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1934 Supreme(SC) 7
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACMILLAN, LORD WRIGHT, AND SIR GEORGE LOWNDES.
REVATI MOHAN DAS - Appellant
Versus
JATINDRA MOHAN GHOSH (DEFENDANTS) - Respondents
On appeal from the High Court at Calcutta.
Decided On : January 30, 1934
Solicitors for appellant : Hy. S. L. Polar & Co.
Solicitors for respondent No. 1: Stanley Johnson & Allen.
Section 80 of the Code of Civil Procedure requires notice only for acts purporting to be done by a public officer in their official capacity; the mere omission to pay a mortgage debt is not such an act, nor is it an illegal omission requiring statutory notice.
Headnote:(A) Code of Civil Procedure, 1908 - Section 80 - Suit against public officer - Requirement of notice - Suit for sale of mortgage - Whether failure to pay mortgage debt constitutes an "act purporting to be done" in official capacity - Notice not required where the suit is for the realization of dues from an estate and not based on an act purporting to be done by the officer in his official capacity.
(B) General Clauses Act, 1897 - Section 3, sub-section 2 - Definition of "act" - Inclusion of "illegal omission" - Failure to exercise an option to pay a debt to avoid sale does not constitute an illegal omission or an act purporting to be done in an official capacity.
Facts of the case:
A mortgage was executed by a common manager of an estate appointed under the Bengal Tenancy Act. Following the death of the original manager, a successor was appointed. When the mortgage debt was not repaid, a suit for sale was instituted against the current manager and other interested parties. The High Court dismissed the suit on the ground that the manager, being a public officer, was entitled to two months' notice under Section 80 of the Code of Civil Procedure.
Findings of Court:
The court held that the suit did not fall within the ambit of Section 80 of the Code of Civil Procedure. The execution of the mortgage was performed by a predecessor, and the current manager's failure to pay the debt was not an "act purporting to be done" in an official capacity.
Issues: Whether the omission to pay a mortgage debt by a public officer constitutes an "act purporting to be done" in his official capacity, thereby necessitating a statutory notice under Section 80 of the Code of Civil Procedure.
Ratio Decidendi: Section 80 of the Code of Civil Procedure is applicable only where the plaintiff complains of some act purporting to have been done by a public officer in his official capacity. The failure to pay a debt, or the failure to exercise an option to pay to save a sale, is not an act "purporting to be done" in an official capacity, nor is it an illegal omission or a breach of duty, especially when the suit seeks the sale of the estate and not personal relief against the officer.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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notice requirements
- section 80 cpc
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notice requirements
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civil procedure
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property law
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mortgages
- foreclosure and sale
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mortgages
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administrative law
-
public officers
- official capacity and liability
-
public officers
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 notice required by the section. The judgment is reported at I. L. R. 59 C. 961.
The terms of s. 80 of the Code of Civil Procedure, 1908, are stated in the judgment of the Judicial Committee.
1933. Dec. 12, 14. Dunne K.C. and Wallach for the appellant. The High Court in holding that a common manager is a " public officer " within the meaning of s. 80 of the Code of Civil Procedure followed Beni Madhab Sukul v. Deb Narayan Sukul . (( 1919) 24 C. W. N. 138.) The grounds upon which that decision was given are not wholly satisfactory, but it may be that the result arrived at was correct, having regard to s. 2, sub-s. 17 (d), of the Code and the rules made under s. 100 of the Bengal Tenancy Act (Sens Bengal Tenancy Act, App. VI., p. 126) see also Naba Kishore Mandal v. Atul Chandra Chatterji . (( 1912) I. L. R. 40 C. 150.) Although therefore the appellant by his printed case has contended that the respondent No. 1 was not a " public officer," he does not rest his appeal upon that contention. Nor, having regard to the judgment of the Board in Bhagchand Dagadusa v. Secretary of State for India (( 1927) L. R. 54 I. A. 338.), is it contended, as held by the trial judge, that s. 80 relates only to a suit founded on a tort. Respondent No. 1 was not entitled to notice under s. 80, because the suit was not in respect of an act purporting to be done by him in his official capacity. The omission to pay the debts on the due date was not an " act purporting to be done " by him. Though by s. 3, sub-s. 2, of the General Clauses Act, 1897, the word " act " may include an " illegal omission," the omission to pay the debt cannot be so described see Strouds Legal Dictionary
s.v. "illegal."
De Gruyther K.C. and Parikh for the respondent No. 1. It was rightly held that this respondent was a " public officer " within s. 80 Murari Lal v. E. V. David (( 1924) I. L. R. 47 A. 291.); Skippers & Co., Ld. v. E. F. David (( 1926) I. L. R. 48 A. 82.) ; Beni Madhab Sukul v. Deb Narayan Sukul . (24 C. W.
N. 138.) Respondent No. 1 being under an official duty to pay the mortgage debt at the due date, his failure to do so was an " illegal omission " within the meaning of s. 3, sub-s. 2, of the General Clauses Act, 1897. In construing a provision like s. 80, it was well established before 1897 that the words " act done " include an omission by an official to do an act which he is under a duty to do Wilson v. Halifax Corporation (( 1868) L. R. 3 Ex. 114.); Poulsum v. Thirst . (( 1867) L. R. 2 C. P. 449.) Sect. 3, sub-s. 2, of the Act of 1897 was intended to embody that rule of construction. But even if the omission to pay was not an " act " within s. 90, the suit may also be regarded as in respect of the mortgage, which was an " act " done by the common manager, the predecessor of the resp
