- (1.) 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". 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.
(3.) 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.;