JUDGEMENT :- This is a plaintiffs' second appeal.

2. The plaintiffs first instituted a suit No. 163 of 1954 in the Court of Munsif, Bahraich, against the defendants praying that the defendant No. 1 (Deputy Commissioner, Bahraich) be permanently restrained from attaching or putting on sale the suit property of which the plaintiffs held jointly with defendant No. 2 on account of the dues from the defendant No. 2. Subsequently the plaintiffs sought permission of the Court to withdraw the suit with permission to file a fresh suit on which the following order was passed by the Munsif :

"The plaintiff is allowed to withdraw the suit with permission to file a fresh suit subject to payment of the cost to the defendant No. 1".

3. The suit (No. 294 of 1954) out of which the present appeal arises was subsequently filed by the plaintiffs against the same set of defendants on the assertion that the property mentioned at the toot of the plaint is the joint property of the plaintiffs and defendant No. 2 and it be declared that they are in possession of the property as owners and the defendant No. 1 cannot proceed against the same by way of attachment or sale on account of any dues from the defendant No. 2. In the plaint it was specifically alleged that a notice under Section 80 of the Code of Civil Procedure had been served on defendant No. 1 and a period of two months had expired thereafter before the presentation of the plaint in the Court.

4. Defendant No. 1 contested the suit. In the written statement the receipt of notice was admitted but it was pleaded that "the notice is defective". It was, however, not mentioned as to what was the defect in the notice.

5. The trial Court dismissed the suit on the following grounds :-

1. That the entire property was liable to be proceeded against by the defendant No. 1 for the amounts due from defendant No. 2.

2. That as the cost awarded to defendant No. 1 in the previous suit has not been paid by the plaintiffs the suit was not maintainable.

3. That "no valid notice has been shown to have been sent by the plaintiff".

6. Plaintiffs came up in appeal before the learned Civil Judge who did not go into the question as to whether the property being ancestral could or could not be proceeded against the dues of defendant No. 2 alone but affirmed the dismissal of the suit on the ground of the failure of the plaintiffs to have paid the cost of the previous suit to defendant No. 1 before instituting the suit and also because in his opinion they have also failed to prove to have given a valid notice under Section 80 Civil P.C., to defendant No. 1.

7. I have heard learned counsel for the parties.

8. It is significant to note that when the plaintiffs were permitted to withdraw their previous suit with liberty to file a fresh suit no time limit was fixed by the Court for the payment of the cost nor if was directed that in case of failure to pay the cost within a fixed period their application for withdrawal of the suit shall stand dismissed. That being so, it is obvious that it was open to the plaintiffs to have paid the cost even before the decision of the present suit. In a case of the present nature, therefore, the Courts below ought to have stayed the proceedings and fixed a date for payment of the cost by the plaintiffs to defendant No. 1 and if the plaintiffs had failed to pay it by that date only then their suit could nave been dismissed. I am supported in this view by a Division Bench decision of the Calcutta High Court reported in AIR 1920 Cal 897, in which it was inter alia held that where a plaintiff is allowed to withdraw a suit with liberty to bring a fresh suit on his depositing the costs of the defendant within a specified time, but the order contains no direction to the effect that on failure to pay within that time the suit will stand dismissed, the non-payment of such costs within the specified time does not bar the fresh suit. The only course to be adopted by the Court in such a case is to stay the hearing

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