The main legal point established in the judgment is that the obligation of giving notice to receivers as public officers under Section 80, Civil P.C. may be waived if the defendants delay in raising the notice requirement causes prejudice to the plaintiffs.

JUDGMENT

Costello, J. - This is an appeal from a decision of the Additional District Judge of Dacca whereby he reversed the decision of the Subordinate Judge, 2nd Court of Dacca. Originally there were three suits brought against certain receivers in which the plaintiffs were claiming general accounts. Before the conclusion of the matter however the claim of the plaintiffs as against two set of receivers was adjusted to the satisfaction of the plaintiffs and accordingly the Court of first instance was only called upon to give judgment in the case of one sot of receivers, namely Babus Brindaban Chandia Basak and Purna Chandra Sarkar and that in respect of the period commencing 23rd June 1920 and ending on 7th February 1921. The learned Subordinate Judge decided all the issues against the plaintiffs; and it is against that judgment that an appeal was preferred to the Court of the District Judge of Dacca.

2. Only two points have been taken before us and the determination of the first one is in our opinion sufficient to decide this appeal. The second point has reference only to the mode of taking accounts and does not materially affect the question of the liability of the receiver. The main point is the question whether or not it was obligatory upon the plaintiffs as a condition precedent to the institution of the suit to give notice to the defendants on the basis that, as they were receivers they were "public officers" under the provision of Section 2, Civil P. C, and whether or not the absence of such notice necessarily precluded the plaintiffs from succeeding in the suit. The learned Subordinate Judge decided that having regard to the definition contained in Section 2, Civil P. C, a receiver is a public officer and as such is entitled to notice as prescribed by the provisions of S. 80, Civil P. C, and he was of opinion that these provisions not being complied with, the plaintiff's suit ought to fail. The learned Subordinate Judge also referred to certain authorities which appeared to him to support this view of the matter and he based his conclusion upon the fact that in his opinion there was close analogy between the position of a receiver and that of a common manager. When the matter came before the Additional District Judge on appeal, he agreed with the learned Subordinate Judge that a receiver before being sued was entitled to a notice u/s 80, Civil P. C, and as no notice had been given to the defendants in the present suit, but for certain circumstances in the case, that would of itself have debarred the plaintiffs from succeeding with their claim. At the time when this matter was before the lower Courts there was apparently no decision of any of the High Courts which in terms decided that a receiver appointed by the Court in a suit came within the definition of a public officer contained in Section 2, that consequently he was entitled to the privilege conferred on a public officer by S. 80, Civil P.C. Since the judgment was given in the lower appellate Court however there has been a decision of this Court which seems to constitute a direct authority for the proposition that a receiver is a public officer for the purpose of S. 80, Civil P.C. I refer to the case of Sm. Radharani Dassya and Others Vs. Purna Chandra Sarkar and Another, AIR 1930 Cal 737 which was an application to this Court for leave to appeal to the Judicial Committee of the Privy Council against the decision given by Page, J. and Patterson, J., whereby those learned Judges had decided on the authority of certain cases cited before them that the receiver was in fact entitled to a notice u/s 80, Civil P.C. That decision is particularly pertinent to the present proceeding because in fact it was given in an appeal which arose out of a. suit in which the parties to the present suit were also parties.

3. It is to be observed however that the judgment of Page, J., is based on certain cases which were cited in the course of the judgment. Those cases, though analagous t