This is an appeal by the Plaintiff and is directed against the judgment and decree of the Court of First Additional District Judge, Jabalpur, dismissing his suit (No. 2-B of 1952).

The Plaintiff executed certain works for the Municipal Committee, Murwara, during the years 194 8-49, 1949-50 and 1950-51. These works were executed in pursuance of contracts entered into by the committee with the Plaintiff, and consisted of construction of chabutras and drain in the municipal market, repairs and construction of municipal buildings, and construction of roads within the municipal limits. It was alleged that the committee acted dishonestly in preparing the bills, in that it departed from the agreed rates and recorded incorrect measurements. The Plaintiff accordingly sued the committee for recovery of Rs. 15,936/6/- on account of the cost of construction and repairs, and claimed interest on the amount at 1 p. c. p. m. by way of damages. The suit was, however, dismissed as barred by limitation, without any decision on merits.

It was not disputed that the works were within the scope of the committee's duties under Section 50, and also of its discretionary powers under Section 51, C.P. and Berar Municipalities Act, 1922, hereafter called the Act. It was, however, contended that the view of the lower Court that the suit was governed by Section 48 of the Act was erroneous and accordingly the dismissal of the suit as barred by the special limitation provided therein cannot be maintained.

Sub-section (1) of Section 48 of the Act provides that no suit shall be instituted against a Municipal Committee for anything done or purporting to be done under the Act, until the expiration of two months next after a notice in writing, stating the cause of action, the name and place of abode of the intending Plaintiff and the relief which he claims, has been delivered or left at its office. Sub-section (2) of the said section directs the dismissal of every such suit unless it is instituted within six months from the date of the accrual of the alleged cause of action. The present suit was instituted after the expiry of this special period of limitation.

Sub-section (2) of Section 48 of the Act applies only when the suit is governed by Sub-section (1) ibid. This means that the claim must relate to an act done or purporting to be done by a Municipal Committee under the Act. Similar words, used in Section 73 of the C.P. Local Self-Government Act, 1920, were the subject of interpretation by a Division Bench of the late Judicial Commissioner's Court in K.L. Niyogi and Company v. The District Council, Buldana 13 N L J 71 : 26 NLR 81 : A I R 1930 Nag. 179 in which they were held to relate only to an act done or purporting to be done in direct execution of the Act and not in breach of any duty imposed, or exercise of a power conferred, by a contract. This view was followed by Niyogi J. in The Amraoti Town Municipal Committee v. Shaikh Bhikan ILR 1939 Nag. 216 : A I R 1938 Nag. 455 and by Clarke J. in District Council, Wardha v. Anna 1941 NL.J 371 : ILR 1942 Nag. 294.

It was, however, urged for the Committee that the above view requires reconsideration. The gist of the argument is that as the committee was authorized under Section 44 of the Act to enter into the contracts for execution of the works in suit, which were admittedly within the scope of its duties and also of its discretionary powers, its omission to pay for them should be deemed to be an act done or purporting to be done under the Act. Reference was also made to Section 63 (2) of the Act, which empowers the committee to apply the municipal fund to the payment of the charges and expenses incidental to such works, and it was urged that this provision also supports the above contention.

It is no doubt true that an Act includes an illegal omission vide Clause (2) of Section 3 of the General Clauses Act: see Prasaddas Sen v. K.S. Bannerjee ILR 57 Cal. 1127 : AIR 1931 Cal. 61. But the omission to pay a sum du