The legal remedy being barred by any law renders the debt not legally due, and the provisions of Order XXIII, Rule 1, C.P.C. do not apply when the subsequent suit was pending when the earlier one was dismissed as withdrawn.

The plaintiff in O.S. No. 53 of 1982 on the file of the Munsiff Court, Kasaragod, is the appellant. He filed the suit for injunction to restrain the defendants from taking steps under the Revenue Recovery Act to recover the amount allegedly due from him. He denied his liability pleading discharge and also alternatively set up a contention that the claim is barred by limitation. The defendants contested the suit. The 1st defendant claimed that Rs. 2958.50 and interest was due and there was no bar for recovery. The second defendant admitted having sent the certificate to the Village Officer, Kudlu, to recover the above amount as per the requisition he had from the 1st defendant.

2. The trial Court dismissed the suit which was affirmed by the Sub Judge, Kasaragod, in appeal, A.S. No. 73 of 1984, by judgment dated 10-3-1987 which is challenged in this Second Appeal.

3. Heard counsel for the appellant and the respondents.

4. It is not in dispute that the plaintiff was granted an agricultural loan by the 1st defendant on 17-1-1975. Ext. B3 showed that the last payment made by the plaintiff was on 1-6-1977. The requisition under Section 69(2) of the Revenue Recovery Act was issued by the 1st defendant in 1981, well after limitation had set in. Though a contention was advanced before the Court below that the limitation Act would not apply to proceedings under the Revenue Recovery Act, it was rightly repelled in the light of the decision reported in Raghavan Narayan, 1986 Ker LT

10, where it was held :

"When you say that a debt is due, it connotes that the debt is legally due to you and its repayment can be enforced through legal process. If the legal remedy is barred by any law, then, it cannot be said that it is a debt due."

But the suit was dismissed because it was held to be barred under Order XXIII, Rule 1(4), C.P.C.

5. It is admitted that the plaintiff had filed O.S. No. 152 of 1981 before the Munsiff Court, Kasaragod, against the 1st defendant for injunction to restrain him from recovering the amount allegedly due as per loan No. A. L. 1/75 under the provisions of the Revenue Recovery Act. The suit was dismissed as not pressed on 21-1-1983. These are borne out by Exts. B1 and B2. The present suit was filed on 9-3-1982.

6. The dismissal of the earlier suit which was not on the merits could certainly not operate as a bar for the subsequent suit on the same cause of action. In Daryao v. State of U. P., AIR 1961 SC 1457, while considering the application of Section 11, C.P.C. to petitions under Art. 32 of the Constitution of India, it was held (at page 1466) :

".... If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar. xxx xxx xxx If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.

xxx xxx xxx

If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court."

7. No doubt, under O. XXIII, R. 1, C. P. C. "at any time after the institution of a suit, the plaintiff may as against all or any of the defendants, abandon his suit or abandon a part of his claim" (subject of course, to what is contained in the proviso). Under sub-rule (3), where the Court is "satisfied that the suit must fail by rason of some formal defect, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant him permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim". Under sub-rule (4), where the plaintiff "abandons any suit or part