(2) of the Port of Madras v.

(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. As per explanation, in excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted. (3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.

(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. (5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded. Section 15 of the Limitation Act applies to a special or local law unless expressly excluded as per Section 29(2) of the Limitation Act, 1963.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

In Trustees of the Port of Madras v. Mettur Chemical & Industries Ltd., Salem, (AIR 1967 Mad.

109), it has been held that in a suit against the Port Trust the period of notice can be excluded in computing limitation prescribed in Section 110 of the Port Trust Act. The object of Section 15(1) is to safeguard the interest of the person who is precluded by an injunction or order of Court from exercising a right of suit or execution of a decree passed in his favour against his being injured or damnified on that account. As Section 15 refers to a suit or an application for execution, Section 15(1) does not apply to appeals or applications other than the application for execution. Section 15(1) is attracted for excluding the period of stay for any suit institution of which has been stayed by an injunction or order issued by Court. In order to invoke Section 15(1), there must be a decree which is operative.

A party seeking to take advantage of Section 15(1) must show that he was earlier restrained by an order from making the prayer which he is now making. But if he could have done earlier what he is trying to do now, Section 15(1) will not be attracted to his case. In Ganpat Singh v. Kailash Shankar, (AIR 1987 SC 1443), the Supreme Court has held that an application under Order XXI, Rule 95 of the CPC cannot be construed as an application for execution. The principle of Section 15(1) has been applied when the suit is stayed under Order XXXII, Rule 10 of CPC, in Govind Naik v. Basavanneva, (AIR 1941 Bom.

203). Section 15(1) comes into play only where the institution of a suit or execution of decree has been stayed by an injunction or order. In such a case the whole period during which the injunction or order is in force must be excluded in computing the period of limitation for such suit or application. It is immaterial whether the stay is direct or indirect. Consequence of the order of the Court, but the period of injunction is a period of time which has to be fully cut out, removed out of reckoning and excluded in the computation of limitation for execution. The expression “stayed by injunction or order” in Section 15(1) has reference to order of the Court and not to disability to sue or apply for execution. Section 15(1) applies only to injunction or order judicially made by the Courts but do not extend to administrative instructions issued to Courts to keep execution cases pending until further orders. In order to attract Section 15(1), it is only the order of stay passed by the Court is necessary and not that the order is proper or valid.

In Jurawan v. Mahabir, (40 All. 198), it has been held that an order merely giving time to the judgment- debtor for payment is not an order staying execution or an injunction, and Section 15 does not apply. In B. Singh v. S. Singh, (AIR 1983 P&H 174), it has been held that Section 15(1) of the Limitation Act applies also to cases of a partial stay, but only so as to allow exclusion of the period of the stay in the computation of time for a further execution against the person or the property as against whom or which execution was previously stayed and not so as to allow exclusion of that period for the purposes of a future execution against persons or properties not affected by the stay order. Section 15(1) is not confined to cases of direct stay or injunction, but can be executed to orders which indirectly but very affirmatively and effectually cause a stay.

The period of exclusion under Section 15Ø starts from the date on which the injunction or order staying the suit or execution is passed and continues till the date of its withdrawal. For that purpose both the starting and closing days as well as the period intervening them should be excluded. As per Section 15(2), the period of notice given in accordance with the requirement of any enactment for the time being in force shall be excluded. In IPS Trading Co. v. Union of India, (AIR 1973 Cal. 74), it has been held that where a plaintiff is required to give notice to the Government under Section 80 of the CPC, he is entitled to exclude the period of notice in computing the period of limitation prescribed for the suit as per Section 15(2) of the Limitation Act.

Section 15(2) expressly provides for the exclusion of the period required for obtaining the previous consent or sanction of the Government or any other authority in computing limitation. In Premlata v. Lakshman, (AIR 1970 SC 1525), it is held that under sub-section (2) of the Section 15, the notice must be a notice of suit and the enactment requiring the notice to be given must prescribe the period of notice before the expiry on which the claimant cannot institute a suit. In TPK Nair v. Union of India, (AIR 199 Ker. 80), it has been held that even if notice under Section 80 of the CPC was not strictly needed to be served upon the Government but when such a notice was served and the suit was instituted two months of the last date of limitation, then it is within time in view of Section 15(2) of the Limitation Act.

Section 15(2) will not be attracted where the plaintiff has no cause of action against the Union of India. Where the notice under Section 80 of the CPC was issued before the accrual of cause of action the period of notice will not be excluded under Section 15(2). Under Section 15(3) of the Limitation Act, a receiver including an interim receiver or a liquidator including a provisional liquidator appointed in a proceeding for adjudication of a person as an insolvent or in proceeding for the winding up of a company as the case may be is entitled for the exclusion of the period between the date of application and the date of appointment and also additional period of three months thereafter in computing the period of limitation for filing suit or execution as such receiver or liquidator. Section 15(3) has specifically provided for giving him a period of three months after his appointment to file a suit or a petition for executions as he requires time to acquaint himself with the affairs of the estate or of the company, as the case may be. To obtain the benefit of Section 15(4), the following conditions have to be fulfilled: (i) The suit should be one for possession by the purchaser at a sale in execution of the decree; and (ii) It should be a suit and not an application. If the above conditions are fulfilled then the time during which a proceeding for setting aside the sale had been prosecuted shall be excluded. As Section 15(4) only attracts a suit and not an application, the application under Order XXI, Rules 95 and 96 of the CPC will not attract Section 15(4) of the Limitation Act. Section 15(5) of the Limitation Act has reference only to the absence of the defendant from the realm, not to that of the plaintiff.

A plaintiff out of the realm may prosecute a suit by his attorney, but when the defendant is out of the realm it is very hard to call upon the plaintiff to institute a suit. The plaintiff’s voluntary absence in a foreign country cannot bar the operation of limitation. Section 15(5) is equally inapplicable even if the plaintiff’s absence may be involuntary through transportation.

In sub-section (5) of Section 15, the defendant is one who was at one time present in India and later has been absent from India. A person who has never been in India cannot be considered as having been ‘absent from India’. The onus is upon the plaintiff to prove that the defendant has been absent from India or from the territories under the administration of Government of India. In P.J. Johnson v.

Astrofied Armadorn, [AIR 1989 Ker. 53 (FB)], the Court has held that in a suit for recovery of money for goods and services supplied to the ship of a foreign Corporation the foreign corporation was never present in India and necessarily, therefore, was never absent from India and Section 15(5) cannot, therefore, be attracted while computing the period of limitation for a suit filed in India against such corporation to recover the price of goods and services. In Jivanraj v. Babaji, [29 Bom. 68 (70)], it has been held that the period of defendant’s absence would be deducted from computation, no matter whether such absence took place before or after the accrual of the cause of action.

In Muthukanni v. Andappa, [AIR’ 1955 Mad, 96 (FB)], it has been held that in a suit against partners, where one of the partners is absent from India, it has been held that the fact of his absence entitles the plaintiff b. to deduct the time not against all the defendants, but against the absentee defendant only; and the fact that the plaintiff has allowed the suit to be barred against the other partners who are present in India during the absence of the absentee is not a ground for holding that the claim against the absentee is also barred by limitation. Section 15(5) of the Limitation Act applies even where to the knowledge of the plaintiffs, the defendants (partners in a firm) are during the period of their absence carrying on business in India through an agent, who is empowered to institute and defend suits. According to Section 2(e) of the Limitation Act, ‘defendant’ includes (i) any person from or through whom a defendant derives his liability to be sued; (ii) any person whose estate is represented by the defendant as executor, administrator or other representative.

So the expression ‘the time during which the defendant has been absent from India’ must be read as ‘time during which the defendant or any person from or through whom the defendant derives his liability to be sued has been absent from India’.

x

Hi!
I'm Mary!

Would you like to get a custom essay? How about receiving a customized one?

Check it out