JUDGMENT Balram Upadhya, J. - This is a plaintiff's appeal. On 13-4-1944 the plaintiffs purchased the property containing the shop in which the defendant is a tenant. They sent a notice terminating the defendant's tenancy and filed a suit for ejectment. The suit was decreed but on appeal the case was remanded to the trial court. The defendant came up in revision to this Court but the revision was dismissed. By the time the case went back to the trial court the UP Control of Rent and Eviction Act had come into force and the suit for eviction was therefore dismissed. 2. The plaintiff then sent a notice under section 106 of the Transfer of Property Act and demanding arrears of rent. Rent for some period had become legally irrecoverable and the defendant sent what he considered to be three year's rent for the period 1-1-1949 to 31-12-1951 after deducting Rs. 90 which the defendant claimed to be due in respect of the decree for costs in the earlier litigation and Rs. 144 being municipal taxes paid by him on 25-2-1950 and 21-2-1951 (Rs. 72 each time) in respect of the property in question. A total sum of Rs. 1386 was remitted by the defendant to the plaintiffs by money orders. These were accepted under protest. The money orders had been sent in January 1952. Thereafter a notice dated 12-9-1952 was again sent by the plaintiffs telling the defendant that he had not paid the entire amount due from him as rent and asking him to vacate the premises and to pay the arrears due. This notice required the defendant to vacate the premises so as to deliver possession on 1-10-1952. As in the notice sent by the plaintiffs certain spaces had been left blank a copy of this notice was sent on 24-10-1952 requiring the defendant to pay the arrears due and filling in the blank spaces. The defendant did not pay anything more and the suit was thereafter instituted on 5-12-1952. The pleas taken in defence which are now relevant were that the defendant was not in wilful default and inasmuch as all the rent which was legally recoverable from him had been paid, the defendant was not liable to be ejected. It was pleaded that the defendant was entitled to adjust Rs. 90 the amount of the decree for costs and Rs. It was pleaded that the defendant was entitled to adjust Rs. 90 the amount of the decree for costs and Rs. 144 the tax paid for the plaintiff's property to the Municipal Board. The trial Court found that the defendant was right in adjusting against the rent claimed from him Rs. 144 which he had paid to the municipality as tax, but was not justified in adjusting Rs. 90 against the arrears of rent. The learned Munsif further held that rent for the period earlier than three years had become time barred and was not recoverable. The learned Munsif further held that inasmuch as Rs. 90 had been wrongly adjusted by the defendant and ought to have been paid, the defendant was in wilful default in respect of the arrears and on this finding decreed the suit for eviction. Both the parties went up in appeal to the lower appellate court. The plaintiffs' appeal was against the adjustment of Rs. 144 which had been approved of by the learned Munsif and against the finding by the learned Munsif that the amount claimed in respect of the period earlier than three years was barred by time. This appeal was dismissed by the lower appellate Court. The defendant's appeal related to the question of ejectment and the question as to whether Rs. 90 which had been adjusted as the decree for costs should have been disallowed. The lower appellate court allowed the appeal in full on the finding that the defendant was entitled to adjust, the decretal amount as contended by him and could not be said to be in wilful default in respect of any arrears of rent on the facts of the case. 3. In this appeal learned counsel for the plaintiffs appellants has not addressed any argument on the question as to whether the plaintiffs are entitled to the amount which the plaintiffs claimed in respect of the period prior to 1-1-1949. Mr. 3. In this appeal learned counsel for the plaintiffs appellants has not addressed any argument on the question as to whether the plaintiffs are entitled to the amount which the plaintiffs claimed in respect of the period prior to 1-1-1949. Mr. Singh explained that the plaintiffs stand was that the period of limitation could begin to run only after the rent had become due and in view of the fact that the tenancy of the defendant had been terminated by a notice under section 106 of the Transfer of Property Act and litigation was pending for a very long time, the amount which was claimed from the defendant for the entire period at least from the date of termination of the tenancy was not rent but essentially a claim for damages and user and it was only due to the coming into force of the UP Control of Rent and Eviction Act that the nature of the plaintiffs' claim could be affected and the amount to which he would be entitled due to the change brought about by the Statute could be said to be in the nature of rent. This argument, however, has not been pressed and it is not necessary in this appeal to disturb the finding recorded by the lower appellate court relating to this matter. The only questions which had been pressed for consideration in this appeals are (1) As to whether the defendant was entitled to deduct out of the rent claimed from him Rs. 90/- which was due to him in respect of the (decree for costs; (2) Whether the defendant was entitled to adjust, against the arrears demanded Rs. 144/- which he had paid to the Municipality for taxes; and (3) Whether the defendant was in will full default and therefore liable to be ejected. 3. The litigation in which the decree for Rs. 90/- is said to have been passed ended some time in June, 1951. The two amounts of Rs. 72/- each were paid to the municipal board on 25-2-1950 and 21-2-1951. It is not denied that the rent prior to the period 1-1-1949 had not been paid by the defendant. 3. The litigation in which the decree for Rs. 90/- is said to have been passed ended some time in June, 1951. The two amounts of Rs. 72/- each were paid to the municipal board on 25-2-1950 and 21-2-1951. It is not denied that the rent prior to the period 1-1-1949 had not been paid by the defendant. It is evident from the history of the litigation between the parties that soon after the purchase of the property by him in April, 1944, the plaintiff embarked upon an endeavour to evict the defendant and the usual payments by a tenant to his landlord of rent do not appear to have been made in this case. The plaintiff did claim a large amount in respect of the rent of that period which fell prior to 1-1-1949 but the claim has been disallowed on the ground of limitation. It is evident therefore that on the dates when the decree was passed and when these payments to the Municipal Board were made, the defendant did owe to the plaintiffs a large sum of money all of which had not become irrecoverable under the Indian Limitation Act. On 25-2-1950 when Rs. 72/- were paid the rent for the period beginning from March 47 was due and could be recovered by the plaintiffs. If therefore the defendant did make any payment for and on behalf of the plaintiffs to the Municipality, the payment should be treated as one made to the plaintiffs themselves. This payment would be not of rent for the last two months of the period for which it was due on 25-2-1951 and it could be properly treated as payment towards the rent of the earlier period which was then recoverable, namely, the rent for the months of March and April, 1947, The rent of the premises is said to be Rs. 45/- a month at the time. The amount of rent for those two months would therefore be Rs. 90/- out of which Rs. 72/- could have been properly paid. Similarly on 21-2-1951 when Rs. 72/- were paid to the Municipal Board by the defendant they may be treated as having been paid out of the rent due and recoverable for the months of March and April, 1948. In the same manner if on 25-6-1951 the defendant became entitled to Rs. 72/- could have been properly paid. Similarly on 21-2-1951 when Rs. 72/- were paid to the Municipal Board by the defendant they may be treated as having been paid out of the rent due and recoverable for the months of March and April, 1948. In the same manner if on 25-6-1951 the defendant became entitled to Rs. 90/- as his decree for costs against the plaintiffs, he had the rents of the months of May and June 1948 against which he could recover this entire amount. I am unable to see how this amount could be claimed to be a set off or adjusted only against the rent for the period 1-1-1949 to 31-12-1951. Two contentions have been urged on behalf of the respondent in this connection. The defendant was entitled to adjust the tax against the rent of the years for which the taxes were paid. Learned counsel contended that the question was not raised in this form at the trial otherwise it could be possible for the defendant to show that in respect of the years 1944 to 1948 taxes were similarly paid. Even if this contention that taxes were paid similarly in earlier years be accepted, the payments of the taxes in those years could not wipe out entirely the liability for the rent of those years which was on the defendant. After all the taxes for each year are said to be Rs. 72/- only, while for each year the rent was Rs. 540/-. The argument that the payments of taxes are adjustable against the rent for these particular years in respect of which the taxes were paid can hardly be entertained. It is not pleaded that there was any such agreement and it an occupier has to pay any municipal dues which the owner is primarily liable to pay he can claim an adjustment against what he is himself liable to pay to the owner. Payments were made for the plaintiffs and could be claimed to be set off against the total amount which at the time the defendant was liable to pay to the plaintiffs. Regarding the adjustment of Rs. 90 for costs it is not clear on what date this adjustment was made. No copy of any such adjustment made in court has been produced. Regarding the adjustment of Rs. 90 for costs it is not clear on what date this adjustment was made. No copy of any such adjustment made in court has been produced. In June 1951 when the decree was passed in the defendant's favour he evidently became entitled to realise the amount from the plaintiffs and if he had in his hands money which was payable to the plaintiffs at the time the adjustment could best be made against that amount. I am, therefore, of opinion that there was no justification for the view that the defendant was entitled to deduct Rs. 90 or Rs. 144 from the amount which he was liable to pay to the plaintiffs as rent for the period 1-1-1949 to 31-12-1951. 4. The question of wilful default becomes simple on the finding given above. The question as it was debated at the bar was as to whether the expression 'any arrears' would include time-barred arrears. A Division Bench of this Court sitting at Lucknow, in Sohan Lal Kharbanda v. Dr. Sri Ram Sinha, 1957 ALJ 503, took the view that the expression any arrears' in section 3 of the UP (Temporary) Control of Rent and Eviction Act, 1947 is wide enough to include even those arrears which could not be recovered in a court of law.' The learned Judges were of opinion that the remedy of the landlord to recover an arrear may be lost by reason of the law of limitation but the tenants liability in equity to pay the past rent subsisted. Significance was attached to the word 'any' and the view taken was that there was nothing to exclude the time-barred arrears from the ambit of the expression 'any arrears'. section 3(1)(a) of the UP (Temporary) Control of Rent and Eviction Act as it then stood and even after the amendment requires that the tenant should have failed to pay the arrears demand from him within one month of the receipt by him of the notice of demand. The essential requirements of this provision are (1) that the tenant should be in arrears. The essential requirements of this provision are (1) that the tenant should be in arrears. This formerly was 'any arrears' and now is (1) 'arrears of rent for more than three months, (2) that the arrears should have been demanded by a notice from the tenant by the landlord and (3) that the tenant should have failed to pay the arrears within one month of the service of the notice. 5. Mere existence of the arrears and failure to pay them does not give the landlord a right to institute a suit for eviction without the permission of the District Magistrate. A notice of demand is essential. The arrears, therefore, which a tenant fails to pay should be one which should have been demanded by the landlord. A pertinent question arises as to whether the Statute purported to recognise the demand by a landlord of arrears of rent which he could not recover having regard to the provisions of the law of limitation. If the Statute of Limitation laid down that no court shall recognise or enforce a claim that was barred by time, can this provision of the UP (Temporary) Control of Rent and Eviction Act be said to require a notice of demand being sent by a landlord about such arrears of rent which he could not claim to recover in a court at all. A wilful default by a tenant which puts him out of the protection afforded by the Act is one not due to the arrears by themselves but due to his failure to comply with the notice of demand served upon him. The demand therefore is a very essential part of this provision of the Statute and it is possible to say that it affects and controls the meaning of the words 'any arrears'. In the Division Bench case mentioned above the attention of the learned Judges was not invited to this essential requirement of the Statute relating to a demand and this aspect of the case that the arrears should be those which the landlord must demand and may demand was not placed for their consideration. Ordinarily I would be bound by the view taken in the above mentioned case and if it had been necessary to do so I might have moved that the matter should be considered by a larger Bench. Ordinarily I would be bound by the view taken in the above mentioned case and if it had been necessary to do so I might have moved that the matter should be considered by a larger Bench. But in the present case the question is not now relevant or important for the disposal of the present appeal in view of the finding recorded above that the defendant was not legally justified in claiming to have adjusted the sums of Rs. 144 and Rs. 90 against the arrears due from him for the period 1-1-1949 to 31-12-1951. 6. Learned counsel for the respondent also relied on the provisions of section 59 of the Indian Contract Act. This provision reads as follows: "59. Where a debtor owing several distinct debts to one person, makes a payment to him, either with express intimation or under circumstance implying that the payment is to be applied to the discharge of some particular debt, the payment if accepted, must be applied accordingly. 7. It is contended that under this provision of the Statute it was open to the defendant to appropriate the adjustment of the decretal amount and the payment of municipal taxes towards such rents as were due from him and in doing so it was the defendants option to claim to adjust it against the rent of the month or months which he considered proper. 8. This provision of the Statute deals with these cases where a debtor is under several distinct debts liable to make payments to a plaintiff and the payments are made to the plaintiff either with express intimation, namely, distinctly and openly informing the creditor of such appropriation or under circumstances which necessarily imply that the payment is to be applied to the discharge of a particular debt. In the present case the payment was not made to the plaintiffs but for and on behalf of the plaintiffs. The question of intimation therefore could not arise. It is not alleged that at the time when the payment was made any intimation was given to the plaintiffs. The words used in the section are 'with express intimation'. These words imply that the intimation should synchronise with the payment. Here the intimation which is alleged to have been sent was given after the tenancy was terminated and arrears were demanded. The words used in the section are 'with express intimation'. These words imply that the intimation should synchronise with the payment. Here the intimation which is alleged to have been sent was given after the tenancy was terminated and arrears were demanded. This is not the nature of intimation contemplated by section 59 of the Indian Contract Act. There was nothing in the payment itself and there were no circumstances which could be said to imply that the payment was to be applied to the discharge of the liability in respect of the rent of any particular month or particular year. After having considered the matter, I fear it is not possible to accept the contention raised by the learned counsel. 9. In the light of the above observations this appeal is allowed. The decree for arrears of rent as passed by the lower appellate court is enhanced by Rs. 234 and the plaintiffs-appellants' claim for ejecting the defendant also stands decreed. 10. The parties will be entitled to their costs throughout according to their ultimate success and failure. 11. Leave to appeal is asked for and is refused.