Macpherson, J.This is an application u/s 25 of the Small Cause Courts Act.

2. The petitioners contend that the dismissal of their suit against the Dinapur Nizamat Municipality is not in accordance with law.

3. The petitioners had a contract to repair one of the Municipal roads and submitted their bill for Rs. 181-1-0 which was reduced by the Municipality which considered that they were entitled only to Rs. 11040, and offered that sum. Not satisfied the plaintiffs brought a Small Cause Court suit on the 22nd August 1925 for Rs. 209-8-0 including Rs. 23-7-0 as interest.

4. The Judge held, first, that the petitioners were not entitled to more than Rs. 110-4-0, and secondly, that u/s 377(1) of the Bihar and Orissa Municipal Act the suit failed because they had not given the requisite notice of one month to the Municipality and that it also failed u/s 377(2) because they had not commenced their, action within three months next after the accrual of the cause of action on the 24th. December, 1924.

5. On behalf of the petitioners the decision as to the amount due is but feebly assailed and, in my opinion, there is no ground for interfering with the decision of the Court below.

6. As to the second point, however, it is difficult to see how the decision can be maintained. The suit was in contract and not in tort and it has been held that Section 363 of the Bengal Municipal Act. 1884, which does not differ from Section 377 of the Bihar and Orissa Municipal Act, 1922, does not cover cases of contract. I would refer to the judgement of Richardson, J., in Panchanan Chatterjee v. Santosh Kumar Base 65 Ind. Cas. 105 in which the position was precisely the same as it is in the present case. In my opinion Section 377 does not apply in either Sub-section (1) or Sub-section (2): and the suit ought not to have been dismissed in toto by reason of any of its provisions.

7. There must, therefore, be a decree for the plaintiffs for Rs. 110-4-0 with future interest at 6 per cent, per annum. But as this-amount was offered to him prior to the suit by the Municipality and he refused to accept it, it is clear that he ought to pay the costs of the defendant opposite-party throughout. Pleaders fee in this Court one gold mohur.