiction, Criminal Appeal No. 2049-2066 of 2012, Supreme Court of India judgement
dated December 14, 2012 - Case related to bank loan taken on fake goal loan and
evidence related to it

Gurcharan Singh Vs Surjit Singh and Another, I.A. Nos. 2 to 6 in Special Leave Petition
(C) No. 7735 of 2010, Supreme Court of India order dated November 2, 2012

Certain cases where this provision is not applicable


Section 5 of the Indian Limitation Act, 1963 is applicable only to the situation where the
suit or appeal is already filed and pending for disposal. Suppose the Suit or Appeal is not
filed within the stipulated time-period, then this provision is not applicable to get an
extension of time period for filing the same.
Likewise this provision is applicable only to the proceedings which are exclusively
pending before the Courts and it is not applicable to the proceedings pending before any
Tribunals because mostly the Tribunals shall be constituted only by an act of Special
Laws which prescribes all mode of remedies and it never borrows any provisions from
outside sources and to put it in other words such Special Laws can be called as Selfcontained Enactments. For example, Rent Control Acts, Banking Tribunals, Income Tax
Tribunals, Land Acquisition Act, etc.,
Likewise for the enforcement of the Decrees, Orders passed by the court of law the
litigants has to file an Execution Petition before the Executing Court by exercising the
provisions as enshrined under the Chapter Execution in Part II (Sections 36 to 74) with
the aid of Order XXI of the First Schedule of Code of Civil Procedure, 1908 (5 of 1908).
For filing such an Execution Petition Section 5 of the Indian Limitation Act, 1963 is
strictly not applicable because the Execution Petition should be filed within the timeperiod as originally fixed under the Enactments failing which the litigants/Decree-Holder
in the eyes of law had exhausted his lawful remedies as such he cannot thereafter
enforcing his rights as enshrined under the Decrees, Orders, etc., passed by the Courts in
his favour.

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Rule 105 of Order XXI of Code of Civil Procedure, 1908


Rule 105: Hearing of application: (1) The Court, before which an application under any of the
foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the
applicant does not appear when the case is called on for hearing, the Court may make an order
that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the
Court does not appear, the Court may hear the application exparte and pass such order as it
thinks fit.
Explanation: An application referred to in sub-rule (1) includes a claim or objection made under
rule 58.
Thereafter a proviso was added to sub-rule (3) by way of an Amendment made by the Madras
High Court which was published by the Tamil Nadu Government Gazette

[1]

dated 27-02-1972,

Part V, Page 1523 which is applicable to both Tamil Nadu and Puducherry Courts and the
proviso which runs as follows: Provided that an application may be admitted after the said
period of thirty days if the applicant satisfies the Court that he had sufficient cause for not
making the application within such period

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Amendments made to Code of Civil Procedure


A major amendments were made to the Code of Civil Procedure, 1908 (5 of 1908) by way of
Amendment Act 104 of 1976, Amendment Act 46 of 1999 and Amendment Act 22 of 2002 and
all those Amendment Acts in its Repeal and Savings Clauses clearly specifics that any
amendment made or any provision inserted in the principal Act by a State Legislature or High
Court shall also stand repealed, except insofar as it is consistent with the provisions of the
principal Act.
So again a doubt arises that what is meant by Principal Act with reference to the Code of Civil
Procedure, 1908 (5 of 1908) for which lot of judicial pronouncements are there which
unanimously held that Principal Act which refers only to the "body of the Code" or the
"Sections Part of the Code" and not to the First Schedule of the Code of Civil Procedure, 1908.
As such in view of Section 122 of the Code of Civil Procedure, 1908 the High Courts have the
powers to annul, alter or add to all or any of the rules in the First Schedule of Code of Civil
Procedure, 1908 and it implies that the High Courts have not powers to amend the "body of the
Code" or the "Sections Part of the Code"....
Collaborative discussions
In view of the Amendments made to the First Schedule of the Code of Civil Procedure, 1908 (5
of 1908) which discusses the Orders and Rules for implementing the Act among which a Proviso
to sub-rule (3) of Rule 105 of Order XXI which paves ways to the defaulting litigants who
satisfies the Court that he had sufficient cause for not making the application within the
prescribed period.
So Section 5 of the Indian Limitation Act, 1963 which strictly prohibits from entertaining any
application under this Section before the Executing Court which implies in its words that, 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)" as such the Madras High Court has made an
Amendment to the Code of Civil Procedure, 1908 thereby a new Proviso was added to sub-rule
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(3) to Rule 105 of Order XXI (vide Tamil Nadu Government Gazette 2 which paves ways to the
defaulting litigants who satisfies the Court that he had sufficient cause for not making the
application within the prescribed period as held by the Honble Madras High Court in its
landmark decision dated 12-08-2011 in N.Rajendran Vs. Shriram Chits Tamil Nadu Private
Limited, rep. by its Branch Manager which is reported3

2 dated 27-02-1972, Part V, Page 1523)


3 [2011 (5) Madras Law Weekly 174].
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Conclusion
As mandated under Section 5 of the Indian Limitation Act, 1963 (Act 36 of 1963) no application
would be maintainable before the Executing Court under this provision as such it is clearly
concluded that Section 5 of the Indian Limitation Act, 1963 is strictly non-applicable to
Execution Proceedings and the aggrieving party who lost his rights by way of his default may
seek remedy under the provisions of the Code of Civil Procedure, 1908 (5 of 1908) itself since it
seems to be a Self-contained Enactment for every exigencies arisen thereof.
In this project number of important factors are covered related to section 5 of the act. In the very
beginning gist of section 5 of limitation act which deals with condonation of delay is provided,
then along with number of cases to supplement the provision, after it non application of section 5
are provided in all the given situations this section does not applies. Later the project deals with
rule 105 of order 21 of CPC.
Project also includes amendment made in the code of civil procedure, and all the above
mentioned details are well explained in this project.

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Bibliography
1. http://www.tn.gov.in/stationeryprinting/gazette/gazette_list.php
2. http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=33666
3. http://www.hcmadras.tn.nic.in/jacademy/e%20journal/2011/eNovember
%202011.pdf
4. http://courtverdict.com/
5. http://www.lawnotes.in/Section_5_of_Limitation_Act,_1963#ixzz45EECfvr8

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