The judgment establishes the interpretation of 'act purporting to be done by such public officer in his official capacity' under S. 80, Civil P.C. and the sufficiency of the notice required under S. 80.

JUDGMENT

Rankin, C.J. - The plaintiffs in this suit are three in number Prasaddas Sen,. Santoshlal Sen and Hrishikesh Sen. They bring their suit against Kamalkrishna. Shelley Bonnerjee, Official Receiver of this Court, and their case is that in Suit No. 923 of 1919, by a consent decree,, dated 8th July 1920, the Official Receiver was appointed a receiver of certain immovable properties belonging to the defendants in that suit, including the promises known as No. 1, Shama Bai Lane, and; that pursuant to an order, dated 10th September 1920, the Official Receiver took: possession of the said premises under the consent decree. The defendants in the previous suit were a firm trading under the name or style of B. N. Sen & Brothers, in which firm the plaintiffs and1. Bholanath Sen, defendant 2 in the present suit, were partners.

2. The plaintiffs' case is that the premises; No. 1, Shama Bai Lane, were let to one Ramnarayan Jalan on a monthly rent of Rs. 4-01 and they allege that the Official Receiver

wilfully neglected and defaulted in realizing regularly the rents of the said premises and took no steps for the collection thereof, as a result of which considerable loss and damage-has been caused to the plaintiffs.

3. In particular they say that a sum-amounting to Rs. 16,660, being arrears of rent due from the said Ramnarayan Jalan, has been lost and has become irrecoverable by the wilful default and gross negligence of the defendant in failing to collect the same as receiver. The plaintiffs have joined Bholanath Sen as a defendant to the present suit as he has refused to join them as a plaintiff. The plaintiffs ask for a decree against the Official Receiver for Rs. 16,660 and also for an order that he do render accounts on the footing of wilful default and that judgment may be given against him for such sum as may be found due upon such account. The suit has been dismissed by the learned trial Judge on the ground that, u/s 80, Civil P.C., it was obligatory on the plaintiffs to give notice as therein prescribed.

4. The plaint did not originally contain an allegation that any such notice of action had been given, but it was amended by an order, dated 28th June 1927 by the addition of a statement that notice as contemplated by the section was duly served upon the Official Receiver on 18th May 1925. The defence u/s 80 was not taken originally in the written statement, and it appears that leave was given to amend the plaint, by including the allegation as to notice having been given, as a result of the Official Receiver's desire to amend his written statement by taking an objection to the suit on the ground of want of notice. The plaint was filed on 4th February 1927, the Official Receiver's written statement was filed on 24th February 1927. On 16t'h June 1927, the Official Receiver took out a summons for leave to amend the written statement, and on 18th June 1927 the plaintiffs took out a summons for leave to amend their plaint. It is reasonably clear that no question of waiver or estoppel arises to prevent the Official Receiver from making good the plaint as to want of notice.

5. Three questions require to be considered. The first is whether the Official Receiver, acting under an order appointing him. to be receiver of a particular estate, is a public officer and this question has to be decided upon a consideration of the definition of "public officer" given in Clause 17, Section 2 of the Code. The second question is whether neglect of default in realizing the rents, issues and profits of properties in respect of which the Official Receiver has been appointed a receiver by a decree of this Court comes within the words

any act purporting to be done by such public officer in his official capacity.

6. If these two questions are answered in the affirmative, then the last question is whether or not the letter of 18th May 1925 is a notice sufficiently complying with the requirements of the section. It is not disputed that the letter in question was s