CHHAGANLAL KISHOREDAS Vs. COLLECTOR OF KAIRA

JUDGEMENT

(1.) There are no doubt dicta in some of the decisions of this Court, which detached from the context, would seem to lend support to the view that Section 424 of the old Civil P. C. (Act XIV of 1882), reproduced as Section 80 of the new Code, applies only to actions in tort. But carefully examined, those decisions lay down that actions ex contract are excluded from the operation of the section. The true test of an action for the purposes of Section 424 is whether the - wrong complained of as having been done by the public officer sued amounts, first, to a distinct act on his part, and, secondly, whether that act purported to have been done by him in his official capacity: Bhau Balapa V/s. Nana (1888) I.L.R. 13 Bom. 343. Both these elements must combine to render necessary the giving of notice under Section 424 as a condition precedent to suit.

(2.) In the present case they both exist. What is complained of is that in the exercise of the power conferred upon him by the provisions of Section 3 of the Bhagdari Act (Bombay Act V of 1862), the Collector has declared the plaintiff's mortgages illegal and inoperative, and that thereby he has enabled one of the mortgagor's heirs to take possession of the land mortgaged with possession to the plaintiff; and the Court is asked to set aside the Collector's order, containing the declaration, as null and void. The declaration is a distinct act of the Collector, done in the exercise of a statutory power and therefore in his official capacity.

(3.) But it is urged that Section 424 must be held not to apply to such a suit, brought under the Bhagdari Act, because, it is said, the Act is a complete piece of legislation by itself for its own purposes and is unaffected by the provisions of Section 424 of the Code. This argument is based upon the fact that, according to Section 3 of the Act, a suit to set aside the Collector's order as invalid must be brought within three months from the date of its execution, whereas, according to Section 424, no suit against a public officer can be brought " until the expiration of two mouths next after notice in writing has been delivered to or left at the office of " the officer. It is contended that the application of Section 424 to a suit under Section 3 of the Bhagdari Act has the inevitable result of cutting down the three months period of limitation prescribed in the section to one month and that the legislature must not be presumed to have contemplated such a result and the taking away partly by means of the Code what it had given by means of the Act.