SUBODH CHANDRA DAS Vs. SATISH CHANDRA DAS

JUDGEMENT

(1.) THIS is a plaintiff' s second appeal in a suit for contribution for the amount paid by the plaintiff in execution of a decree on the foot of a mortgage that had been passed against him and the defendants, in order to have the sale of the mortgaged property set aside under O. XXI, R. 89, C. P. C. The plaintiff had claimed in all the sum of Rs. 3200/-, Rs. 1600/- each against the two defendants, although according to the figures worked out in the plaint the amount of claim worked out at Rs. 4301.50P. The trial court decreed the suit for recovery of Rs. 1173/- with proportionate costs against defendant No. 2 and for recovery of Rupees 935.09P. against defendant No. 1, the costs being made easy in so far as the decree against defendant No. 1 was concerned. The defendant No. 2 was required to pay the amount within six months from the date of the decree, failing which the plaintiff was held entitled to realise the same by sale of 1/3rd share in House No. 7, Minto Park Kydganj. Allahabad. The defendant No. 2 was also made liable to pay interest at 6 per cent per annum from the date of decree till the date of actual payment. There were no such directions in respect of the amount decreed against the defendant No. 1.

(2.) THE plaintiff appealed to the District Court THE appeal was heard by the Court of the First Additional District Judge, Allahabad. THE appeal against the first defendant was dismissed with costs while that against the second defendant was allowed in part and the decree of the trial court against him was modified to the extent that the plaintiff was allowed interest from the date of the suit.

(3.) THE next claim of the plaintiff relates to the amount of interest and costs against the first defendant. THE lower appellate court has observed that the first defendant was not at fault for in reply to the plaintiff' s notice he said that he was willing to pay the amount but it was the plaintiff who did not indicate the time and place where the amount could be tendered to him. I do not see any error in this part of the judgment of the lower appellate court, and hold that interest and costs were rightly disallowed against the defendant No. 1.