Sulaiman, Ag. C.J.
1. This is a defendants' appeal arising out of a suit for damages for malicious arrest. The case has had rather a chequered history and it is necessary to recite the facts. The plaintiff alleged that the defendant who was a Sub-Inspector of Police cherished malice against him and arrested him wrongfully in excess of his authority and sent him to Agra handcuffed. The suit was brought within two years of the said arrest but more than 90 days after it. The defendant pleaded that he was acting in pursuance of his statutory duty and the claim was barred by limitation. He also denied that there was any malice on his part.
2. Mr. Banerji the Munsif who first heard the case framed issue 2 as follows:
Whether the defendant acted bona fide in the performance of his duties or the arrest of the plaintiff was illegal and malicious.
3. He found that the arrest was not malicious and the suit was not barred by limitation, but he pointed out certain circumstances which showed that the Sub-Inspector had some malicious feelings against the plaintiff.
4. On appeal Mr. Tandon came to the conclusion that malice had been established by the plaintiff. He did not record any clear finding as to whether the Sub-Inspector had, acted in excess of his statutory duty though there were observations which suggested that he had exercised his discretion with a malicious motive. The appellate Court agreed with the first Court on the question of limitation and therefore held that the suit was not barred by time. It remanded the case for the disposal of the remaining issues.
5. The defendant came up in appeal to the High Court and his appeal was summarily dismissed under Order 41, Rule 11 by a Bench of this Court. The Bench however thought that the question of law sought to be raised in the appeal would not arise until the facts had been clearly established. They accepted the finding that the act of the Sub-Inspector was malicious, but pointed out that however malicious it may be, if his conduct was in pursuance of an enactment in force at the time, the case would come within Article 2, Lim. Act and not Article 36. They thought that issue 2 as framed by the first Court had not been really decided by the appellate Court and as the case was going back for retrial on the remaining issues they re framed that issue in the following way:
Were the acts of the defendant done in pursuance of an enactment in force at the time, or were they done without any statutory authority.
6. They further pointed out that the answer to the question would decide the question of limitation also which, according to their view, was the sole point. As. the appeal was heard and disposed of under Order 41, Rule 11, Civil P.C. no notice had been issued to the plaintiff, who had up to that stage no opportunity to present his case before the Bench. Subsequently an application was made on his behalf, for expunging some of the observations quoted above from the judgment, but that was dismissed by the Bench on 9th May 1927 on the ground that it saw no reason to interfere.
7. In the meantime the trial Court had decreed the suit ex parte. An application for setting aside the ex parte decree was allowed by another Munsif who then heard the case and recorded his finding on the question of limitation afresh holding that Article 2 applied and the suit was barred by time. On appeal Mr. Bennet felt somewhat puzzled as to whether he was bound by the observations of the High Court made ex parte, but concluded that he was so bound. He then went into the question and came to the conclusion that although there was malice:
there is no doubt that the defendant had a bona fide belief that he had a legal right under statute to arrest the plaintiff and in fact he had Such a right.
8. He held that the suit was barred by Article 2, Lim 2, Act.
9. On appeal to this High Court a learned Judge of this Court came to the conclusion that the observations made in the judgment dismissing the appeal under Order 41, Rule 11 were wholly ineffective and they left the previous finding of Mr. Tandou untouched. The learned Judge thought that unless the decision of the lower appellate Court were set aside after a notice to the plaintiff-respondent that decision would be final and any observations that were made by the Banch ex parte were merely by way of advice to Judges generally and could not have any effect. He accordingly held that the finding of Mr. Tandon that the suit was not barred by limitation must be accepted. He called for a finding on the question of damages and then decreed the claim for Rs. 250.
10. On appeal under the Letters Patent it is now contended before us that when the High Court had left the question of limitation open, the Courts below were not precluded from reconsidering the matter and deciding that Article 2 applied. There is no doubt that the learned Judges interpreted the judgment of Mr. Tandon as not deciding the question of the illegality of the arrest. There was certainly no clear finding that the Sub-Inspector had acted in excess of his authority. It was thought that as the suit had been remanded for disposal of the remaining issues, the question as to whether the arrest was or was not illegal was yet to be tried. It was in that view that the Bench framed issue 2 in the form as quoted above. It was emphasized that one question in dispute between the parties was as to whether the act of the defendant had been done in pursuance of an enactment in force at the time or without any statutory authority. It was on this interpretation of the judgment of Mr. Tandon, that the Bench declined to issue notice to the plaintiff. Of course, ordinarily when a higher Court intends in any way to modify the order of remand of a lower appellate Court, it would not do so without first issuing notice to the opposite party and giving him an opportunity to put his case before that Court. The plaintiff felt aggrieved by these observations which were made at the ex parte hearing, but unfortunately for him he failed in his attempt to get those observations expunged.
11. It seems to us that whatever view one might take of the position as it stood after the pronouncement of the judgment of Mr. Tandon, if one were to act independently of the opinion expressed by the High Court Bench, it is now no doubt that the Bench interpreted the order in the way indicated above. The utmost the plaintiff can say is that there was an irregularity of procedure in directing the trial Court to decide issue 2 in the new form in which it was framed behind the plaintiff's back. It cannot be urged that the order of the High Court was ultra vires and without jurisdiction. The appeal had been properly filed against the plaintiff in this Court and he had been properly impleaded as a party. The omission at most was one of issuing notice to him to appear. That defect was to a certain extent cured by the subsequent opportunity which the plaintiff himself seized to put his case before the Bench. We have therefore come to the conclusion that we cannot treat the judgment delivered at the hearing of the appeal under Order 41, Rule 11 as wholly ineffective. The Courts below have acted in pursuance of that judgment and have tried the issue framed by the High Court.
12. On the merits we agree with the view expressed by the Bench. Mr. Tandon's finding merely amounted to holding that the Sub-Inspector was actuated by malice and that he had a grudge against the plaintiff. One may further infer that if he had an option to act in one of the three ways 'he preferred that option which was most harmful and humiliating to the plaintiff. But his finding fell short of holding that he had acted in excess of his statutory authority. On the other hand Mr. Bennet clearly found that the defendant had a bona fide belief that he had a legal right to act and that he had such legal authority. The offence with which the plaintiff was charged was one of dacoity. It was a cognizable offence and the police officer had power independently' of any subpoena that he had been sent to him to arrest the plaintiff under Section 54, Criminal P.C. particularly when the complainant was present there and was prepared to identify him. Nor do we think that the mere fact that the subpoena had been returned by the Sub-Inspector unexecutad would deprive him of his power to arrest the suspected person in case he founds him later. The learned advocate for the plaintiff has not been able to satisfy us that the act of the arrest or even of the handcuffing of a suspected dacoit was outside the statutory authority conferred upon a police officer. In this view we must accept the finding of Mr. Bennet that the suit was governed by Article 2, Lim. Act, which is the special article applicable to such cases and not the residuary Article 36.
13. We may further point out that it is the duty of the Court under Section 3 to see that a suit is not barred by limitation. A general finding that a suit is not barred by limitation, may become inconclusive if on the finding of further factsut is discovered that some other article is applicable which bars it.
14. At the same time it must be pointed out that in the two Courts below both the question of malice and the question of limitation were agitated. The finding, on the question of malice was against the defendant and that on the question of limitation was in his favour. In the High Court the question of law alone arose which is now finally decided in favour of the defendant.
15. We accordingly allow this appeal and setting aside the decree of the learned Judges of this Court dismiss the plaintiff's suit. We direct that the parties should bear their own costs in both the Courts below in all proceedings, but that the defendant would have his costs from the plaintiff in the High Court.