RAM SARUP Vs. BAIJ NATH

JUDGEMENT

(1.) The circumstances under which this appeal has arisen are briefly as follows:-- The parties to the present suit put in an objection to the attachment of certain property attached in execution of a decree of one Ganga Sahai. The objection was disallowed and thereupon some of the parties to this suit and the predecessor-in title of others appointed two persons as special attorneys in order to institute a suit in the Bombay High Court against the aforesaid Ganga Sabai for a declaration that the property was not liable to attachment and sale in execution of the decree which Ganga Sabai had obtained against a third person. After certain evidence had been taken, this suit was dismissed for default of prosecution and the decree - holder defend ant, Ganga Sihai, was awarded his costs against the parties to the present suit. He realised those costs from the plaintiff and the present suit, out of which this appeal has arise a, has been brought by the plaintiff for contribution against his co judgment debtors.

(2.) The pleas taken in defence were many. The defendants totally denied all knowledge of the Bombay suit and contended further that the plaintiff was wholly responsible for that litigation and that they were not liable to contribute. They further denied the plaintiff s right to claim a one third share out of the costs.

(3.) The Court of first instance decreed the claim. The defendants went up in appeal and the learned District Judge has upheld the decree of the first Court, so far as the amount claimed for contribution was concerned, but has modified it in regard to a certain item payable on account of the stamp duty and penalty charged on one of the documents produced by the plaintiff in support of his claim. The defendants come here in second appeal.