NAGINLAL CHUNILAL Vs. OFFICIAL ASSIGNEE

JUDGEMENT

(1.) The appellant before us in this first appeal was the plaintiff in the Court below. The first defendant is the Official Assignee and the third defendant is a declared insolvent. According to the plaintiff he had purchased certain furniture from the third defendant, and had hired it back to him before the insolvency ; but when thereafter the third defendant was declared an insolvent, the Official Assignee seized the furniture in dispute, as well as other property which admittedly belonged to the insolvent and was in the insolvent s possession. The plaintiff made a claim in respect of this furniture, but the Official Assignee refused to recognize the claim, and on or shortly after the 15th September, for the exact date cannot be ascertained, the Official Assignee ordered this furniture to be sold by auction on the 25th September. On the 23rd September, or two days before the threatened sale, this suit was brought by the plaintiff.

(2.) The whole question involved in the appeal is whether the learned Judge below was right in his view that the plaintiffs suit was bad because no notice was served on the Official Assignee under Section 80 of the Civil Procedure Code. It is necessary, therefore, to consider what Section 80 requires, and what is the real character of the present suit. Section 80 lays down, so far as its provisions are immediately relevant, that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to the public officer.

(3.) In this suit the plaintiff prayed for a declaration that he was owner of the goods in question, and for a permanent injunction restraining the defendants from disposing of them by the sale. In the alternative it was prayed that the furniture should be restored to the plaintiff, or if restoration was impossible, that plaintiff should receive compensation equal to the value of the goods. The question is whether to such a suit as this the provisions of Section 80 apply. It appears to us that that question should be answered in the plaintiff s favour. It must be observed, in the first place, with reference to the phraseology of Section 80, that this is a suit brought against a public officer, other than the Secretary of State for India in Council. This observation is important since the language of the section lends colour to the view that the Secretary of State for India in Council occupies in respect of the required notice a more favourable position than any other public officer; and this view of the meaning of the section was adopted by Mr. Justice Chandavarkar in Secretary of State v. Gajanan Krishnarao (1911) I. L. R. 35 Bom. 362.