Seshagiri Aiyar, J.

[1] Plaintiffs had lent money on a mortgage to one Sankariah. Apprehending that this man was about to dispose of his property, they filed a suit in the District Munsif s Court and obtained an order for attachment of certain moveable properties belonging to him. In the mean-time, a distraint upon the properties had been effected for arrears of revenue. The Village Munsif sold them and after remitting to the Taluk treasury the amount recoverable from Sankariah, paid the balance over to him. This was after the attachment by the District Munsif. The plaintiffs sue the Village Munsif who is the first defendant in this suit for damages, alleging that the 1st defendant colluded with Sankariah and paid the balance of the sale-proceeds to him. The District Munsif was of opinion that the 1st defendant was not aware of the attachment by the Civil Court and dismissed the suit. The Subordinate Judge has found that the 1st defendant was aware of the attachment by the Civil Court and that he fraudulently paid over the balance of the sale-proceeds to Sankariah. An attempt was made in this Court to question the correctness of this finding. But I see no reason for not accepting the conclusion of the Subordinate Judge.

[2] The first additional issue in the case was, whether the 1st defendant is entitled to notice as required by Section 80 of the Civil Procedure Code before action was brought. The Subordinate Judge has come to the conclusion that as the Village Munsif acted fraudulently Section 80 has no application.

[3] It is not disputed that the action of the 1st defendant was within his powers as Village Munsif. The proclamation for the arrears, the sale of the property and the payment of the balance to the defaulter were all acts which as Village Munsif he was competent to do, but, on the finding of the lower Appellate Court, there can be no doubt that, in performing these duties, the 1st defendant was acting with malice. The point for decision is, whether in consequence of this want of bona fides, the 1st defendant has forfeited his right to notice before action. Although the case was very fully argued on both sides, as we thought that this was a matter in which Government was interested, we requested Mr. Ramesam, the Government Pleader, to assist us as amicus curi and we are very much indebted to him for his assistance.

[4] Section 80 of the present Code, which corresponds to Section 424 of the old Code of Civil Procedure provides for notice in suits in respect of any act purporting to be done by a public officer in his official capacity. The language on the face of it does not import that unless the act is bona fide, the public officer will not be entitled to notice. There may be cases in which the public officer does acts which are not within his sphere of duties. In regard to them, he is not entitled to notice. But, when the acts are intra vires the language of the Code does not suggest that there must be also bona fides, if the protection afforded by Section 80 is to be availed of. But there are decisions which have held that the section is not applicable to persons who act maliciously. There are apparently two conflicting views regarding the meaning to be attached to the words purporting to act." One set of authorities inclines to the view that where a public servant does the act knowingly and dishonestly for purposes which are not within the intent, although they may be within the letter of the powers he is clothed with, he cannot be said to be acting or purporting to act as a public servant. The other view puts a literal construction on the words. In that view, any one who performs his functions within the letter of the law, whatever may be his motives or ulterior intentions, must be regarded as having acted or purported to have acted as a public servant.

[5] Now I shall examine the authorities. The earliest case in which the principle of bona fides was enunciated was in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871, Cunningham, J., in that case says that a public officer is entitled to notice only in those cases in which some inadvertent act was committed by him in the discharge of his official duty. The learned Judge relies upon the English cases in support of this proposition. Theobald v. Crichmore (1818) 1 B. & Ald. 227 : 106 E.R. 83 : 19 R.R. 297, the first case relied on, was not a case in which any question of notice arose. The point considered by Lord Ellenborough, C.J., in that case was whether a constable forfeited his right to the shorter period of limitation because he acted illegally in the discharge of his duties. The learned Chief Justice points out, referring to the Statute he was construing, that it was only intended to protect persons acting illegally but with a bona fide intention of discharging their duty. The other case is Attorney-General v. Hackney Local Board (1875) 20 Eq. 626 : 44 L.J. Ch. 545 : 33 L.T. 24

4. That was a case relating to injunction. The Vice-Chancellor pointed out that in cases of injunctions a notice was not necessary because the object of the suit will be frustrated if an injunction cannot at once be obtained against the contemplated misfeasance by the public authority. Then he says: "The policy of the law is, that if these public bodies, entrusted with powers for public purposes, in the course of executing those powers shall happen to commit any inadvertence, irregularity, or wrong, then before anybody has a right to require payment from them in respect of that wrong they shall have an opportunity of setting themselves right; they shall have the period of a month for the purpose of making amends, or for restoring if they have taken away anything, and for paying for, if they have done any damage." It is on these two decisions that Mr. Justice Cunningham bases his conclusion that where any inadvertence or bona fides has not been proved the public officer is not entitled to any notice. This decision has been sought to be distinguished in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058, but I think the learned Judges in the latter case were not satisfied that the earlier decision was right In Ganoda Sundary Chaudhurani v. Nalini Ranjan Raha 1 Ind. Cas. 514 : 36 C.28 : 12 C.W.N. 1065, Mr. Justice Woodroffe says that the section can apply only to defendants who are sued in an admitted official capacity, but not as individual trespassers. This view will have the effect of placing defendants, whether they act honestly or dishonestly, at the mercy of the plaintiff on the question of notice. I may also refer to Raghubans Sahai v. Phool Kumari 32 C, 1130 at p. 1134 : 1 C.L.J. 542, which was relied on by Mr. Chenchiah on behalf of the respondent. Mookerjee, J., therein points out that no notice need have been given to the Secretary of State as there was no relief claimed against him on the ground of fraud. Then he refers to Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 and apparently agrees with the view taken by Cunningham, J., in that case. The observations were obiter. In Peary Mohan Das v. Weston 13 Ind. Cas. 721 [LQ/CalHC/1911/401] : 16 C.W.N. 145 at p. 214;130 Cr. L.J.65, Fletcher, J., quotes Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 and Raghubans Sahai v. Phool Kumari 32 C, 1130 at p. 1134 : 1 C.L.J. 542 and lays down the proposition that a public officer sued in respect of an act done in bad faith is not entitled to notice under Section 80. The matter was taken up in appeal in Weston v. Peary Mohun Das 23 Ind. Cas. 25 : 40 C. 898 : 18 C.W.N. 18

5. The decision of Fletcher J., was reversed; and 1 find nothing in that judgment on the question of notice.

[6] In Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241 Mr. Justice Banerji apparently acted upon the principle stated in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 87

1. The same learned Judge in Bakhtawar Mal v. Abdul Latif 29 A. 567; A.W.N. (1907) 170 distinguishes his earlier decision. In Collector of Bijnor v. Munuvar 3 A. 20 at p.23 : 2 Ind. Dec. (N.S.) 6 the acts charged against the Collector were certainly not done by him bona fide. Still the Full Bench in that case held that the Collector was entitled to notice when he wrongfully attached and sold property as agent to the Court of Wards. In Bachicha Singh v. Jafar Beg 30 Ind. Cas. 173 [LQ/AllHC/1915/198] : 13 A.L.J. 788, where a Police Inspector was the defendant and the complaint against him was that at the instigation of certain persons he illegally arrested the plaintiff and sent him for trial, Tudball, J., held that notice under Section 424 was necessary. The learned Judge does not examine the earlier cases upon the question of notice. But it is clear that this judgment cannot be reconciled with the judgment of Mr. Justice Banerji in Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241.

[7] As regards Bombay, in Ranchhod Varajbhai v. Municipality of Dakor 8 B. 421 : 4 Ind. Dec. (N.S.) 656 Sargent, C.J., says that the object of the provision about notice would appear to be to give protection to Municipal bodies or other officers who in the bona fide discharge of public duties have committed illegal acts by their conduct. In Cecil Grey v. Cantonment Committee of Poona 7 Ind. Cas. 679 : 34 B. 583 : 12 Bom. L.R.615 the learned Judges say that in all actions of tort the public officer is entitled to notice. In Chhaganlal Kishoredas v. Collector of Kaira 7 Ind. Cas. 993 [LQ/BomHC/1910/94] : 35 B. 42 : 12 Bom. L.R. 825 Chandavarkar, J., says that the true test of an action for the purpose of Section 424 is "whether the wrong complained of as having been done by the public officer sued amounts, first, to a distinct act on his part, and secondly, whether that act purported to have been done by him in his official capacity. Both these elements must combine to render necessary the giving of notice under Section 424 as a condition precedent to it." I find that Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 was quoted before the learned Judge, yet he does not say that a further condition of the applicability of Section 424 is that the act should have been done bona fide. There are no Madras reported cases, Mr. Ramesam has referred us to an unreported judgment in Second Appeal No. 1545 of 1901 which is certainly opposed to the view taken in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871.

[8] I shall now refer to the English Law on this subject.

[9] Before 56 and 57 Vic. Ch. 61, known as the Public Authorities Protection Act of 1893, there were various enactments which contained provisions for giving notice to public officers before action was brought against them. Most of them were repealed and a comprehensive enactment was passed by Parliament. The first section enunciates a uniform rule of limitation by providing that "the action must be commenced within six months next after the act, neglect or default complained of or in case of a continuing injury or a damage within six months next after the ceasing thereof." The same section provides further that if before action was brought there was a tender of amends, ordinarily costs shall not be awarded against the public servant; and that if in the opinion of the Court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding the Court may award to the defendant costs against the plaintiff. Section 2 repealed all the sections in the various Acts which provided that notice of action must be given before action was brought. Therefore, after 1893 the only question in England would be whether the public servant was given sufficient opportunity to tender amends and also whether the action had been commenced within six months of the acts complained of. The failure to afford opportunity to make amends would not entail the dismissal of the suit as in the case of failure to give notice, but may result in the plaintiff being mulcted in costs even if he succeeds in the action. This was the state of the law when the new Civil Procedure Code was enacted in this country. If I may say so with respect, the precedent set by the Parliament in repealing provisions for notice and in enacting a uniform rule of limitation might well have been adopted in this country. But that has not been done. We have various local Acts in which a shorter period of limitation is prescribed in respect of acts done under colour of a Statute, and we have also the general Procedure Code which makes it a condition precedent to an action against a public servant that he should have notice. Therefore, the English decisions subsequent to 1893 can afford no assistance in the construction of Section 80 of the Civil Procedure Code. The earlier decisions are all quoted in Bullen and Leake s Precedents of Pleadings (7th Edition) at page 81

4. The established rule seems to be to the effect that the public officer is entitled to the statutory privilege of notice only where he had grounds for believing, and bona fide believed, in the existence of facts which, if existing, would have justified him in doing the acts complained of under the Statute or in the execution of his office." In Downing v. Capel (1867) 2 C.P. 461 : 36 L.J.M.C. 97 : 16 L.T. 323 : 15 W.R. 745 the learned Judges held that unless the wrong doer believed he was acting in pursuance of the Statute he was not entitled to notice. In Selmes v. Judge (1871) 6 Q.B. 724 Blackburn, J., says: "I agree that if a person knows that he has not under a Statute authority to do a certain thing and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out the Statute." Lush, J., said, it is clear that they bona fide believed they were doing what the law allowed, and that is all that is needed to entitle them to the protection of the Statute." Hannan, J., said: "The question is: did the defendants bona fide intend to make a rate as surveyors of highways If they did, they were entitled to notice of action." Although this judgment of the learned Judges does not express it in so many words, it seems clear from it that if a public servant acted with a malicious intent, he would not be entitled to any notice. [See also Norris v. Smith (1839) 10 Ad. & Ell. 188 : 2 P & D. 353 : 8 L.J.Q.B. 274 : 113 E.R. 72 : 50 R.R. 374 and Agnew v. Jobson (1877) 13 Cox, C.C. 625 : 47 L.J.M.C. 67.]

[10] The result of the above discussion may be stated thus:

(a) In England notice of action after 1893 is immaterial. All that is required is that sufficient opportunity should be given to the public servant to make amends. Failure in this behalf will not entail the dismissal of the suit, but will render the successful plaintiff liable to pay the costs of the public servant.

(b) Before the Act of 1893 the public servant would not have been entitled to notice if he exceeded the powers given to him by the Statute.

(c) He would not have been entitled to notice unless he believed he was acting within the Statute although he was not justified in so acting.

(d) He would have been entitled to notice in all cases where he acted bona fide although he was mistaken in his view of the law which authorised him to do the act.

(e) Lastly, any semblance of acting within the Statute would be enough.

[11] In India the preponderance of authority is in favour of holding that unless the public servant acted bona fide he is not entitled to notice. Most of the judgments which have taken this view were by single Judges. Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058 holds that the question of bona fides is not a matter for consideration on the question of notice. In Bombay, Justice Chandavarkar, at any rate, seems to take the same view. But it must be conceded that there is not a single case in which it has been held that notice is necessary where it was found that the defendant acted maliciously. There is no such case in the English Reports or in the Indian Law Reports. When the Legislature re-enacted Section 424 of the old Code in the Act of 1908, it did not think it desirable to reconcile the conflicting views held on this question. On principle it seems to me that to hold that notice should be given only where bona fides have been established would be to leave it to the discretion of the plaintiff whether he should give notice or not. It may be suggested in answer to this, that if the allegation as to mala fides is not proved the suit might be dismissed. But it would certainly lead to an enquiry into the merits before the question of notice is considered.

[12] In this state of authorities and having regard to the importance of the question, I propose to refer the following question for the consideration of the Full Bench:

Where a public officer in the discharge of his duties acts mala fide, whether he is not entitled to notice before action under Section 80 of the Act V of 1908.

Napier, J.

[13] The question raised in this second appeal is whether the defendant is entitled to notice under Section 80 of the Civil Procedure Code, no notice having been given. The suit was one against a Village Munsif, the cause of action alleged being that the defendant fraudulently attached certain casuarina wood and sold the same in a clandestine manner, although it had been already attached by the plaintiffs. The facts found by the Appellate Court are that certain casuarina wood belonging to a third party, a judgment-debtor, had been attached in Original Suit No. 387 of 1911 by the plaintiffs, that the Village Munsif sold the wood for arrears of revenue due, that there was some irregularity in the sale, that there was no necessity to sell the whole quantity and that after selling the wood the Village Munsif handed over the balance of purchase-money to the judgment-debtor, although he had knowledge of the attachment.

[14] He sums up his view of the case as follows: The first defendant attached excessively all the wood belonging to the judgment-debtor so as to get it sold for revenue dues and handed over the balance secretly to the debtor for the purpose of getting rid of the two Court attachments, all of which was in abuse of his powers as Village Munsif. Section 80 is as follows:

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 after notice in writing has been delivered to him stating the cause of action and the relief which is claimed.

[15] This section was 424 in the old Code, the only important alteration being the substitution of the words any act for an act. The finding of the lower Appellate Court is clear that the Munsif was acting in his official capacity when he sold the wood, and as the selling is alleged as part of the cause of action, it is to my mind immaterial whether the subsequent paying over of the balance was done in an official capacity or not.

[16] It is not disputed that revenue was due and the finding of the Court is dear that it is in the excessive attachment of all the wood, that part at all events of the abuse of his powers occurred. On the plain words of the section, it would seem clear that notice was required. But it is suggested that there is strong authority for the proposition that where the officer acts maliciously, no notice is required. In examining the cases it seems to me necessary to eliminate those in which it was found that the officer was only pretending to act in an official capacity he having no right to do the act in connection with which the complaint arose at all. There remain two classes: (1) where he has purported to act in his official capacity but has been guilty of malice in the exercise of his powers, and (2) cases in which he has caused some wrong inadvertently in the discharge of his duty. In Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 it was held by Cunningham, J., sitting on the Original Side, that the cases in which notice is necessary are invariably cases in which a public officer is sued for damages for some wrong in advertently committed by him in the discharge of his duties. The case was, however, one in which the plaintiff claimed to be entitled to a share in a certain trust fund, of which the Official Trustee of Bengal was the trustee, and the decision was that no notice was necessary. The point did not arise for decision, and could not on the facts, whether, if he had acted maliciously, he would have been entitled to notice. The obiter dictum in this case was expressly negatived in a decision of a Bench of the same Court reported as Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058. There the plaintiff sued a District Magistrate for damages for illegal and malicious arrest under a warrant. The point was taken that as the act was said to be done maliciously Section 424 did not apply, and reliance was placed on the decision above referred to. The Court pointed out that the question did not arise in that case and stated the law as follows: The section does not seem to us to warrant the drawing of any distinction between acts of this kind done inadvertently or otherwise." In a later case reported as Ganoda Sundary Chaudhurani v. Nalini Ranjan Raha 1 Ind. Cas. 514 : 36 C.28 : 12 C.W.N. 1065, Woodroffe, J., sitting on the Original Side held that where a public officer took possession of property which he had no authority to seize and was sued for trespass, the suit is not against him in his official capacity, but as a private individual, and, therefore, no notice is necessary. This case although relied on by the appellant has, in my opinion, no bearing on the Question, it being of the class first referred to, namely, those where the officer is not discharging a duty. The next case was a decision of Fletcher, J., on the Original Side of the High Court, in which be held that a suit against a District Magistrate and two officers of Police for conspiracy and malicious arrest and search was one in which the public officer was sued in respect of an act done in bad faith, and, therefore, no notice under Section 80 was required. He relied on the obiter dictum in Shahebzadee Shahunshah Begum v. Fergusson C. 499 : 3 Ind. Dec. (N.S.) 871 and also on a decision reported as Raghubans Sahai v. Phool Kumari 32 C, 1130 at p. 1134 : 1 C.L.J. 54

2. The latter case has, in my opinion, no bearing on the question at all. It simply decides (hat where no relief is claimed against the Secretary of State no notice is required, as it would be impossible to serve a notice fulfilling the requirements of the section. He also relied on a case in Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241 to which I shall refer. The learned Judge does not appear to have been aware of the decision in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058, which was binding on him. His decision was subsequently reversed by the Court of Appeal on the merits and so no ruling was given on this point. So far as the High Court of Calcutta is concerned, the view that no notice is required where the public officer acts maliciously has been directly negatived.

[17] Four decisions of single Judges of the Allahabad High Court were referred to. The first is one of Bannerji, J., reported as Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 24

1. In that case the Court found that the defendant, a Police Officer, did not purport to act in good faith in pursuance of the law, but took advantage of his position as a Police Officer to commit illegal and tortious acts maliciously and without cause, the action complained of being that he searched the house of the plaintiff, dragged him to the Thana, detained and kept him in confinement for several hours. The learned Judge, following the decision in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 held that no notice was required. The next case is one decided by the same learned Judge and reported as Bakhtawar Mal v. Abdul Latif 29 A. 567; A.W.N. (1907) 170. That was a suit against a Police Officer to recover certain books seized by him in a search, the seizure of which was denied. The learned Judge held that notice was necessary and distinguished his prior decision as being one in which the defendant had acted not in his capacity as a public officer, but illegally and in bad faith. He based his decision on the ruling of the Calcutta Bench in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058. The third case is one reported as Mumtaz Husain v. A.E. Lewis 5 Ind. Cas. 467 [LQ/AllHC/1910/56] : 7A.L.J. 301, the suit being one for damages for assault, the allegation being that the plaintiff, a Sub-Overseer, was assaulted by his superior officer in a fit of anger. The Judge held that the acts complained of were not acts purporting to be done by the defendant in his official capacity. The fourth case is one reported as Bachicha Singh v. Jafar Beg 30 Ind. Cas. 173 [LQ/AllHC/1915/198] : 13 A.L.J. 788, and was a suit brought to recover damages against a Police Officer for malicious arrest. The learned Judge held that as the officer purported to act in his official capacity, notice was necessary. Putting aside the third of these cases as belonging to the first class, viz., cases where the act does not purport to have been done, we have two decisions of Banerji, J., which, with all respect, in my opinion, are not reconcilable; and another decision in which it was held that notice was required.

[18] Turning to Bombay, there are several decisions in which the section was construed, namely, cases reported as Bhau Balapa v. Nana 13 B. 348 : 13 Ind. Jur. 394 : 7 Ind. Dec. (N.S.) 228, Sardarsingji v. Ganpatsingji 14 B. 395 : 7 Ind. Dec. (N.S.) 724, Rajmal Manickchand Marwadi v. Anmant Anyaba 20 B. 697 : 10 Ind. Dec. (N.S.) 1033, Cecil Grey v. Cantonment Committee of Poona 7 Ind. Cas. 679 : 34 B. 583 : 12 Bom. L.R.615 and Chhaganlal Kishoredas v. Collector of Kaira 7 Ind. Cas. 993 [LQ/BomHC/1910/94] : 35 B. 42 : 12 Bom. L.R. 82

5. These, however, dealt with the questions whether notice is required in suits against public officers arising ex contractu and suits in which no tortious act was alleged but the public officer was a necessary party for the determination of the rights of the parties. The extreme view was taken in the last mentioned case, in which it was held that even though no tortious act was alleged against the Collector, still as he had been acting in his official capacity in declaring the plaintiff s mortgages illegal in exercise of the power conferred upon him by Section 3 of the Bombay Act V of 1862, which declaration had enabled the mortgagors to take possession of the land, notice was necessary. The Court lays down that the true test of an action for the purpose of Section 424 is, whether the wrong complained of as having been done by the public officer sued amounts to a distinct act on his part and whether that act purported to have been done by him in his official capacity. This, it may be pointed out, is the test applied by the only decision of a Bench in Calcutta, viz., Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058.

[19] Turning to the Madras Cases, Anantharaman v. Ramasami 11 M. 317 : 4 Ind. Dec. (N.S.) 220 was a suit to recover money due on a promissory note from a minor under the Court of Wards. The Collector, being a party as guardian ad litem, pleaded that he was entitled to notice. The Court simply stated that no notice is required unless the suit is brought against a public officer in respect of an act done by him purporting to be in discharge of his duty, and that clearly this suit was not of that class. There is, however, one decision, Second Appeal No. 1545 of 1901, which directly decides the point. That was a suit against a Karnam for damages for malicious prosecution. The Karnam had sold certain trees by public auction which were purchased by the plaintiff and out by him. The defendant reported to the Tahsildar that the plaintiff had cut down more trees than he had purchased and put in a complaint against the plaintiff. The Magistrate tried the case and found that the defendant s story was false. The plaintiff brought this suit, and the issues framed were whether the defendant prosecuted the plaintiff maliciously and without reasonable and probable cause, and whether the suit was not maintainable without notice. It was found by the District Munsif that the defendant was actuated with vindictive spirit and personal motives and did not act bona fide. The District Judge returned no finding on the 1st issue, but found that the acts complained of were done in his official capacity, and that, therefore, notice was necessary. In second appeal it was urged that no notice was necessary and the Bench held that the decision of the District Judge was right.

[20] There are in all the Courts a large number of decisions on other Statutes where the words purporting to act and official capacity are construed. I have not thought it necessary to deal with these because the finding of the lower Appellate Court is clear that the act was one purported to be done, etc., and the only question raised before us was whether malicious action took the case out of the section.

[21] Our attention has been drawn to several English cases in which the words act done in pursuance of the Act have been construed for the purpose of ascertaining whether the suit had been brought within a certain time after the act committed. But for the same reasons that I have not thought it necessary to examine the Indian cases other than those on this particular section, I do not propose to deal with them.

[22] The result is that there is a distinct ruling that notice is necessary even where the action is malicious in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058 and another one in our own Court, and there is no decision of a Bench the other way. This being so, I see no reason why we should not give the construction to the language of the section which it naturally bears. I am, therefore, of opinion that this suit is bad for want of notice. But as my learned brother has doubts in the matter, I agree to the reference to a Full Beach in the terms suggested by him.

[23] This second appeal came up for hearing on the 5th March 1918, in pursuance of the above Order of Reference.

[24] The respondents Counsel was called on to argue first.

[25] Mr. T. Prakasam, for the Respondents, contended that notice under Section 80 of the Civil Procedure Code was unnecessary where the public officer acted mala fide. The word purporting means intending and not pretending. Notice was held not necessary in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871, Raghubans Sahai v. Phool Kumari 32 C, 1130 at p. 1134 : 1 C.L.J. 542, Peary Mohan Das v. Weston 13 Ind. Cas. 721 [LQ/CalHC/1911/401] : 16 C.W.N. 145 at p. 214;130 Cr. L.J.65, Ganoda Sundary Chaudhurani v. Nalini Ranjan Raha 1 Ind. Cas. 514 : 36 C.28 : 12 C.W.N. 1065, Collector of Bijnor v. Munuvar 3 A. 20 at p.23 : 2 Ind. Dec. (N.S.) 6 and Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241.

[26] The following English Statutes were referred to: Larceny Act, 24 & 25 Vic., C. 99, Section 33 : 24 Geo. II, C. 44, Section 1.

[27] A large number of English decisions were cited.

[28] Mr. T.V. Vencattama Aiyar (with him Mr. R. Rajagopala Aiyar), for the Appellants.--The words purporting to act mean professing to act. The only question is, whether the act was done by the officer in his official or private capacity. If in the former, he is entitled to notice of action. The object of the notice is to enable the officer to square up the matter before action and make amends. The question of bona fides is one of fact and is a kind of test to determine whether the officer did the act in his official capacity.

Opinion

Wallis, C.J.

[29] As observed by Seshagiri Aiyar, J., in his order of reference, the point for decision is whether in consequence of his want of bona fides the first defendant forfeited his right to notice before suit under Section 80 of the Code of Civil Procedure. Both the referring Judges were of opinion that the act done by the defendant came within the words "any act purporting to be done by such public officer in his official capacity." These words were introduced into Section 424 of the Code of 1877 by Act XII of 1879, and the corresponding Section 80 of the present Code was further amended by substituting "any" for "an" and "such public officer" for "him." According to the Concise Oxford Dictionary recently published at the Clarendon Press, to "purport" in this context means to "be intended to seem." There can be no doubt that the act of the Village Munsif in handing over the surplus proceeds of the revenue sale to the defaulting owner was an act "intended to seem" to be done by him in his official capacity so as to render notice of suit necessary, if effect is to be given to the language of the section according to the natural meaning of the words used. The Legislature may well have considered it desirable to require notice of suit to be given in all such cases, and I see no reason for putting a restrictive construction upon the section. It is significant that the words "purporting to be done" are wider than "done or intended to be done under the provisions of this Act" in Section 264 of the Public Health Act, which appear to be the most comprehensive words used in any of the corresponding statutory provisions in England, seeing that they also include "acts intended to seem to be done in his official capacity;" and it is quite probable that they were chosen on that very ground and for the purpose of making the English decisions inapplicable. As observed in Booth v. Clive (1851) 10 C.B. 827 : 2 L.M. & P. 283 : 20 L.J.C.P. 151 : 15 Jur. 563 : 138 E.R. 327 : 84 R.R. 795 it is not very easy to reconcile all the observations that are to be found in the English cases, and they must be read with reference to the circumstances of each particular case. Further, the current of English decisions does not, in my opinion, support the view taken in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 that notice is only requisite in the case of inadvertent acts and cannot be required where there is a want of bona fides. On the contrary in Kirby v. Simpson (1854) 10 Ex. 358 : 2 C.L.R. 1286 : 23 L.J.M.C. 165 : 18 Jur. 983 : 102 R.R. 624 : 156 E.R. 482 it was expressly laid down by Parke, B., and the Court of Exchequer that a person may act maliciously and yet act in the execution of his office as a Justice of the Peace," and that in such a case notice must be given to him. Similarly in Royal Aqurium v. Parkinson (1892) 1 Q.B. 431 : 61 L.J.Q.B. 409 : 66 L.T. 513 : 40 W.R. 450 : 56 J.P. 404 in the Court of Appeal, where Kirby v. Simpson (1854) 10 Ex. 358 : 2 C.L.R. 1286 : 23 L.J.M.C. 165 : 18 Jur. 983 : 102 R.R. 624 : 156 E.R. 482 was cited for the appellants, it was not even contended on the other side that the finding of malice against the defendant disentitled him to notice if he was otherwise entitled to it. In the third and most authoritative edition of Bullen and Leake s Precedents of Pleadings, 1868, the learned authors sum up the effect of the decisions on the various English Statutes at page 759 as follows: A parson is entitled to notice of action as acting under or in pursuance of a Statute or in execution of his office, where he bona fide believes in the existence of facts which, if existing, would justify his acting in pursuance of the Statute or in execution of his office." In the present case there were facts justifying the Village Munsif in acting in his official capacity, and there was no occasion for him to resort to the defence that he bona fide, though erroneously, believed in the existence of such facts. In so far as Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 and the cases which follow it lay down that the section only applies to acts done inadvertently in the course of official duty, I am unable, with great respect, to follow them, as they appear to me to be inconsistent with the plain language of the section, unsupported by the English decisions on the more restricted provisions of the English Acts, and opposed to the later decision of the same Court in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058 and to the other decisions mentioned in the order of reference. My answer is that notice is necessary in the circumstances stated.

Sadasiva Aiyar, J.

[30] The verb "purport" is defined in he Concise Oxford Dictionary as convey, state, profess, be intended to seem"; and the Latin root signifies "carry forth." The synonym profess" has as two of its definitions pretend and openly declare .

[31] I, therefore, think that the expression "any act purporting to be done by such public officer in his official capacity" found in Section 80 of the Civil Procedure Code means "any act of a public officer which is intended by him to carry forth or convey to the minds of all persons who become aware of that act the impression that he did the act in his official capacity and not as an ordinary private individual and which has the effect of conveying such an impression by its seeming or appearance." The usual way in which such an intention is conveyed to the minds of others is by the officer openly declaring at or about the time of the doing of that act that he was acting in his official capacity, and by the "act" being in its nature such as is done by a person in such an official position and not by a mere private individual. In most cases, his conduct and declarations at or about the time of the doing of the act and the nature of the act would be conclusive as to their conveying to the minds of those who become cognisant of the act that it was done in his official capacity. An act done by a public officer would purport" to be an act done in his official capacity, not only if it was properly and rightly done by him in such capacity and within his powers, but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the acts and from the nature of his official powers and duties that it was done in his official capacity.

[32] But if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such an officer could allow him to do on the facts as represented and declared by such officer, his mere allegation that he did the act in his official capacity would not suffice.

[33] I shall, with diffidence, attempt two illustrations. I. A Sub-Registrar carries off by force his neighbour s plough-bullocks to plough the Sub-Registrar s own lands, making at the time the loudest declaration that he was acting as Sub-Registrar and was entitled as such officer to carry off his neighbour s plough-bullocks to cultivate his (the Sub-Registrar s) lands. As there is no resemblance whatever between the Sub-Registrar s duties and the ploughing of the Sub-Registrar s lands or the carrying off of his neighbour s cattle, I do not think that it could be said that his act purported" to be done in his official capacity whatever he might have professed. [The line of demarcation may of course become thin in many cases. In Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241 Banerji, J., held that a Sub-Inspector of Police who took advantage of his position as a Police Officer to wrongfully search the plaintiff s house, to keep him for some hours in a Thana and to publicly abuse him owing to his private enmity against the plaintiff could not be said to have purported to act in the discharge of his official duty and was, therefore, not entitled to notice under Section 424 of the old Civil Procedure Code corresponding to the present Section 80. I am doubtful about the soundness of this decision so far as it relates to the acts of house-search and confinement in the Thana though as regards the act of public abuse, the decision seems to be right as such public abuse is never the duty of a Police Officer.] II. My other illustration may be stated thus: A, a Police Inspector, was told by his friend B that B s stolen property was in O s house. A, to help his friend B, forges a magisterial warrant, goes to O s house, and makes a search in his official uniform declaring that he does so as a Police Officer on the strength of the magisterial warrant. As every ordinary on-looker will take it that A is making his search in his capacity as a Police Officer, I think that his act was one purporting to be done in his official capacity, and he is entitled to notice if sued for such an act. See Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058 (Macpherson and Ameer Ali, JJ.) and Jugul Kishore v. Jugal Kishore 10 Ind. Cas. 1 : 33 A. 540: 8 A.L.J. 509 though this latter case turned upon Section 49 of the Allahabad Municipalities Act (which, however, uses the same expression "purporting to be done" as Section 80 of the Civil Procedure Code.)

[34] The English decisions construing expressions like "done in pursuance of" or "done under the authority of" or "an act in execution of a public office" or "done in execution or intended execution of his office" and so on are not only of very little use but only tend in my opinion to confuse the mind in the interpretation of the expression "purported to be done" used in Section 80 of the Civil Procedure Code.

[35] In the present case, the appellant s act in paying over the balance of the revenue sale proceeds to the defaulter was an act falling within the ordinary duties of his office as Village Munsif and he clearly professed to do it in execution of that duty, and it would be quite reasonable on the part of an ordinary third person, who becomes aware of the Village Munsif s act in so returning the balance to the defaulter, to receive the impression that the act was done by the Village Munsif in his official capacity.

[36] I think the question of the good faith or the bad faith of the public officer, either as regards his belief in the legality or propriety of his act or the limit of his powers or the existence of facts justifying the exercise of such powers, is irrelevant in the consideration of the question whether the officer is entitled to notice under Section 80 of the Civil Procedure Code.

[37] I, therefore, agree with my Lord in the answer given to the reference.

Spencer, J.

[38] I agree with the two judgments just pronounced and with the opinion of the Calcutta High Court in Jogendra Nath Roy Bahadur v. Price 24 C. 584 : 12 Ind. Dec. (N.S.) 1058, that whether the Police Officer s act complained of is legal or illegal, deliberate or inadvertent, notice under Section 80, Civil Procedure Code, is necessary before a suit is instituted. I think, with due respect, that the decisions of the single Judges in Shahebzadee Shahunshah Begum v. Fergusson 7 C. 499 : 3 Ind. Dec. (N.S.) 871 and Muhammad Saddiq Ahmad v. Panna Lal 26 A. 220; A.W.N. (1903) 241 were wrong.

[39] We have been asked to construe the words any act purporting to be done by Such public officer in his official capacity" as signifying any act done by such public officer in the honest belief that he was acting in his official capacity."

[40] Purporting "literally means holding out," and neither "profess nor pretend" is an exact synonym for it. Profess," as its derivation suggests, generally implies an open declaration in words. Pretend more often than not, is used where that which is held out is not what it really is. I think that the word purporting" covers a profession by acts or by words or by appearance of what is true as well as of what is not true.

[41] A private individual who personated a Police Officer by wearing a Police uniform

and carrying a forged search warrant proceeded to search a house, would be "purporting" to act as a Police Officer, though not being a Police Officer, he would not be entitled to notice under this section. A real Police Officer who acted similarly would equally be doing an act purporting to be done in his official capacity," and would be entitled to notice, even though his motives were malicious.

[42] When it is the intention of Government to protect official and judicial acts done by public servants in good faith, the Legislature makes use of the words good faith", as may be seen from Sections 76 to 79 and 99 of the Indian Penal Code, Section 156, Clause 4, of the Local Boards Act and Section 1 of the Judicial Officers Protection Act. But in Section 80, Civil Procedure Code, there is no qualification that the act must be one done in good faith to entitle the officer concerned to notice. In practice it would not always be easy at the stage of issuing notice to determine whether good faith existed before that question had been decided at the trial. Government undertakes the defence of their servants in actions brought against them personally for official acts done by them in cases where those acts are deemed defensible. The issue of notice gives time to the public officer to make amends for his act or to report the case to Government and get himself defended at the public cost. So notice is made compulsory in all suits against public servants for acts done officially.

[43] A number of English cases have been cited in the arguments and Mr. Justice Seshagiri Aiyar has referred to some of them in his Order of Reference. I find that little assistance is to be derived from them, as they are all pronouncements as to the meaning of the language used in particular English Statutes, which is not identical with the language of the Civil Procedure Code which we have to consider.