PURNA CHANDRA SARKAR Vs. RADHARANI DASSYA

JUDGEMENT

(1.) 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 23 June 1920 and ending on 7 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 under Section 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 V/s. Purna Chandra Sarkar 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 under Section 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 to the present case, are by no means direct authorities for the proposition that a receiver is a public officer within the meaning of S. 80, Civil P.C. When the matter was before the Court on the application for leave to appeal to the Privy Council, the learned Chief Justice gave a judgment which at the first glance may be taken to confirm the decision given by Page, J., but a closer examination of the proceedings before the Court presided over by the Chief Justice shows I think that decision goes very little beyond saying that upon the assumption that a receiver as such is entitled to notice under Section 80, the fact that he has ceased to be the receiver does not render the giving of notice unnecessary on that account. It is a somewhat remarkable phenomenon that no one till very recently seems to have thought of raising the question of the necessity of serving notice on a receiver under Section 80. That section has been in existence from 1908 yet it does not appear ever to have been suggested before the case I have first mentioned that a receiver as such ought to be afforded the protection under Section 80. Speaking for myself and also I think for my learned brother, I must say that I "was somewhat startled to hear it argued that receivers must be treated as public officers within the meaning of S. 80. But for the purposes of this appeal however we do not think it necessary to express any definite opinion of our own . upon the point because in the view which we take with regard to the peculiar circumstances and the facts of the present eases we think that even upon the assumption that the Courts below were right in thinking that the receiver is entitled to a notice under Section 80, the defendants in the present suit have so conducted themselves in these proceedings as to lose the privilege afforded by S. 80. That brings me to the reasons given by the learned Additional District Judge for coming to the conclusion that the absence of a notice under Section 80 did not put the plaintiffs out of Court. The learned District Judge said thus: The appellants further contend that whereas the suit was lodged on 1 February 1924 it was not until 11 January 1926 that the respondents took the plea that they were entitled to notice under Section 80. The appellants contend from this that the effect that delay was to cause the privilege, if it existed, to be waived.