MANILAL GANGADAS DESAI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This was a suit filed by the Secretary of State for India in Council against twelve defendants. The 1st defendant was the Secretary and the 2nd defendant was the accounts clerk of the Kaira Municipality. The other defend ants were Councillors of that Municipality. The relief claimed was the recovery from the defendants of certain sums of money said to have been embezzled from the Municipality by the defendants Nos. 1 and 2.

(2.) The learned District Judge of Ahmedabad gave the plaintiff a decree against the defendant-Councillors, but upon a technical ground refused to grant a decree against the Secretary and the accounts clerk, though he held them guilty of the embezzlements imputed to them. The present appeal is brought by the Municipal Councillors.

(3.) The first point taken by the learned pleader for the appellants was by way of demurrer to the suit, it being contended that the plaintiff was not entitled to sue even on the facts as stated in the plaint. Now, the plaintiff s title to sue was by him based upon Section 42 of the Bombay District Municipalities Act of 1901, and the question between the parties on this point is solely whether Section 42 of the Act is applicable on the state of faces alleged in the plaint. That state of facts is that three sums of money belonging to the municipal fund were embezzled by the 1st and 2nd defendants, paid servants of the Municipality, and that these embezzlements were facilitated by the appellant-Councillors gross negligence of their duties as such Councillors. It is argued for the appellants that even upon those facts Section 42 is not applicable to the suit inasmuch as the embezzlements by paid servants of the Municipality would not amount to misapplication of the municipal funds within the meaning of the section. I was at first impressed by this argument, but on further consideration it seems to me that it ought not to prevail.