Judgement

Appeal (No. 90 of 1932) from two decrees of the High Court (August 31, 1931), which reversed a preliminary decree (November 28, 1927) and a final decree for sale (January 4, 1928) made by the Subordinate Judge of Dacca in a suit by the appellant upon a mortgage.

The mortgage in suit was executed on January 19, 1916, by the common manager of an estate appointed under s. 95 of the Bengal Tenancy Act ; the mortgage was executed with the previous sanction of the District Court. Before the date provided for repayment the common manager died and respondent No. 1 was appointed in his place. The money not having been repaid as provided the appellant instituted the present suit against the respondents for sale on the mortgage.

The High Court, reversing the decrees of the Subordinate Judge, dismissed the suit. The learned judges held that respondent No. 1, the common manager, was a " public officer " within the meaning of

s. 80 of the Code of Civil Procedure, 1908, that the suit was instituted against him in respect of an " act purporting to be done " in his official capacity within that section, and that consequently the suit could not be maintained in the absence of the written n