JUDGMENT

J.S. Trivedi, J. - This plaintiff's Second Civil Appeal is directed against the judgment and decree of the Civil judge, Mainpuri, confirming the decree of the trial Court. The brief facts are that the plaintiff-appellant was a Toll Tax Inspector employed with the respondent Municipal Board. He was dismissed on 22-10-1956. An appeal was filed by him and the appeal was allowed and he was reinstated on 15-4-1957. The appellate authority also allowed him full pay for the period he had been out of service. The appellant resumed duties on 1-5-1957. He was again dismissed with effect from 9th October, 1959. He then approached the Board for payment of his arrears of pay. As a writ petition (Civil Misc. Writ No. 2084 of 1957) was pending in the High Court, the Board replied by letter dated 10-12-1957 that steps would be taken on his representation after the decision of the High Court. Again, by letter dated 23-8-1958 the appellant was informed that his representation would be considered after the receipt of the orders of the Government to whom his case had been referred. As the arrears of pay claimed by him were not paid, the suit out of which this appeal arises was filed after due notice, for the recovery of Rs. 947.38.

2. The suit was contested by the defendant-respondent on the ground that the matter is Sub-judice before the Hon'ble High Court and, therefore, the suit was premature. In the alternative, want of proper notice and bar of limitation under Section 326 (3) of the U.P. Municipalities Act was also pleaded. Issue No. 4 "whether the suit is within time" was made the preliminary issue and the trial court dismissed the plaintiff's suit holding that the suit of the plaintiff was barred by limitation. According to the trial Court, the limitation for filing the suit was 6 months under Section 326 (3) of the Municipalities Act and there was no ground for not filing the suit within 6 months from 15-4-1956, the date when the appeal of the plaintiff was allowed and he was reinstated. The lower appellate Court confirmed the finding of the trial Court holding that Section 326 (3) of the Municipalities Act was applicable and nonpayment of arrears of the pay amounted to an act of the Board and the suit having been filed on the expiry of 6 months from the date of the cause of action is barred by the law of limitation.

3. The only question, therefore, involved in this Second Civil Appeal is whether the claim of the plaintiff-appellant was covered by Section 326 (3) of the Municipalities Act and the limitation prescribed was six months for such a suit. Sec. 326 (3) of the Municipalities Act deals with the procedure for suits against Board or its officers. The relevant portion is as under :

"326 (1) . No suit shall be instituted against a board, or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer, or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

(2) .....................................................

(3) No action such as is described in Sub-sec. (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereof, be commenced otherwise than within six months next after the accrual of the cause of action."

4. For the applicability of Sub-clause (3) it is essential that the action described should be against the Board or against an officer or servant of the Board in respect of act done or purporting to have been done in its or his official capacity. The only act which is complai