P. Krishna Swami Sastri vs Syed Ahmed and Others

Curgenven, J.—The Civil Revision Petition is filed by the 19th defendant, a Receiver in a pending mortgage suit, against the finding of the

Subordinate Judge under the 20th issue, ''whether the suit is bad for want of notice u/s 80, Civil Procedure Code.'' The contention is, of course,

that the Receiver is a public officer, and that has not been disputed before me. But the point in issue is whether the suit is against him ""in respect of

any act purporting to be done by such public officer in his official capacity."" I think it is clear that those words refer to a past act and not to any

action merely contemplated or threatened. This has been held by a Bench of this Court in Arunachalam Chetty v. David 99 Ind.Cas.284 : 50 M.

239 : 24 L.W.730 : 51 M.L.J.671 : A.I.R.1927Mad.166, which was a suit for a prepetual injunction restraining an Official Receiver from selling

certain property which vested in him in insolvency. I am asked to hold that the later Privy Council case, AIR 1927 176 (Privy Council) , renders

that decision no longer good law. But I cannot find that their Lordships have held anything more than that Section 80 will apply to any kind of suit,

whatever the relief sought, including a suit for an injunction. But, of course, it may very well be that a suit for an injunction may be based upon past

acts, and not merely upon an apprehension of future action. That in fact was the case there, because the relief asked for was in the first place a

declaration that certain official notices and orders were ultra vires and invalid and, secondly, for an injunction permanently restraining all executive

action thereunder. Their Lordships expressly say that unless the right to the first relief was made oat, the prayer for the second necessarily failed,

and it is apparent that the first relief could not have been claimed against the defendants unless they had had notice u/s 80, There is not even any

discussion with regard to the expression ""for any act purporting to be done,"". and I cannot accordingly read into the decision any construction of

that phrase. It has also been held in Kashi Bai v. Chunilal 122 Ind Cas. 857 : A.I.R.1930Bom.11 : 31 Bom.L.R.1199: Ind. Rul. (1930) Bom. 185

that a suit, for instance, by a mortgagee against a Receiver as representing a mortgagor would not be subject to the provisions of Section 80. The

case law is discussed in this decision, and grounds are given for distinguishing between the two classes of cases. In the latter class only when the

suit is founded upon some act by the official defendant which is complained of is notice required. In the present case, I have found considerable

difficulty in discovering why the Receiver has been impleaded. It cannot very well be said that his appointment was illegal having been made in due

course of law, and when 1 asked the learned Advocate appearing for the petitioner what act of the Receiver it was intended to impugn he was only

able to reply that it was not an act but an omission (which no doubt stands upon the same footing) to pay the plaintiff his one-twelfth share in the

income of the properties which he claims. A reference to the plaint, however, will show that that is not the subject-matter of the suit and that it is

confined to obtaining that payment in respect of future collections and not to requiring that the monies, if any, collected in the past should be liable

to contribute towards it. In these circumstances, I cannot say that the learned Subordinate Judge is in error in holding that Section 80 does not

apply and I dismiss the revision petition with costs of the plaintiff-1st respondent.