JUDGMENT Stephen, J. - The Petitioners are alleged to have entered into a contract at or near Patna with one Narangi Persad to work for him at certain brick fields in the neighbourhood of Calcutta, for a period ending on the 31st of May now passed. It is Bald they received an advance of money on account of the work that they contracted to perform, and subsequently wilfully and without lawful or reasonable excuse refused to perform it. A complaint was accordingly made against them by Narangi Persad under sec 1 of Act XIII of 1859 on the 5th of March 1908 and the case was transferred to a Deputy Magistrate who made an order against one of the persons charged, with which we are not at present concerned. A rule has now been granted calling on the District Magistrate of the 24-Pergunnahs to show cause why the proceedings against the other persons who contracted to serve Narangl Persad should not be quashed as being without jurisdiction. The Magistrate considers that there is no objection to the jurisdiction of the trying Court, but also offers no objection to the proceeding being quashed as he considers it probable that the case has been falsely instituted at the instance of the Petitioners' zemindar. We have, however, heard Counsel on behalf of the complainant, which I consider was correct procedure as the present proceedings are in fact undertaken to enforce his civil right. The argument in favour of the rule, to show that the Magistrate has no jurisdiction is twofold. That which goes the more to the root of the matter is that as the complainant does not reside or carry on business in a Presidency town he cannot claim any remedy under the Act. An argument of more restricted scope is that as the term of the contract has now expired the complainant's remedy is gone. 2. The first argument may be stated thus. The Act confers on certain persons, namely masters and employers residing or carrying on business in any Presidency town, the privilege of enforcing their civil rights by a penal remedy enforceable by Criminal Procedure. The workman or the place where he contracts to do his work may be anywhere but the remedy is to be sought from a Magistrate of Police, which means a Presidency Magistrate. When the Act is expended by sec. The workman or the place where he contracts to do his work may be anywhere but the remedy is to be sought from a Magistrate of Police, which means a Presidency Magistrate. When the Act is expended by sec. 5 the only effect of the extension is to enable officers specially appointed to exercise the functions of a Magistrate of Police, and the privilege of persons residing or carrying on business in Presidency towns is not extended to any one else. I cannot agree with this argument. The curious effect attributed, and as it seems to me rightly attributed to the Act, in enabling a Presidency Magistrate to enforce a contract made and to be performed anywhere in British India, no doubt lends some colour to the suggestion that the extension of the Act has no effect except to provide for its enforcement at or near the place where it was made, or is to be performed. But had this been the intention of the Legislature I do not think they would have mentioned the extension of the Act. Also I consider that the language of sec. 5 shows that the extension of the Act means the extension of the whole Act, that such extension is something more than merely conferring certain powers on the officers mentioned, and that giving them those powers is merely ancillary to something else. If this is so the only other effect that the extension can produce is to confer on persons residing and carrying on business in the area to which the Act is extended the privilege conferred by the Act on persons similarly situated in regard to the Presidency towns. 3. That a practice has been followed for nearly fifty years is no proof that it is legal. But when we find that the Act has been extended to all the collectorates in the Bombay Presidency, to all the Districts of Madras, to the town and Cantonment of Rangoon, and to the tea Districts of Assam and Darjeeling, it is impossible to suppose that the privileges it confers were not intended to be exercised, and were not in fact exercised, by persons who resided or carried on business in those places and did not do so in a Presidency town. And I cannot find in the numerous reports of cases that have arisen under this Act that the exercise of such a privilege has ever been challenged. Consequently I am of opinion that a master or employer residing or carrying on business in a place to which the Act is extended has the same rights as are conferred by the Act on masters or employers resident or cariying on business in any Presidency town : and that the first ground I have mentioned on which we are asked to make this rule absolute fails. 4. As to the second argument in support of the rule, apart from authority I cannot regard it as sound. It was long ago decided in this Court that the Magistrate cannot order the workman to perform his work after the term of the contract has expired, In re Chikka Putta Weir's Rep. 470 (1884) and In re Matha Goundan Weir's Rep. 471 (1884), and the same view was recently taken by this Court in Khoda Buksh v. Moti Lal Johori 11 C.W.N. 247 (1906). The reason for this I suppose to be that after the term of the contract is expired the workman cannot perform his contract "according to the terms of his contract." But I cannot see why the expiration of the term of the contract should deprive the complainant of his right to exercise his option of asking for the recovery of the money he advanced. The option between the two remedies is that of the complainant and not of the person complained against, and the fact that one remedy would be infructuous does not seem to me to deprive him of the other. I consider that the complainant's right to recover the money he has advanced continues till it is repaid to him, subject to the effect of the Limitation Act of which there is no question here. This seems to me to be so particularly when, as is the case here, the complainant instituted proceedings at a time when both remedies were open to him, and it is only this rule that has prevented him from exercising his option. This view is in agreement with that of the Madras High Court in Queen-Empress v. Konda ILR 16 Mad. This view is in agreement with that of the Madras High Court in Queen-Empress v. Konda ILR 16 Mad. 347 (1893); but the decision in Khoda Buksh v. Moti Lal 11 C.W.N. 247 (1906) seems to me to be a direct authority the other way. It is there laid down that where the term of the contract has expired " the contract cannot be specifically enforced " or " the money recovered." I must respectfully dissent from this view but I do not consider the decision as obiter. Owing to the view taken by my learned brother the case cannot be referred to a Full Bench, and I have therefore no choice but to follow this decision. I therefore agree that the rule must be made absolute. Holmwood, J. 5. I think this rule should be made absolute. It is unnecessary to recapitulate the facts which are sufficiently set out in the judgment of my learned brother. 6. In my opinion the remedies under sec. 2, Act XIX of 1859 are interlocked and interdependent and if one has lapsed the other has lapsed also. 7. This is the view that was taken by this Court (Mitra, J. and myself) in the case of Khoda Buksh v. Moti Lal Johori 11 C.W.N. 247 (1906), to which I was a party. The law has, it is true, been much more stringently interpreted in Madras, Bombay and Allahabad but I prefer to follow the spirit of the rulings of this Court. 8. The offence created by the Act is not the neglect or refusal of the workman to perform his contract, but the failure on his part to comply with an order made by the Magistrate directing the workman to repay the money advanced or perform the contract. King-Emperor v. Takasi Nukayya I.L.K. 24 Had. 660 (1901) The complainant has the option of repudiating the contract and getting the money back or of keeping to the contract and getting the work done. Imprisonment is imposed as the punishment for refusing either of these remedies, but no fine or imprisonment is provided as a punishment after the contract has been broken and expired. The option being the return of money advanced or the performance of the contract while it is still running, it seems to me that the Magistrate's jurisdiction is gone if the option has become impossible. The option being the return of money advanced or the performance of the contract while it is still running, it seems to me that the Magistrate's jurisdiction is gone if the option has become impossible. The complainant must exercise that option within the time the contract is running. He cannot come after the contract has expired and say: "Now I have no option but I want my money back." The very fact that he has no option throws him on his ordinary civil remedy. 9. As regards the enforcing of the remedy if it has been duly sought within the time before the contract has expired I do not think any hard and fast rule can be laid down, but as to the exercise of the option I am clear and the circumstance of this case fully bear me out. 10. In the case that has been tried out and which forms the subject of another rule Not reported. There was a conviction in that case. But it was quashed by their Lordships - REP. the option chosen by the complainant was that the work should be completed but now that the time has expired in the other cases, the complainant merely wants his money back or rather wants to punish the accused with imprisonment for failing to return the money. The Magistrate of the District in showing cause for the Crown considers that the case is a more than doubtful one and recommends the quashing of the proceedings. We heard the learned Counsel for the complainant very fully and the impression left on my mind was that these cases are now being pursued to secure the punishment of the accused and not to secure the legal remedies under the Act. 11. There is ample authority for holding that the enforcement of the contract cannot be asked for after the time fixed has expired. Vide In re Chikka Putta Weir's Rep. 470 (1884), In re Matha Goundan Weir's Rep. 471 (1884) and In re Bettay Weir's Rep. 473 (1884), and the dictum in Khoda Buksh v. Moti Lal Johori 11 C.W.N. 247 (1906) extending this doctrine to the recovery of the money has my fullest concurrence. 12. It was pressed upon us by learned Counsel for the applicants for revision that the extension of the Act by a notification under sec. 473 (1884), and the dictum in Khoda Buksh v. Moti Lal Johori 11 C.W.N. 247 (1906) extending this doctrine to the recovery of the money has my fullest concurrence. 12. It was pressed upon us by learned Counsel for the applicants for revision that the extension of the Act by a notification under sec. 5 does not extend the place of residence of the complainant which is fixed by the Statute within the Presidency towns and the limits of a Presidency town cannot be extended by extending the Act. But it appears that this Act has as a matter of fact been working in Bombay, Madras, Assam and elsewhere throughout the districts for many years without objection and however sound this technical objection may be as a question of drafting it is too late to raise it now. The doctrine of factum valet appears to apply and the ordinary rules for the interpretation of Statutes also seem to favour the contention that the extension of the Act extends all its incidents; even though in terms the extension of the residence of complainants is impossible. But for the reasons I have already given I am of opinion that these rules should be made absolute and further proceedings dropped.