MUTHUSWAMI AIYAR Vs. SUBRAMANIA AIYAR

JUDGEMENT

(1.) The parties to the Small Cause suit out of which this Civil Revision Petition arises were co-defendants in a previous suit. A Joint decree for costs was passed against them, the amount was recovered wholly from the plaintiff, and he claimed and obtained a decree for contribution from the four defendants. The question is whether any such claim can be supported, and, if so, whether the Lower Court was right in awarding a moiety of the costs paid.

(2.) There is a quantity of case-law, not entirely reconcilable, upon this topic. A number of earlier cases, such as Suput Singh V/s. Imrit Tewari (1880) I.L.R. 5 C. 720, Manja V/s. Kadugochen Nayar (1883) I.L.R. 7 M. 89 and Thang-ammal v. Thyyamuthu (1887) I.L.R. 10 M. 518, apply the test adopted in the English case, Merryweather V/s. Nixan (1799) 8 Term Rep. 186 : 101 E.R. 1337 whether and to what extent the parties were tort-feasors in the prior action. Upon this principle, too, a claim was rejected by Kumaraswami Sastri, J., in Koppana Chelamiah v. Suryanarayana Jagapathi (1919) 10 L.W. 261. More recently Waller, J., in Narayanamurthi V/s. Chandrayya has shown that the House of Lords has refused to follow Merryweather V/s. Nixan (1799) 8 Term Rep. 186 : 101 E.R. 1337 Lord Herschell observing: It is not found on any principle of justice or equity or even of public policy which justifies its extension to the jurisprudence of other countries.

(3.) Upon this ground it was declared by the Allahabad High Court in Parsotam Das Kolapuri V/s. Lachmi Narain (1922) I.L.R. 45 A. 99 and it has not been seriously pressed upon me here. It is further conceded that the mere fact that he has satisfied a joint decree for costs will not, without more, entitle the plaintiff to contribution. As to what more has to be shown, a distinction needs to be drawn between a decree for costs against co-plaintiffs and one against co-defendants. It appears to me, with respect, that this distinction has not been sufficiently kept in view by Daniels, J., in Babu Ram V/s. Badri Das (1926) 95 I.C. 689. He expresses the view that "prima facie a right of contribution exists between persons against whom a joint decree for costs has been passed and that it is for a defendant seeking to avoid liability to show some equity which entitled him to exemption." The two cases of his own Court which he cites in support of this proposition, Ramsarup V/s. Baij Nath (1920) I.L.R. 43 A. 77 and Parsotam Das Kolapuri v. Lachmi Narain (1922) I.L.R. 45. A. 99, relates to co-plaintiffs, and in the latter case Ryves, J., recognises that a different rule would apply to co-defendants. The objects and interests of co-plaintiffs are identical, and from their voluntary association it may be said that there arises an implied contract, which equity will enforce, to share gains and losses. It is otherwise with co-defendants who may be forced into the position against their will, and whose interest may be adverse inter se. Upon such grounds as these it was held in Mulla Singh V/s. Jagannath Singh (1910) I.L.R. 32 A. 585 that where one of the defendants pays the full amount of the costs, and then sues his co-defendants for contribution he must show some equity existing which will make his co-judgment-debtors liable for contribution.