RAMAKRUSHNA MOHANTY Vs. RADHAKRUSHNA MOHANTY

JUDGEMENT

(1.) THE plaintiff is in appeal against a confirming judgment of the learned 5th additional Subordinate Judge, Cuttack, in a suit for contribution against defendants 1 and 2.

(2.) THE plaintiff and defendants 1 and 2 who are his nephews were in possession of a homestead land to the extent of 12 decimals. In a partition the property and rent (sic) was being paid to defendant No. 4 together. On the allegation that defendant No. 4 and defendant No. 4 (sic) filed a rent suit for recovery of Rs. 11. 19 by way of arrears of rent while nothing was due and in the said rent suit a decree was obtained by suppressing summons and the holding was put to sale also without issuing proper notices to the plaintiff who was a judgment-debtor and the plaintiff came to know about the auction sale only when it was about to be confirmed and, therefore, made the deposit to satisfy the decree, the present suit for contribution was filed. The plaintiff claimed recovery of Rs. 245. 33.

(3.) THE defence taken by defendants 1 and 2 was that they had paid their share to the plaintiff; the plaintiff was aware ol the suit and was also in the know of the subsequent execution proceeding and had intentionally defaulted to make the payment; the rent suit was filed and the execution was taken on account of the default of the plaintiff and in the circumstances the plaintiff is not entitled to sue for contribution.