John Wallis, C.J.
1. 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 oh that very ground and for the purpose of making the English decisions inapplicable. As observed in Booth v. Clive (1851) 10 Com. Bench. 827 : 138 E.R 827 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 I.L.R. (1881) C. 499 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 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 Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 Q.B. 431 in the Court of appeal, where Kirby v. Simpson 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 p. 759 as follows: 'A person 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 I.L.R. (1881) C. 499 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 I.L.R (1897) Cal. 584 and to the other decisions mentioned in the Order of lieference. My answer is that notice is necessary in the circumstances stated.
Sadasiva Aiyar, J.
2. The verb ' purport ' is defined in the 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.'
3. 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.
4. 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.
5. I shall, with diffidence, attempt two illustrations 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 Saddid Ahmad v. Panna Lal I.L.R, (1903) All. 220 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 housesearch 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 C's house. A, to help his friend B., forges a magisterial warrant, goes to C'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 I.L.R. (1897) Cal. 584 (Macpherson and Ameer Ali, JJ.) and Jugal Kishore v. Jugal Kishore I.L.R. (1911) All. 54 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).
6. 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.
7. 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.
8. 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.
9. I therefore agree with my Lord in the answer given to the reference.
10. I agree with the two judgments just pronounced and with the opinion of the Calcutta High Court in Jogendra Nath Roy Bahadur v. Price I.L.R. (1897) . Ca1. 584 that whether the Public 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 Shahibzadee Shahunshah Begum v. Fergusson I.L.R (1881) Cal. 493 and Muhammad Saddiq Ahmad v. Panna Lal I.L.R. (1903) All. 220 were wrong.
11. 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.' '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.
12. 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.
13. 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 Officer's 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.
14. 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.