(1.) This is an appeal under Clause 5 of the Letters Patent from the judgment of Mr. Justice Shamsul Huda in a suit for recovery of damages due to an unauthorised distress warrant.
(2.) At the time of the incidents which have culminated in this litigation, the plaintiff- respondent was a resident within the Municipality of Bailey, and the defendant-appellant was its Vice-Chairman. On the 8th October 1914, the Vine-Chairman served the plaintiff with a notice of demand for dues claimed as fees payable for removal of filth from a receptacle in his house. On the 31st October 1914, a bailiff under the orders of the Vice Chairman, entered the house of the plaintiff and attempted to execute a distress warrant, as no payment bad been made in response to the demand. The present suit was instituted on the 2nd February 1915, and the substance of the complaint of the respondent was that the proceedings of the ViceChairman were malicious and the Municipality bad no authority to levy the sum claimed by summary process. The Court of first instance decreed the suit. Upon appeal the Subordinate Judge reversed that decision. On second appeal to this Court Mr. Justice Shamsul Huda has set aside the decree of the Subordinate Judge and restored that of the primary Court."
(3.) It is not necessary for our present purpose to deal with the question, whether or not the sum claimed by the Municipality was recoverable by summary process. The answer to that question turns upon the consideration of a somewhat recondite argument as to the meaning of the word rubbish in Section 6 (14) of the Bengal Municipal Act. Upon this matter of interpretation, the Courts below have been divided in opinion, and we shall assume that the sum claimed was not recoverable by summary process, as contended by the plaintiff respondent. We must also observe that the allegation of the plaintiff that the proceedings of the Vice-Chairman were actuated by malice has not been established and that finding plainly cannot be assailed in second appeal.