P.N. Mookerjee, J.
1. This litigation has a long history behind it, but the history must be told in order that the point, now in dispute, may be properly appreciated. We shall, however, make every endeavour to put the story, --the story of facts, -- within as brief a compass as possible.
2. In or about the year 1923, one Durgaprosad Chamaria brought a suit which was eventually registered as Title Suit No. 61 of 1923 of the court of the Additional Subordinate Judge of Howrah against three persons, namely, Radhaprosad Chamaria, Moti-lal Chamaria and Anardeyi Sethani, since deceased. The suit was for inter alia specific performance of a certain agreement for sale of immovable properties and it was eventually decreed on compromise on April 19, 1926. Under the compromise decree the defendants Radhaprosad and Motilal, who are plaintiffs Nos. 2 and 3 in the present suit and Sm. Anardeyi (whose executor and legal representative Sew Kissen-das Shatter is plaintiff No. 1 here) were to pay to the decree-holder Durgaprosad a sum of Rs. 8,61,000/-and several other sums in certain instalments. Payments were made from time to time, but some of these were not certified by the decree-holder and the judgment-debtors' attempt to have these uncertified payments recorded as certified failed except with regard to three of them. Eventually, a sum of Rs. 3,32,372-10-0 remained due under the decree with interest as provided therein.
3. On March 14, 1933, Durgaprosad's son Keshardeo, who had been given in adoption to another branch of the Chamaria family, brought a suit against his natural father Durgaprasad for recovery of certain monies and, three days later, on March 17, 1933, the said suit was compromised between the said parties whereby the above decree of Title Suit No. 61 of 1923 (the outstanding dues whereunder, at the time, were as stated above, a sum of Rs. 3,32,372-10-0 with interest) was assigned to Kesherdeo.
4. On April 1, 1933, the Certificate Officer of Howrah attached the aforesaid decree of Title Suit 61 of 1923 in execution of a certificate against Durgaprasad for arrears of income-tax, amounting to Rs. 3,86,000/-. The attachment was made in Certificate Case No. 1-M of 1933-34 under Section 19 (1) of the Public Demands Recovery Act. On April 28, 1933, Kesherdeo filed a claim before the Certificate Officer objecting to the above attachment 'upon the' ground, inter alia, that the decree attached had been assigned to him by Durgaprosad before the disputed attachment. This claim was rejected by the Certificate Officer on February 24, 1934.
5. On March 17, 1934, the Secretary of State for India in Council, as the attaching decree-holder as aforesaid, put the above decree of Title Suit No. 61 of 1923 into execution. That gave rise to Title Execution Case No. 62 of 1934. Shortly thereafter, the judgment-debtors who were plaintiffs Nos. 2 and 3 and the predecessor of plaintiff No. 1 of the present suit, appear to have made an offer of payment of Rs. 1,60,000/- in full satisfaction, of the above decree and this offer, which was made on May 26, 1934, was accepted by the Certificate Officer on May 28, 1934, on condition that the payment of Rs. 1,60,000/-was to be made forthwith. The payment was duly made and it was accepted in part satisfaction of the dues in the Certificate Case No. 1-M of 1933-34.
6. On June 21, 1934, present plaintiffs Nos. 2 and 3 and the predecessor of plaintiff No. 1, who were the judgment-debtors of the decree of Title Suit No. 61 of 1923, applied for recording adjustment and full satisfaction of the same in the above Title Execution Case No. 62 of 1934 on the footing of their above payment of Rs. 1,60,000/- and that application was registered as Mis. Case No. 59 of 1934. The original decree-holder Durgaprosad Chamaria also filed an objection against the execution of the decree by the Secretary of State in the said Title Execution Case No. 62 of 1934, mentioned above. This was registered as Mis. Case No. 67 of 1934. The two Mis. Cases Nos. 59 and 67 of 1934 were heard together and, by a common judgment, delivered on January 28, 1935, the trial court disallowed Durgaprosad's objection but recorded adjustment and full satisfaction, as prayed for by the judgment-debtors in their Mis. Case No. 59 of 1934. Durgaprosad's appeal (F. M. A. No. 251 of 1935) against this decision, so far as Mis, Case No. 59 of 1934 was concerned, was allowed, but his other appeal (F. M. A. No. 252 of 1935) against the decision in his own Mis. Case No. 67 of 1934, was not even-tually pressed and it was dismissed. The judgment-debtors appealed to the Privy Council against this Court's above order, refusing their prayer for recording adjustment and full satisfaction, on June 3, 1940. The appeal was dismissed by the Privy Council, subject to one direction, namely, that the payment of Rs. 1,60,000/- should be certified and recorded under the terms of Order XXI Rule 2 of the Code of Civil Procedure, the direction being made 'without prejudice to the rights which any party may have in the matter on grounds to which their Lordships' attention has not been called'. On April 26, 1941, the payment of Rs. 1,60,000/-was noted as certified by the executing court, as prayed for by the judgment-debtors.
7. In the meantime events were moving fast at the other end. The assignee Keshardeo, whose claim had been rejected by the Certificate Officer on April 28, 1934, as aforesaid, filed Title Suit No. 111 of 1934 in the First Court of the Subordinate Judge of Howrah on December 5, 1934. The suit was filed apparently under Order XXI Rule 63 of the Code of Civil Procedure and therein prayers were made, inter alia, for a declaration that the assignment of the decree in Keshardeo's favour was valid and bona fide and the Secretary of State had no right to attach the same. The suit was decreed by the trial court on September 30, 1936, and that decree was eventually affirmed by this Court in F. A. No. 24 of 1937 on January 21, 1941. Soon after the trial court's decision, Keshardeo started execution of the assigned decree in Title Execution Case No. 68 of 1936. This application for execution was filed on October 10, 1930, and therein the claim was Rs. 4,20,693-8-9 piss and it was made up of the outstanding dues (Rs. 3,32,373-10-0) upto March 31, 1933, with further interest at the rate of 9 annas per cent per month compound as provided in the decree, and on the same date, namely, October 10, 1936, Keshardeo obtained an order for attachment of the above sum ef Rs. 1,60,000/-, lying with the Collector of Howrah. The attachment was duly made on or about December 12, 1936, but, in spite of several tagids by the court at the instance of the decree-holder Keshardeo, the money was not actually received from the Collector till July 4, 1941, during which period various proceedings were taken against Keshardeo's claim by the Secretary of State and also by the present plaintiff as judgment-debtors.
8. In Keshardeo's Execution Case No. 68 of 1936, the judgment-debtors filed an objection alleging that the decree had been satisfied and that Keshardeo-was a mere benamdar. That objection was registered as Mis. Case No. 25 of 1937. It was dismissed by the trial court on June 10, 1937, and the appeal from the decision which was registered as F. M. A. No. 75 of 1937 in this Court, after receipt of a further finding from the learned Subordinate Judge under this Court's order, dated July 17, 1940, was eventually dismissed on November 26, 1942. During the pendency of the above appeal, the judgment-debtor Sm. Anardeyi died on July 17, 1941, and the present plaintiff No. 1 came in her place and stead. A stay of further proceedings of Keshardeo's Execution Case No. 68 of 1936 was also granted by this Court in Civil Rule No. 1252 (M) of 1942 upon the judgment-debtors' depositing in the executing court a sum of Rs. 77,804-14-9 pies towards the decree. The deposit was made on 17th August, 1942.
9. Meanwhile the judgment-debtors had started another Mis. Case No. 31 of 1942, claiming that interest on the amount of Rs. 1,60,000/- which the Privy Council ultimately directed to be recorded as certified should cease on and from May 28, 1934. The executing court, however, did not accept that contention and held, by its order, dated September 11, 1942, that interest would cease only from October 10, 1936, when the money was attached. The judgment-debtors' appeal, (F. M. A. No. 233 of 1942), against this decision was dismissed by this Court, but the decree-holder Keshardeo's appeal, F. M. A. No. 242 of 1942, was allowed and, on June 22, 1943, this Court ordered that interest would cease only from July 4, 1941, when the money was actually received by the Civil Courts for being made over to Keshardeo. The ultimate result was that the judgment-debtors were made liable to Keshardeo for interest on the above sum of Rs. 1,60,000/- up to July 4, 1941 in other words, they got effective credit for this sum against the decree only on and from July 4, 1941, although they had actually made the payment to the Secretary of State on May 28, 1934. In the above circumstances, the present suit was instituted by the appellants on May 15, 1944, for, inter alia, a declaration that they
'are entitled to be indemnified by the defendant (Secretary of State) in respect of all liabilities, costs, losses, damages and expenses in respect of or in connection with or arising out of the execution of the said compromise decree, dated April 19, 1926',
and a decree for a sum of Rs. 2,29,178-4-3 pies on the following grounds (accounts), set out in Paragraph 26 of the plaint, namely,
'(a) Paid on 17th August, 1942, as stated hereinbefore. ..........
(b) Interest as per compromise decree on, the aforesaid sum of Rs. 77,804-14-9 from 17th August, 1942, to 26th February, 1944. ..........
(c) Interest as per compromise decree onRs. 1,60,000/- from 28th May, 1934, to 4th July, 1941........
(d) Interest as per compromise decree on the aforesaid sum of Rs. 98,584-13-0 from 5th July, 1941, to 26th February, 1944. .....
(e) Costs of litigations in connection with the said Title Execution Case No. 62 of 1934 including the Privy Council Appeal .....
(f) Costs of litigations in Title Execution Case No. 68 of 1936 and various appeals and proceedings in connection therewith .....
10. The suit was founded principally upon an alleged contract of indemnity, express or implied in the agreement, flowing from the Certificate Officer's acceptance of the judgment-debtors' offer of payment of Rs. 1,60,000/- in full satisfaction of the original compromise decree, dated April 19, 1926. At the hearing, the claim was also sought to be supported on the ground of tort and a decree was prayed for damages on that account. For our present purpose, it is not necessary to refer to the other minor grounds, urged before the learned Subordinate Judge in support of the claim. The learned Subordinate Judge held that there was no binding contract between the parties, -- in any event, no contract, enforceable in law, -- and there was not the least warrant for finding, either in law or in fact, any contract of indemnity, express or implied. He further held that there was no tort, committed by or attributable to the defendant Secretary of State; at any rate, no actionable tort had been proved against the said defendant. He, accordingly, dismissed the plaintiff's suit. From this decree of dismissal the present appeal has been preferred by the plaintiffs.
11. The appeal has been pressed only with regard to the claim of Rs. 98,584-13-0, mentioned in item No. (c) of paragraph 26 of the plaint, as set out hereinbefore, and representing the interest on the sum of Rs. 1,60,000/- (which was deposited by the plaintiffs in the Howrah Collectorate on May 28, 1.934) which the plaintiffs had to pay to the assignee decree-holder Keshardeo. Mr. Gupta has confined his appeal to that item of claim only and that also on the ground of tort alone. The case of contract has not been urged before us as, apart from other infirmities of the alleged contract, it is difficult to discover in it any contract of indemnity which was essential to support the plaintiffs' claim under that head. We would, therefore, confine our discussion Only to the appellants' claim for the above amount as founded on tort, or, in other words, to their said claim as made by way of damages for tort.
12. The appellants' arguments may now be conveniently set forth. The suggested links in the chain are as follows :
(i) that the attachment of the decree of Title Suit No. 61 of 1923 in the Certificate Case No. 1-M of 1933-34 Howrah, was unlawful;
(ii) that the Secretary of State's execution of the decree in Title Execution Case No. 62 of 1934 in pursuance of the above unlawful attachment was illegal execution;
(iii) that, under the threat of the above illegal execution, the plaintiffs as judgment-debtors were compelled to make the payment of Rs. 1,60,000/- to save their properties and the said money was unlawfully received and retained by the Secretary of State till July 4, 1941, which he had no right to do and which, in law, amounted to unlawful detention;
(iv) that, as a result of the above unlawful receipt and retention or detention of the amount, the plaintiffs had to pay the aforesaid interest (Rs. 98,584-13-0) to the rightlul claimant as eventually found, namely, the assignee decree-holder Keshardeo Chamaria and suffered loss to that extent; and
(v) that, accordingly, they are entitled to recover the said amount of Rs. 98,584-13-0 from the defendant Secretary of State as and by way of damages for the loss, suffered by them on account of the tortious act in the shape of wrongful or illegal detention of the money on the part of the said defendant. There were also allegations of default and neglect against the Secretary of State which, so far as this particular amount is concerned, appear to have been based on the Secretary of State's refusal or failure to deposit the sum of Rs. 1,60,000/- in court after its attachment in Title Execution Case No. 68 of 1936 in October 1936. The appellants also invoked equity in their favour.
13. The respondent Dominion (now Union) of India, now representing the Secretary of State, resisted the appellants' claim on the following grounds inter alia, namely,:
(a) that the case of tort was not pleaded in the plaint and should not have been allowed to be raised at the hearing by the trial court and should not have been entertained by that Court nor should this Court entertain it in this appeal;
(b) that the tort, if any, was committed by the Collector and the Government or the Secretary of State cannot be made responsible for it or answerable for damages on its account;
(c) that the Collector and so also the Income-tax Officer and the Certificate Officer were acting under statutory authority and the Government could not be made responsible for their acts';
(d) that the sum of Rs. 1,60,000/- was received and realised by judicial process, that is, by execution through court, and the judicial order of execution intervening, the damages claimed were too remote,--and not certainly the direct and proximate result of any act of the Government so as to be attributed to any tort on the part of the Government or the Secretary of State -- and, in the absence of malice or want of reasonable and probable cause, at any rate, no claim for damages would lie; and
(e) that, in the circumstances of this case, no actionable delay, default or neglect can be pleaded, at any rate none had been established or proved by the plaintiffs and that the payment of Rs. 1,60,000/-was voluntary and there was no demand for its return either to the plaintiffs themselves or to anybody else on their behalf, so as to support any case of detention of money, and the plaintiff's conduct throughout would also debar them from claiming any damage on the ground of tort or in equity as against the defendant respondent.
14. In the course of argument, various authorities were placed before us and the discussion covered a wide field. The substance of the matter, however, so far as the main point goes, may be tersely put as follows ;
15. The attachment in the certificate proceedings was unlawful as the decree attached, in view of the Court's decision which is now final and binding between all parties concerned, was, at the relevant lime, the property not of the certificate debtor but of the third party Keshadeo Chamaria. Consequently, the execution of the attached decree by the Secretary of State was illegal in the sense that he had no right to execute it. It also appears that the disputed payment was made by the plaintiffs as judgment-debtors after the Secretary of State had applied for such illegal execution. So much may be said in favour of the plaintiffs-appellants, but the stubborn fact remains that the payment was made before an order of execution had actually been passed or issued by the court and that execution was ordered only after notice to the plaintiffs who were the judgment-debtors and, in obtaining that order, the Secretary of State was not guilty of any fraud or wilful misrepresentation so as to be amenable to any charge of malice; nor can it be said, in the facts of this case, that the execution was applied for without reasonable and probable cause. In the circumstances, as we shall presently show, the damages which might have been occasioned to the plaintiffs or which the plaintiffs might have suffered by reason of the payment which they made or choose to make on May 28, 1934, were too remote to fix the Secretary of State with any liability therefor, and, on this ground alone, if not on any other, the appellants'. main argument would fail.
16. It seems to us further that, in the facts of this case, the appellants' payment of Rs. 1,60,000/-must be treated as voluntary payment and no damage can be claimed in respect thereof, particularly where the money was never demanded back by them and when they consistently and throughout practically the entire relevant period sided with the Secretary of State or supported his action in resisting or detaining the money as against the assignee decree-holder Keshardeo who was ultimately found entitled thereto so that it may not be available to him. This conduct on the appellants' part is also fatal to their claim on grounds of equity or on the ground of delay, default or negligence on the respondent's part. Such conduct it may be noted here, lasted almost till the institution of the present suit and even thereafter (vide Paragraph 22 of the plaint).
17. The inevitable conclusion would thus be that this appeal would fail and it is liable to be dismissed.
18. We proceed now to discuss in some detail the true legal position, arising upon the rival contentions of the respective parses, and how, in the light thereof, our above conclusion can be supported in the facts of the present case. In doing so, we shall state first the general principles of law, applying to claims of the present type, and then study their effect on the appellants' present claim.
19. The State's liability to be sued for its own acts or acts of its officers or subordinates in the discharge of their official duties has often been the subject of much discussion. These acts may be conveniently grouped under two general heads, namely (i) acts, done in pursuance of ventures which a private individual may as well undertake, lor example, mercantile operations and the luxe, and (ii) acts, done in the exercise of Governmental powers which cannot be lawfully done except under sovereign authority or delegation thereunder. Acts of the former class are plainly justiciable in the municipal courts of the country and the State is always answerable for their consequences and its primary and vicarious liability in respect of such acts is absolute in the sense that it is governed by the same principles as govern private individuals in similar matters. The, second class of acts fall under two distinct subheads, one comprising sovereign acts or acts of State, properly so-called, not professing or seeking to justify themselves under the municipal law, and the other, done or purported to be done under the sanction of some Municipal law or statute and in the exercise of powers, conferred thereby. Acts of State, properly so called, are never justiciable in Courts of Law or Municipal Courts of the country and the State is not answerable for them. There the immunity is absolute. Acts, done or purported to be done under the municipal law, do not enjoy the same immunity and, where they amount to unlawful detention of land, goods, chattels or money, belonging to the subject, the State is always liable for their consequences. For such acts again, that is, acts under his second sub-head which seek justification from municipal law but eventually turn out to be unlawful or legally unwarranted, the State will be liable, except when they are done by officers of the State in the exercise of some statutory powers, preferred upon them as such officers, or where they are done otherwise by its officers and the State has not ordered or ratified the doing of the same.
20. It is well-settled also that in tort a man is not answerable for damages which are too remote. The tort-feasor or the wrong-doer is liable only for the natural and probable consequences of his act, or, as it is usually called, the direct, immediate or proximate damages, resulting therefrom, and, although a third party intervention or the action of a third party does not necessarily break the chain of causation and make subsequent damage too remote', yet 'when there comes, in the chain, the act of a person who is bound by law to decide the matter judicially and independently, the consequences of his act are too remote from the original wrong which gave him a chance of deciding', vide Scrutton, L. J., in Harnett v. Bond, (1924) 2 KB 517 at p. 563 (A), citing Weld-Blundell v. Stephens, (1920) AC 958 (B) and Lock v. Ashton, (1848) 12 QB 871 (C), except in cases where the decision had to be made as a matter of course or where it is ex parte in the sense that the person, sought to be affected thereby, was not a parly to the proceeding in which the decision was given and, possibly also, where the decision was not final or binding, so far as the party sought to be affected thereby, was concerned. These exceptions, however, are in the nature of apparent exceptions which do not affect the rule. Further, for a payment, voluntarily made and never demanded back, no damage can be claimed either for detention or otherwise.
21. In India, the principles governing the State's liability to be sued in regard, to its acts vis-a-vis its subjects, were first authoritatively slated by the Court in their broad aspects in the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR App 1 D), usually known and cited as the P and O Case. This case was decided by the Supreme Court, Calcutta, about a century back but it is always been accepted as the leading case on the subject. It has no doubt been supplemented, from time to time by judicial pronouncements on particular matters or questions, not falling directly within the scope of its decision and so not directly covered by it, but the fundamental approach which the decision indicated to the problem or problems, arising in such cases, has almost always been universally approved and adapted. For determining the State's liability a distinction was drawn between its acts, done in the exercise of what are usually called sovereign powers or powers which cannot be lawfully exercised except by a Sovereign or a private individual, delegated by a Sovereign to exercise them, and acts, done in the conduct of undertakings which might be carried on by private individuals without having such powers, delegated to them. This distinction was necessary as the liabilities of the Government of India were; by the relevant statute . (Section 65 of the Government of India, Act, 1851) the same as those of the East India Company which, though not a Sovereign, had Sovereign powers and also engaged in private or commercial undertakings. This position has never changed (vide Section 32 of the Government of India Act, 1919, and Section 176 of the Government of India Article 1935; vide also Article 300 of the Constitution of India as the competent Supreme Legislature has never intervened to affect those liabilities; and the distinction, therefore, has always been carefully observed and acted upon by the Courts. The P and O Case (D) which was concerned with the question of the State's liability for damages for acts of a private nature, that is, acts done in the conduct of private or commercial undertakings, negatived the State's claim of immunity in such matters on grounds which were not available to a private citizen or subject. That has ever been the law and the doubts which were once expressed on the question of the State's liability for torts in such connection, as follows from the said decision, by Jenkins, C. J., in Shivabhajan Durgaprasad v. Secretary of State, ILR 28 Bom 314 (E), were dispelled by the Privy Council in the case of Secretary of State v. Moment, 40 Ind. App 48 (F), where their Lordships of the Judicial Committee expressly and, in sufficiently clear and emphatic terms, approved this part of the law as laid down by Sir Barnes Peacock. Strictly speaking, the question of the State's liability as to the other type of acts, namely, acts done or purported to be done in the exercise of Sovereign powers, did not arise for consideration in the P and O Case (D) and Sir Barries Peacock only made some general and incidental observations to stress the fundamental distinction in the position of the State in regard, to the above two classes of acts. Later on, the State's liability for acts done or purported to be dune in the exercise of governmental or Sovereign powers came up for consideration on a number of occasions before the different High Courts and a distinction was drawn between acts which are acts of State, in the strict sense of the term, that is, acts done or purported to be done in the exercise of Sovereign powers, not seeking justification under municipal law, and acts done by or on behalf of the State as the Sovereign authority under the sanction or purported sanction of some municipal law. In the former class of cases the immunity was always held to be absolute; in regard to the latter class of acts, the State was held liable only if the act was done under its orders or wan ratified by it or if there was unlawful detention of land, goods, chattels or money of the subject. When again the act was the act of a State officer under the sanction or purported sanction of some particular statute and in exercise of powers, conferred or purported to be conferred by it, the State was held not to be liable for its consequences, unless it appeared that it had authorised or ratified the act. For these propositions reference may be made to Secretary of State v. Hari Bhanji, ILR 5 Mad 273 (G), A. M. Ross v. Secretary of State, ILR 37 Mad 55: (AIR 1915 Mad 434) (H), Secretary of State v. A. Cookraft, ILR 39 Mad 351: (AIR 1915 Mad 993) (I) Secretary of State v. Srigobinda Chaudhuri : AIR1932Cal834 , Uday Chand Mahatab v. Province of Bengal, 51 Cal. WN 537 (K), citing with approval inter alia the case of Secretary of State v. Ramnath Bhatta : AIR1934Cal128 . The case of Nobin Chunder Dey v. Secretary of State, ILR 1 Cal 11 (M), appears to have stated the law too widely and it has not been viewed even by this Court with much approval (vide : AIR1932Cal834 . That case purported to transform certain observations of Sir Barnes Peacock in the P and O Case (D) (which could not rank higher than mere obiter dicta) into law, but, as we have already pointed out Sir Barnes Peacock did not mean or really purport to lay down -- the strict law, -- in the dicta quoted. He was only incidentally making those observations to stress the distinction between the two classes of acts, noted above, in the matter of the State's liabilities, and, if we may respectfully point out further, the authority of the supposed dicta and, necessarily also of ILR 1 Cal 11 (M), has been much shaken, nay, practically destroyed, by the recent pronouncement of Mukherjea, J., as he then was, in the case of Province of Bombay v. Khusaldas S. Advani, : 1SCR621 (vide also P. V. Rao v. Khushaldas S. Advani AIR 1949 Bom 277 at p. 288) (O), citing, amongst others, the case of Venkata Rao v. Secretary of State . The old Calcutta case of McInerny v. Secretary of State, ILR 38 Cal 797 (O) where Fletcher, J., merely followed ILR 1 Cal 11 (M), may also be easily explained in the light of the observations of Seshagiri Aiyar, J., in ILR 39 Mad 351 as p. 360: (AIR 1915 Mad 993 at pp. 997-98) (I), although the suggested test of profit may not be exhaustive or always decisive in the matter of determination of the character of the act. Reference may also be made in this connection to the recent decision of the Supreme Court in the case of State of Bihar v. Abdul Majid, : (1954)IILLJ678SC , where Mahajan, C. J., referring to Section 176(1) of the Government of India Act, 1935, stated as follows:
'The Crown in India was liable to be sued in respect of acts which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of Sovereign powers the Company was not and the Crown in India was not liable unless the act had been ordered or ratified by it.'
22. On the other question, namely, about remoteness of damages and the bearing of an intervening judicial decision on that question, the law is staled in general terms by Lord Justice Scrutton in the case of (1924) 2 KB 517 at p. 565 (A) and the relevant passage has already been quitted by us. Exceptions to this Rule arise where the decision had to be given as a matter of course (vide Bhupendra Nath Chatterjee v. Sm. Trinayani Debi, 48 Cal WN 348 at p. 354; (AIR 1944 Cal 289 at p. 295) (S), citing Kissorymohun Roy v. Hursook Dass, 17. Ind App 17) (PC) (T)) or where the person affected, was not a party to that decision (vide Joykalee Dassee v. Representative of Chandmalla, 9 Suth WR 133 (U) and Ramanathan Chetty v. Mira Saibo Marikar ; vide also : AIR1944Cal289 and, possibly also, where the decision was not final or binding, so far as the party, sought to be affected thereby, was concerned (vide 17 Ind App 17. (PC) (T)). These, however, as we have already said, are in the nature of apparent exceptions which do not affect the rule. Where again the case is not one of trespass in law, malice or want of reasonable and probable cause has to be proved, to affix the party with liability (vide Imperial Tobacco Co. v. Bonnan : AIR1928Cal1 ; vide also, the case already cited, namely, 48 Cal WN 348: (AIR 1944 Cal 289) (S)).
23. Having stated the relevant principles, we turn now to the facts of this case. It is clear from what we have stated above that, in view of the ultimate decision of the Title Suit (Title Suit No. 111 of 1934) in F. A. 24 of 1937 and the decision in Misc. Case No. 25 of 1937, as affirmed in F. M. A. No. 75 of 1937, the assignment of the decree in favour of Keshardeo Chamaria must be held to be valid and binding as against all parties concerned. The attachment of the decree in Certificate. Case No. 1M of 1933-34 must, therefore, be held unlawful and the attempted execution of that decree by the Secretary of State on the strength of the said unlawful attachment may be said to be illegal execution in the sense that the executing attaching decree-holder had no right to execute the decree. The execution, however, was not issued forthwith and the disputed amount was not seized in execution. What happened was that, execution having been applied for as aforesaid on March 17, 1934, the Court before ordering execution directed issue of notice upon the original decree-holder, Durpaprasad Chamaria, and also upon the present plaintiffs Nos. 2 and 3 and the predecessor of plaintiff No. 1 who were the judgment-debtors under the above decree, sought to be executed as aforesaid, apparently to show cause why the decree should not be executed or executed at the instance of the attaching decree-holder, the Secretary of State, fixing May 28, 1934, for orders. The requisite's, however, for service of notice were put in by the Secretary of State only on May 28, 1934, and thereupon the Court directed that notice be issued, fixing June 21, 1934, for return and order. Till then, it is perfectly clear, execution had not been issued by the Court and it would not and could not have been issued without hearing the judgment-debtors. The latter, however, apparently with a view to get rid of the decree by a lesser payment than what was recoverable under it in execution, approached the Certificate Officer in the meantime and offered him the sum of Rs. 1,60,000 in full satisfaction of the decretal claim of about Rs. 4,00,000 and this offer was. accepted by the Certificate Officer on condition of immediate payment of the said sum of Rs. 1,60,000 by the judgment-debtors. In the circumstances we cannot but regard this payment of Rs. 1,60,000 to the Certificate Officer or through him to the Secretary of State as anything but a voluntary payment as the judgment-debtors were under no compulsion at the time in any sense of the term to make any payment to the attaching decree-holder, the Secretary of State. Notices had been directed to be issued to them before issue of execution and they had ample opportunity to object to the execution by the Secretary of State if they had so liked. Instead, they made tile payment as aforesaid in the Certificate Case and actually applied on June 21, 1934, before the executing Court for recording adjustment and full satisfaction of the decree by reason of the said payment. That application, as we have seen above, was eventually disallowed, but the Privy Council directed part satisfaction to be entered against the decree to the extent of the above amount, namely, Rs. 1,60,000, with or subject to the specific direction or reservation, to which attention has already been drawn. This was on June 3, 1940, when the validity of the assignment of the decree in favour of Keshardeo was pending decision in F. A. No. 24 of 1937 and also in F. M. A. No. 75 of 1937 and the direction or reservation was apparently intended to prevent complications, arising on the decision of that question in those appeals and to safeguard the alleged assignee Keshardeo's rights. Whatever the effect of the above direction, and it was certainly intended to give the judgment-debtors the benefit of part satisfaction as aforesaid as against the original decree-holder, Durgaprasad and/or the attaching decree-holder, the. Secretary of State if ultimately Keshardeo's assignment was found to be invalid or ineffective, it could not alter the voluntary character of the above payment of Rs. 1,60,000, nor could it take away the effect of the judgment-debtor's non-objection to the execution of the decree by the Secretary of State as the attaching decree-holder in pursuance of the show-cause notice, issued to them. The payment, therefore, must be regarded as a voluntary payment and, even if it be referable to the execution and regarded as payment under compulsion by virtue of the execution, that execution must be held to have been issued upon a judicial order, passed after notice to the plaintiffs judgment-debtors and not as a matter of course. Admittedly also, no demand was ever made by the plaintiffs judgment-debtors for return of the money or for its payment to the assignee decree-holder, Keshardeo and, as a matter of fact, the plaintiffs, all along insisted on retention of the money by the Secretary of State and its appropriation by him. In these circumstances, no question of detention of the money by the Secretary of State can at all arise and, on principles already stated, no damages can be claimed against the Secretary of State for any wrongful receipt or retention or detention of the money.
24. We have so long dealt with the question of damages so far as the payment of the money (Rs. 1,60,000) was connected with the so-called illegal execution of the decree by the Secretary of State. As the claim for damages was also sought to be supported in arguments before the Court on the ground of unlawful attachment, it is necessary to examine that aspect of the matter, but we do not think that the claim can succeed on that ground either. The attachment was made by the Certificate Officer who was, of course, acting judicially at the instance of the Income-tax-Officer through the Collector, How-rah. The latter again in sending the Certificate for execution was acting under statutory powers for performance of statutory duties (vide Section 46 of the Indian Income-tax Act). The Certificate Officer was acting judicially and no question of damages would arise, so far as he is concerned, even if the order of attachment was unlawful. As to the Income-tax Officer's and the Collector's acts also in seeking execution of the Certificate and obtaining the attachment for that purpose from the Certificate Officer, the Secretary of State cannot be made responsible as those Officers were obviously acting under statutory powers and not strictly as agents of the Secretary of State. In this view no question of ratification by the Secretary of State would also possibly arise. But, even assuming that the Income-tax Officer's and the Collector's action in sending the Certificate for execution and getting the attachment was ratified by the Secretary of State by accepting responsibility for the receipt, of the money, deposited at the Collectorate, throughout the proceedings in Court, the Secretary of State or, for the matter of that the Union of India, would not be in any worse position. Mere unlawful attachment (which was of a decree in the present case) did not certainly amount to trespass according to law. It merely prohibited the judgment-debtors from making payment to the rival claimant, Keshardeo. It is not, however, the plain-tiff's case that but for the said attachment they as judgment-debtors would have paid the money to the assignee decree-holder, Keshardeo, during the relevant period. There is also no allegation here, --far less proof, -- of malice or want of reasonable and probable cause against the Secretary of State in the matter, of the said attachment, or the receipt or retention of the money. On the other hand the payment, as we have held above, was a voluntary one and the retention of the money by the Secretary of State was throughout with at least the connivance or passive consent of the judgment-debtors who made common cause with him in resisting the assignee, Keshardeo's claim. Indeed no damages have claimed on the ground that, by reason of any act done by or on behalf of the Secretary of State, the judgment-debtors were prevented from paying the money to the rightful claimant, assignee Keghardeo, which they would otherwise have done. As a matter of fact, such claim and such a plea would have been utterly inconsistent with the conduct of the judgment-debtors throughout the various proceedings in Court. The claim for damages was made only in regard to payment of Rs. 1,60,000 and also only upon the footing that this payment was an involuntary one and the money was unlawfully detained by the Secretary of State, neither of which two allegations has been established in the case. That being so, the plaintiffs' claim (case) for damages, so far as it is founded on the unlawful attachment and receipt of the money thereunder, must also fail.
25. Before the learned Subordinate Judge the appellants' claim was also sought to be supported by invoking equity in their favour. No such ground, however, has been pressed before us presumably for the obvious reason that the appellants' conduct throughout would militate against such a plea. No plea of equity is, therefore, open to the appellants.
26. Before concluding we would also like to add that this plea of tort should not have been allowed by the learned Subordinate Judge to be raised in support of the appellants' claim as, in the pleadings before the Court, there was hardly anything to indicate it in any sufficient manner and as this plea obviously required consideration of matters which could not strictly be said to be all matters of law.
27. In the above view, we dismiss this appeal with costs.
Renupada Mukherjee, J.
28. I agree.