MULLA Vs. JAGANNATH

JUDGEMENT

(1.) THE facts out of which this appeal arose are as follows: A suit, not the present suit, was brought to enforce a mortgage. THEre had been five mortgages affecting the property. One Jagannath represented the mortgagors, and he was the principal defendant to the suit. THE plaintiff in that suit who was the 4th mortgagee had paid off the first three. Narain Prasad represented the 2nd mortgagee who had been paid off and also in part represented the 5 mortgage. Mulla also in part represented the 5 mortgagee as an assignee from Narain Prasad. Narain Prasad in his written statement admitted the plaintiff's claim, and as to his own mortgage he stated that he would bring an independent suit. Mulla in his written statement, which was a separate written statement from that of Narain Prasad, stated that he had nothing to do with the property, and that the real person interested was Narain Prasad. Jagannath disputed the first four mortgages and succeeded in getting in the first instance the suit dismissed. THE plaintiff appealed making Mulla and Narain Prasad respondents as well as Jagannath. Jagannath alone appeared. Narain Prasad and Mulla were unrepresented. THE Court allowed the appeal and a decree followed ordering the respondents, which, of course, included Narain Prasad and Mulla to pay the casts incurred by the appellant. Jagannath it appears is a man of straw, and when the decree-holder came to execute his decree for costs, he executed it against Alalia alone who was obliged to pay all the costs. Mulla then instituted the present suit against Jagannath and other persons including Narain Prasad claiming contribution in respect of the decree for costs which he had been obliged to satisfy. THE Court of first instance held that it was Jagannath alone who had caused all the trouble, and it gave Mulla a decree as against him exempting the other defendants including Narain Prasad. THE lower appellate Court confirmed the decree of the Munsif. Hence the present appeal. THE appellant contends that he and the other judgment-debtors other than Jagannath were all equally innocent, and that he having paid the decretal amount is entitled to contribution. Of the respondents Narain Prasada alone appears, and he contends that it is necessary, before the plaintiff can obtain contribution, that he should show some equity existing between the plaintiff and his co-judgment-debtors making the latter liable to contribution. In the present case, if either Mulla or Narain Prasad had appeared in the appellate Court, in all probability there would have been no decree for costs against either one or the other of them. Both neglected to take this precaution, and it is contended that the mere fact that a binding and conclusive decree is passed between the plaintiff in the original suit and the defendants to that suit, does not render the judgment-debtors liable as a matter of course, and that as between the judgment-debtors the decree is not in any way conclusive. After carefully considering the matter, we have come to the conclusion that the decision of the Court below ought not to be disturbed. We have been referred to no case in which the mere fact that a decree for costs was made against several persons rendered the co-defendants liable in a suit for contribution. In the case of Dearsly V/s. Middleweek 18 Ch. D. 236 : 50 L.J. Ch. 777 : 45 L.T. 404 : 30 W.R. 45, an injunction with costs had been granted against two defendants, one a tenant of the plaintiff and the other an under-tenant. THE injunction was granted in respect of a covenant in lease of a certain messuage not to use the same as a hair-shop. THE tenant then brought; a suit for a revision of the under-lease against the under-tenant, and the under-tenant, by way of defence and counter-claim, asked for contribution in respect of the costs of the first action all of which had been paid by him. Fez, J., said: "This is an application for which there appears to be no precedent, and I shall not make one. I shall follow the dictum, which has been cited to me from the Court of appeal in Meal and Personal Advance Company v. McCarthy 18 Ch. D. 362 : 45 L.T. 116 : 30 W.R. 481 and hold that a defendant cannot proceed against a co-defendant for contribution in respect of costs to which both are equally liable." In the present case the plaintiff brought all the trouble upon himself by not appearing in the appellate Court and seeing that a proper order so far as he was concerned was made as to costs, we cannot see that he has any right against the respondent Narain Prasad who was equally innocent with him. As the appeal proceeds on ground common to all the respondents excepting Jagannath, the order of the Court below will stand as against them also. THE appellant must pay the costs of Narain Prasad.