REVATI MOHAN DAS Vs. JATINDRA MOHAN GHOSH

JUDGEMENT

(1.) The appellant in this case is the mortgagee under a mortgage for Rs. 30,000 and interest, dated 19 January 1916, upon an estate known as Taluk Raj Narain Sen. The mortgage was executed by one Raj Mohan Guha, who was then the common manager of the estate, appointed under S. 95, Ben. Ten. Act, 1885. It was duly sanctioned by the local Court, and there is now no dispute as to its validity or as to the amount due under it. The mortgage debt was repayable in January 1931. Raj Mohan Guha was then dead, and one Harihar Ghosh had been appointed in his place, but the affairs of the estate being involved, he was unable to redeem the security, though he seems to have made some payments on account. He died in September 1926, and his son, respondent 1, was appointed manager in his place. On 17th December of the same year the appellant instituted a suit on his mortgage in the Court of the Subordinate Judge of Dacca, claiming the usual relief. The defendants to the suit were the manager and a large body of persons interested in the estate. Their Lordships note that the repeated recital of their names at length occupies about one quarter of the printed record, an expense which they think might well have been avoided.

(2.) The Subordinate Judge on 28 November 1927, passed a preliminary mortgage decree in favour of the appellant, and on 4 January 1928. a final decree for sale of the estate properties in discharge of the mortgage debt. The manager and one of the other defendants who is respondent 3 before the Board appealed to the High Court. The two appeals were heard together, and on 31 August 1931, the decrees of the Subordinate Judge were set aside and the suit dismissed, the ground of reversal being that the manager was entitled to two months' previous notice of the suit under S. 80, Civil P. C., and no such notice had been given. The mortgagee plaintiff has now appealed to His Majesty in Council, contending that the section referred to has no application to his suit and that no notice was necessary. The manager alone has appeared in support of the High Court decree, and the only question raised is that of notice. S. 80, Civil PC, is as follows: "80. No suit shall be instituted against the Secretary of State for India in Council, or 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, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the district, and, in the case o? a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."

(3.) Assuming for the purposes of this appeal, that the common manager of an estate appointed under S. 95, Ben. Ten. Act, is a public officer within the meaning of the section-a proposition which is disputed by the appellant-their Lordships think that the decision of the High Court was wrong, and that no notice of suit was required. In the case of a suit against a public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined. Counsel for respondent 1 contends that this condition was satisfied by the execution of the mortgage, or, alternatively, by the failure to pay off the mortgage. In their Lordships' opinion neither branch of this contention is sufficient to bring the section into play in the present case. On the first branch it is sufficient to point out that the mortgage was not executed by respondent 1, but by a former manager, and that the appellant does not complain in any way of the execution of the mortgage. This contention does not seem to have been raised in the High Court.