Alfred Henry Lionel Leach, C.J.
1. The plaintiff sued the Official Assignee as representing the estate of one Janaki Ammal to recover the sum of Rs. 738-8-0 with interest which he had paid to him on the 9th September, 1931. He averred that circumstances had arisen since the payment was made which entitled him in law to recover this amount. It is necessary in order to understand the position to go into the early history of this matter.
2. In 1900 a piece of immovable property in Madras was purchased in the names of the plaintiff's father (one Duiraiswami) and Janaki for a sum of Rs. 200. The plaintiff's father was the brother of Janaki's husband. Duraiswami having died, the plaintiff instituted in the City Civil Court, Suit No. 437 of 1927, for partition of this property and for recovery of the half share which he said he was entitled to as his father's heir. Janaki defended the suit. She claimed that she was entitled to the whole of the property and alleged that her husband was the purchaser of the property having bought it in her name and in Duraiswami's name benami. This question was not fought out, and on the 10th February, 1928, the parties came to terms. A compromise decree was then passed in accordance with the arrangement arrived at. Under this decree the plaintiff was to pay Rs. 700 to Janaki for her interest in the property which she was required to quit on the 1st March, 1928. Janaki had, in fact, mortgaged this property to one Dhanalakshmi in 1926 and had purported to charge the whole of it. She kept this fact from the plaintiff who agreed to the terms above mentioned in entire ignorance of the fact that there was this mortgage in favour of Dhanalakshmi. Janaki delivered possession of the property to the plaintiff by the due date and on the 20th September, 1928, the plaintiff paid Rs. 700 into Court. But as he had in the meantime discovered that the property had been mortgaged to Dhanalakshmi, he asked the Court to prohibit Janaki from withdrawing the money from the Court until further orders. This application was granted.
3. On the 19th August, 1929, the plaintiff instituted Suit No. 424 of 1929 in the City Civil Court impleading both Janaki and Dhanalakshmi. He asked for a declaration that the mortgage was invalid. Janaki took no part in this suit. The judgment was delivered on the 26th August, 1930, the Court holding that the mortgage was good to the extent of Janaki's share, and as the plaintiff had no objection to taking that share subject to the mortgage there was a decree on this basis. Dhanalakshmi was also agreeable to her mortgage being limited to Janaki's moiety. In spite of having accepted this position Dhanalakshmi resiled from it and filed an appeal to this Court. In this appeal she contended that she was entitled to a charge on the whole of the property and refused to recognise the position of the plaintiff. It is not surprising in view of what had happened in the trial Court that this contention did not prevail, the appeal being dismissed on the 2nd September, 1932. On the 10th April, 1931, a petition was filed for an order of adjudication in insolvency against Janaki and she was adjudicated on the 27th of that month. On the 9th April, 1931, the plaintiff had withdrawn from the Court the Rs. 700 which he had paid under the consent decree passed in Suit No. 437 of 1927. The next day the Official Assignee wrote informing him that he proposed to move the Court for an order directing him to bring the money into Court. The reply was that as Dhanalakshmi was entitled to a mortgage decree on a moiety of the property he was entitled to recover the Rs. 700 plus interest, and he wanted the Official Assignee to give him an indemnity against any claim being made by Dhanalakshmi. The Official Assignee by letter dated the 31st August, 1931, refused to give the indemnity but by the 9th September, 1931, the plaintiff and the Official Assignee had come to terms. On that date a deed of release was executed by the Official Assignee in favour of the plaintiff in respect of Janaki's half share in the property and the plaintiff paid to the Official Assignee the sum of Rs. 738-8-0. It is necessary to refer to a covenant in this document as the plaintiff contends that the Official Assignee did in fact indemnify him in respect of any claim by Dhanalakshmi. This covenant reads as follows:
The releasee is at perfect liberty to enjoy the property without any let, hindrance or claim on the part of the said Janaki Ammal, the insolvent, or any one claiming under the said Janaki Ammal.
4. The plaintiff says that Dhanalakshmi's claim under her mortgage was a claim which in law was made under Janaki. On the 11th August, 1931, that is, a month prior to this release deed Dhanalakshmi instituted proceedings in execution of her mortgage decree. On that date she applied for leave to bid at the auction. The learned Judge before whom the application came held that there was no need for any sale at all in view of the Official Assignee having executed the release. He forgot, of course, the position of Dhanalakshmi in the matter. He accordingly passed an order dismissing her application for sale. An application by way of revision petition to this Court followed and the order dismissing the application for sale was set aside and the sale application restored to the file. The execution proceedings subsequently took their normal course and the half share was purchased by a third party for over Rs. 1,000. That was on the 6th March, 1933.
5. The position, therefore, was this : The plaintiff had paid to the Official Assignee Rs. 738-8-0 in consideration of the Official Assignee releasing to him Janaki's interest in the property and he got nothing for it, because the property had got into the hands of a third party as the result of the execution proceedings. Accordingly on the 2nd May, 1932, the plaintiff filed suit No. 406 of 1932 in the City Civil Court against the Official Assignee in order to recover the Rs. 738-8-0. The basis of this suit was that the release had no legal effect and, therefore, was null and void. In these circumstances he said that he was entitled to a refund of the money. Judgment was given in this suit on the 12th May, 1933, the Court holding that the plaintiff was not entitled to recover because he made the payment with his eyes open. He knew all about Dhanalakshmi's mortgage and he had taken the release for what it was worth at his own risk. It contained no covenant for indemnity and no cause of action was therefore shown in the plaint. This view was upheld by this Court on appeal on 3rd August, 1934. The learned Judges were of opinion that the payment made by the plaintiff to the Official Assignee was one of a purely voluntary nature. Then followed the suit out of which the present appeal arises. Here the plaintiff claimed that he was entitled to recover the Rs. 738-8-0 plus interest, on the ground that the Official Assignee had granted to him a good title in respect of Janaki's half share, but he had lost that half share and, therefore, the Official Assignee was liable to him in damages. The learned trial Judge held that the plaintiff was entitled to succeed on this basis and granted him a decree for the amount claimed.
6. The Official Assignee challenges the correctness of this decree on three grounds : (i) that the plaintiff was precluded by the doctrine of res judicata from instituting the suit; (ii) that no notice had been given by the plaintiff under Section 80 of the Code of Civil Procedure, and therefore the suit had not been correctly launched; and (iii) that the learned trial Judge had wrongly awarded interest to the plaintiff.
7. There is no substance in the plea that suit No. 406 of 1932 stands as a bar to the present suit. As I have already indicated that suit was filed on the basis that the deed of release was of no legal effect. The suit out of which this appeal arises is based on the plea that the document is a valid document and that the plaintiff is entitled to damages for the breach of a covenant contained in it. The causes of action in the two suits are entirely different. The doctrine of res judicata can have no application in such circumstances.
8. Turning now to the second contention of the learned Advocate for the appellant, Section 80 of the Code of Civil Procedure provides that 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 of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. The section also states that the plaint shall contain a statement that such notice has been so delivered. For the purpose of dealing with this argument we will take it that the correspondence which passed prior to suit did not give the notice required by this section, and it is common ground that the Official Assignee is a ' public officer' within the meaning of the section.
9. In the course of the arguments we were referred to a number of cases decided by the Calcutta High Court and by the Bombay High Court. The Calcutta High Court has for many years taken the view that this section applies to cases founded on contract as well as to cases in tort. The Bombay view has been that the section only applies to action founded on tort.
10. But the position has been clarified by a recent decision of their Lordships of the Privy Council in Revati Mohan Das v. Jatindra Mohan Ghosh (1934) 66 M.L.J. 506 : L.R. 61 IndAp 171 : I.L.R. 61 Cal. 470 (P.C.) and it is now settled that the section covers cases both in contract and in tort. This decision also shows that in the present case the Official Assignee in executing the deed of release was not doing an act in his official capacity. Further the suit is not against him in respect of any act done by him in that capacity.
11. In the case mentioned above, a common manager of an estate appointed under the Bengal Tenancy Act, 1885, executed with the sanction of the Court a mortgage which provided for repayment of the debt on a specified date. Before that date he died and another manager was appointed. The debt not having been paid, the mortgagee, without giving notice, sued the new manager to enforce the mortgage. Their Lordships held that notice was not necessary under Section 80 because assuming that a common manager is a public officer the suit was not for an act purporting to be done in his official capacity. Failure to pay the debt when due was not an 'illegal omission' so as to be an 'act'. Sir George Lowndes delivered the judgment and at page 475 of the report he observes:
It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity. The mortgage imposed no personal liability upon the manager, but merely provided that, if payment was not made, the mortgagee would be entitled to realize his dues by sale through the Court, and this was all that the appellant sought by his suit. The manager for the time being no doubt had an option to pay in order to save the sale, but failure to exercise an option is not in any sense a breach of duty. The appellant made no claim against the first respondent personally. He was there only as representing the estate of which the sale was sought. In their Lordships' opinion, such a suit is not within the ambit of Section 80 and no notice of suit was required.
12. In the case before us the claim against the Official Assignee was not a claim against him personally, but a claim against him as representative of the estate of Janaki Ammal, and throughout the case he merely occupied the position as the representative of that estate. Therefore we hold that no notice was required to be given under Section 80 to the Official Assignee before the suit was instituted. Consequently we consider that it was properly launched.
13. The objection with regard to interest also fails. An examination of the judgment shows that the learned Judge did not award to the plaintiff any sum of money as interest. He awarded him the amount claimed on the ground that he had in fact lost property of that value and in doing so we consider he adopted the right attitude.
14. The appeal therefore fails and must be dismissed with costs. No orders in the Letters Patent Appeal.