JUDGMENT :- For realisation of arrears of revenue the suit property came to be sold in auction on 30-9-1116 M.E. end the sale confirmed by the Assistant Peishkar, Alleppey, on 29-12-1116. Pursuant to the sale, delivery of possession was effected on 6-4-1120 in favour of the auction purchaser, who is a brother of the plaintiff. The plaintiff was a hypothecatee of the property under the original owners. She claims to have obtained assignment of the auction purchasers rights and thereby to have become the absolute owner of the suit property. On 31-10-1122 defendants 2 and 3 claiming to be interested in the property moved a petition for revision of the order confirming the revenue sale before the District Collector, Quilon, which came to be disposed of on 12-9-1952 by an order which reads as follows :

"Heard the Vakil for the petitioners and the Advocate for the counter-petitioner and perused the records. It is clear from the records that the sale had been brought about during the pendency of a civil suit which ultimately was decided in favour of the revision petitioners. There is also a definite allegation that the sale was brought about at the instance of the pakuthy peon Aryan Padmanabha Pillai who is a nephew of the thandaperholder. The Proverthicars detailed report is silent on this point. All these circumstances lead to the conclusion that there had been fraud and collusion in this case. The sale will be set aside on the revision petitioners paying up the arrears with commission within 15 days of their receipt of the notice therefor from the Tahsildar."

The revenue sale having thus been cancelled by the Collector the plaintiff issued a notice under section 80, C. P. C. on 29-10-1952 to the District Collector, Quilon, and instituted this suit on 10-11-1952 before the expiry of two months of service of the notice. The suit was registered as O. S. No. 230 of 1952 on the file of the District Judge, Alleppey, subsequently transferred to and re-registered as O. S. No. 165 of 1957 in the court of the Subordinate Judge, Alleppey. A question of defect in the institution of the suit having been raised by the State under section 80 of the Code of Civil Procedure, the Subordinate Judge held the suit unsustainable and dismissed the same without adverting even to the alternative claim to enforce the hypothecation. Hence this appeal and the question is of the effect of section 80, C. P. C. on a suit instituted before the expiry of the period prescribed therein.

2. In Bhagchand Dagadusa v. Secy. of State, 54 Ind App 338 : (AIR 1927 PC 176), the Judicial Committee held section 80 (C. P. C.) to "impose a statutory and unqualified obligation upon the court" and therefore the suit instituted before the expiry of the period prescribed under the section "unsustainable in limine" as against the Government or the public officer concerned. Twenty years later, in Veliayan Chettiar v. The Govt. of the Province of Madras, 74 Ind App 223 : (AIR 1947 PC 197), the imperativeness of the section was again considered by the Privy Council and it was held that the provision was one that could be waived by the party for whose benefit it is enacted.

"In 54 Ind App 338 : (AIR 1927 PC 176), to which reference has already been made, no question of waiver arose. The observations of Lord Sumner in delivering the opinion of the Board were directed solely to the construction of the section and cannot in their Lordships opinion be regarded as deciding that it is not competent for the authority, for whose benefit the right to notice is provided, to waive that right. There is no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided.........there appears to their Lordships to be no reason why the notice required to be given under section 80, should not be waived if the authority concerned thinks fit to waive it. It is for his prot

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