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 respondent.