P L D 1958 (W (PLP)

B. Z. KAIKAUS, J.‑--This is an appeal by the Registrar, Co -operative Societies, against the order of Ch. Hamid Ullah, Civil Judge, Lahore, who has dismissed his objection to the execution of a decree against him.

2. The circumstances leading to the decree which are not clear on the record but which have been stated by learned counsel for the respondent and have not been contradicted by learned counsel for the appellant, are that an evacuee concern was allotted to the respondent, the Montgomery Flour and General Mills Limited. When the possession of the concern was handed over to the respondent, an inventory of the articles present on the premises was prepared. After the term of allotment of the respondent came to an end, this concern was allotted to the Registrar, Co‑operative Societies, Punjab. Again, when possession of the premises was given to the Registrar, Co-operative Societies an inventory of the articles present at the premises was prepared and it appears that there were more articles in this inventory than in the previous one. The respondent claimed all those articles, which were in excess, as belonging to it and called upon the Registrar, Co‑operative Societies to deliver the articles to it. Having failed in securing those articles from the Registrar, the respondent filed a suit after a notice under section 80 of the Code of Civil Procedure, against the Registrar, Co‑operative Societies as well as the Province of West Punjab. This suit was dismissed as against the Province but was decreed as against the Registrar. When the execution of this decree was taken out, the Registrar objected that the decree was not against him in his personal capacity and, therefore, execution could not be issued as against him. The learned Civil Judge 1st Class, who was executing the decree, disposed of this objection by a short order, which reads:‑ "The contention raised by the objector is that he is not personally liable for the satisfaction of the decree. The contention is baseless, because the decree is not being executed against him in his official capacity. The issue is, therefore, decided in favour of the decree‑holder." In the second sentence the word `not' is obviously due to a clerical error and should be omitted. The issue, it may be mentioned, had been framed in the following words:‑ Whether the decree is executable against the objector? The present appeal has been filed by the Registrar on the ground that he was not personally liable. The reason why this appeal has been filed is the existence of the word `not' in the second sentence which as I have already stated is due to a slip. There can be little doubt that the learned Judge was not pro ceeding against the appellant in his private capacity. It is conceded by learned counsel for the respondent, rather it is contended by him that the decree is against the Registrar only in his official capacity. The Registrar is not mentioned by name at all in the suit.

3. This should have been sufficient to dispose of this appeal. Learned counsel for the appellant urges, however, that the decree is wholly in-executable, for it is not a decree against the Registrar in his personal capacity and. so far as his official capacity is concerned a Registrar is not a juristic person like a Corporation and, therefore, any decree against him in his official capacity is a decree which has no existence in the eye of law. A decree, he says, must be against a juristic person.

4. There appears some force in this argument at first sight, for it is not possible for the respondent to contend that a Registrar, as such, is a juristic person. A juristic person must be created or recognized by the law. The Registrar is only the holder of a public office. However, although a Registrar, is not a juristic person, it becomes clear, on a perusal of the relevant provisions of the Civil P. C., that that Code attaches a special significance to a suit against an officer in his official capacity so that if the State takes it upon itself to defend the suit, that suit becomes virtually one against the State. The relevant provisions of Civil P. C. axe sections 80 and 82, and rules 7 and 8 of Order XXVII, which are reproduced below:‑ "80‑No suit shall be instituted against the Crown, 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 delivered to or left at the office of‑ (a) in the case of a suit against the Central Government, a Secretary to that Government; (b) in the case of a suit against. the Crown Representative, the Political Secretary ; (c) in the case of a suit against a Provincial Gover nment, a Secretary to that Government or the Collector of the District, and (d) in the case of a suit against the Secretary of State, a Secretary to the Central Government, the Political Secretary and a Secretary to the Provincial Government of the Province where the suit is instituted, 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; and the plaint shall contain a statement that such notice has been so delivered or left." "82‑(1) Where the decree is against the Crown or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified, the Court shall report‑the case for the orders of the Provincial Government. (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report." "Order XXVII, rule 7‑(1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Crown before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court shall extend the time for so long as appears to it to be necessary." "Rule 8‑(1) Where the Crown undertakes the defence of a suit against the public officer, the Crown Pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits. (2) Where no application under sub‑rule (1) is made by the Crown Pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties: Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree."

5. According to section 80 no suit can be brought against a public officer in respect of any act purporting to be done by such officer in his official capacity until the notice mentioned in that section has been served. In accordance with section 82, where a decree is passed against the State or a Province or against a public officer in respect of an act in his official capacity, time has to be specified in the decree within which it is to be satisfied and if the decree is not satisfied within that time the Court is simply to report the case for the orders of the Provincial Government. No execution is to be issued on any such decree unless it remains unsatisfied for the period of three months from the date of the report. Rule 7 of Order XXVII provides that where a public officer is sued in his official capacity, he may make a reference to the Government before answering, the plaint, and may apply to the Court to grant him extension of time for that purpose. According to rule 8, if the State or the Province undertakes the defence of a suit against a Public officer, then the pleader for the State or Province will appear and defend the suit and the Court shall cause a note of his authority to be entered in the register of civil suits. If the pleader for the State or Province does not appear and defend, the suit shall be regarded as one between private parties. It is to be observed, in the first place, that a decree against the Govern ment and a decree against a public officer in his official capacity is placed on the same footing by virtue of section

82. Just as a decree against the Government is not to be executed till the case is reported to the Government, similarly a decree against a public officer in his official capacity cannot be so executed. Had the matter stopped here, there may still have been room for doubt as to the effect of a suit against a public officer in his public capacity, but rule 8 of Order XXVII is decisive. According to it if the Government Pleader does not appear, the suit is to be regarded as one between private parties, which means that if he does appear it is not a suit against the public officer in his personal capacity but the Government virtually becomes a defendant. This inference receives strong support from the fact that in a suit against a public officer a note has to be made in the register of suits if the Govern ment Pleader appears and defends the suit. Unless the intention was that, in such a case, the Government, for all intents and purposes, becomes a party to the suit, there is no reason way an entry should be made in the register as to the appearance of the Government Pleader on behalf of the defendant. Considering all these matters it appears to me that in a case where the Government undertakes to defend a public officer in respect of an act done by him in his official capacity, the Govern ment is virtually a party to the decree and execution has to be against the Government.

6. The reason for these provisions is not far to seek. At public officer while acting in the discharge of his duties acts, on behalf of the Government, the liability for the consequences of his act is, therefore, that of the Government. It was, off course, open to the legislature to take the view that even in the case of an official act it was only when the Government itself was made a party that it should be liable. But it was also open to it to provide that even if the officer alone was impleaded the Government may become liable if it chooses to accept responsibility for the impugned action. It has taken the latter view.

7. The present case is, by itself, a good instance of the reasonableness of the interpretation I am placing on the pro visions quoted above. Here the suit was not against any particular Registrar but against the Registrar as such. The allotment was to the Registrar as such and not to a particular Registrar and it is obvious that the Registrar was being treated as a kind of juristic person. In fact he was holding the allot ment on behalf of the Government. The articles went into the possession of the Registrar as such, which means that they were taken over by his department. Under the circumstances it is clear that the decree has to be against the Government. Even the mere fact that the decision is against the Registrar as such would mean that it is against him in his capacity as, ‑the agent of the Government. Of course it would be open to the Government to repudiate a particular act of a public officer. In that case the Court would have to determine whether the Government is, in fact, liable. But if the Government adopts his act as its own by defending the suit, the responsibility for the result of the suit is that of the Government.

8. Learned counsel for the appellant has asked me to make it clear that this decree cannot be executed against any parti cular Registrar personally. I do make that clear; otherwise there is no force in this appeal, which is dismissed leaving the parties however, to bear their own costs. K. M. A. Appeal dismissed.