SHANKERLAL Vs. MOTILAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff Shankerlal in a suit for contribution.

(2.) THE facts leading up to this appeal may be shortly stated as follows. There was a house belonging to Parakh Motichand Govinddas situate in Udaipur City. The ancestors of the plaintiff Shankerlal and defendants respondents Motilal and pannalal had agreed to purchase this house for Rs. 19,999/-from the Parakhs on maha Sudi 14 Sm. 1945. They wanted to back out of this agreement and this led to a suit by the Parakhs against the ancestors of the present parties with the result that a decree was passed in favour of the Parakhs against the ancestors of the plaintiff and the defendants respondents for a sum of Rs. 19,999/ -. This decree is dated the 12-7-1892. According to the practice which was in force in the former state of Mewar, this decree was affirmed by the Mehdraj Sabha on the 8-4-1896, and finally confirmed by His Highness the Maharana of Udaipur on the 31-8-1896. The decree-holders took out execution of this decree, but the precise details before 1937 are not known and they are not material for the purposes of the present appeal. What is material is that the decree-holders sold their decree for rs. 15000/- to one Roshanlal Chatur and his relations on the 10-1-1937, and consequently the assignees were brought on the record in place of the original decree-holders, namely, the Parakhs. Then the execution court sent the case up to the Mehdraj Sabha for sanction to auction the house in question as the judgment-debtors were not paid the decretal amount. What happened in the Mehdraj Sabha then has led to the present litigation. The assignees of the decree as well as the plaintiff's father Tansukhlal and the present respondents were represented before the Mehdraj Sabha on the 28-11-1937. It was stated by Motilal's Vakil Shri Arjunlal mehta and by Pannalal before the Mehdraj Sabha that they did not want to have the house any more and that if Tansukhlal (father of the present plaintiff shankerlal) alone wanted to have the house he could take it. It was further stated that they also did not claim any compensation from the decree-holders. I may pause to point out here that it appears that as the possession of the house still remained with the decree-holders and their assignees throughout all these years, a contention had been raised on behalf of the judgment-debtors that the house had suffered considerable deterioration at the hands of the former and that they were entitled to receive compensation from them (i. e. , the decree-holders of their assignees ). It was finally prayed that if the decree-holders were prepared not to levy execution against them, then they (the two judgment-debtors) would be prepared not to ask for possession of the house. Mano-harlal, the Aam-mukhtar of the assignees, also gave his statement before the Mehdraj Sabha the effect of which is that the assignees had no objection if liability for the execution of the entire decree were to rest on Tansukhlal alone and the other two judgment-debtors were to be let off. It is remarkable that although Tansukhlal was present before" the Mehdraj Sabha, his statement was not recorded which has led to a good deal of trouble. The position of the plaintiff is that Tansukhlal had not undertaken the entire responsibility for the execution of the decree expressly or impliedly whereas the contention of the defendants is that although Tansukhlal had not expressly undertaken such a liability, he had impliedly assumed full responsibility for the satisfaction of the decree. Be that as it may, the Mehdraj sakha passed an order on the same day Ex. p-4 in which reference is made to the statements referred to above on behalf of the decree-holder assignee and the judgment-debtors Pannalal and Motilal, and it is also said that the decree-holder was prepared to give possession of the house; and, therefore, the following further directions were given:

(3.) THE defendants admitted that the Parakhs held a decree against the common ancestors of the parties but they resisted the suit by saying that the plaintiff's father Tansukhlal had undertaken to take the house by himself and also to pay off the entire decree, and, therefore, the defendants stood absolved from all liability under the decree and the plaintiff had no valid claim for contribution against them. The defendants also contended that the plaintiff need not have paid the full amount to the assignees of the original decree-holders inasmuch as the latter had absolved the defendants from all responsibility under the decree. The only other point of substance which need be mentioned at this date is the further contention of the defendants that the claim for contribution made by the plaintiff as regards the sum of Rs. 513/- out of the decree held against the jagir of Keria is barred by limitation.