HARICHAND Vs. GYANIRAM

JUDGEMENT

(1.) . 1. This is an application for revision under Section 25, Provincial Small Cause Courts Act, by the plaintiffs-applicants whose suit against defendants 1 to 3 non-applicants 1 to 3 has been dismissed by the lower Court, defendant 4 non-applicant 4 having already been previously discharged. Plaintiffs 1 to 7 were the sons and plaintiff 8 was the widow of the deceased Karu Patil and are his legal representatives. Their suit was for recovery of Rs. 750 which they paid to defendant 4 in satisfaction of his decree in Civil Suit No. 170 of 1933 dated 20th November 1933, against defendant 1 and his brother Gopichand deceased whose son and widow are respectively defendants 2 and 3. In that suit the property of defendant 1 and Gopichand was attached before judgment whereupon on 26th March 1933, at their instance Karu gave a suprudnama and helped them to have their moveable property released from attachment. On 11th August 1934, defendant 1 and the deceased Gopichand made an application to the executing. Court for release of the attached property under Section 60, Civil P.C., which application was partly allowed and. partly dismissed by order dated 5th October 1934, (Ex. P-3). Defendant 1 and the deceased Gopichand thereupon appealed to the Court of the Additional District Judge with the result that the attached property, at any rate the attached moveable property, was freed from, attachment. During the pendency of that appeal the appellants, that is defendant 1 and the deceased Gopichand, had secured a stay order on certain terms for the fulfilment of which Karu stood surety under the surety bond dated 23rd January 1935, (Ex. P-5). Defendant 4, who had got the decree in that suit as already stated, directed execution against Karu as being a surety and the executing Court allowed him to do so as would appear from the order dated 21st December 1935 (Ex. P-6). In due course the village share of Karu was attached and execution proceedings were transferred to the Collector who proclaimed that property for sale. Karu and after his death the plaintiffs appeared to have done their utmost, though late, to get exonerated from liability to pay the decretal amount but they did not succeed and ultimately made the payment in respect of which they are seeking to be reimbursed.

(2.) THE point of view, which prevailed with the lower Court in dismissing the plaintiffs' suit, was that, inasmuch as defendant 1 and the deceased Gopichand had succeeded in getting their entire property released from attachment, there was no liability at all against Karu any longer and, if he was required to pay and did pay, it was his own misfortune, the payment being no more than voluntary. That is also the argument here. Before I deal with it, there is one point which has to be cleared and that is whether the entire attached moveable property for the production of which Karu had stood surety had been released or a part of it was not released. In order to justify the execution proceedings against Karu, defendant 4 had taken up the position that a part of the property was not released from attachment and that Karu committed a breach of his obligation in not producing it. Naturally being interested in substantiating the position that the plaintiffs were mere volunteers, defendants 1 to 3 have taken the stand that the entire property had been released. So far as the plaintiffs are concerned, they took both these contradictory positions in the lower Court at two different stages and I agree with the lower Court that they must be bound to the position which they first took, namely, that the entire attached moveable property, the production of which Karu had undertaken, was ordered to be released. Even so, I cannot accept the view which the lower Court has taken to the effect that the plaintiffs were not entitled to recover the money they paid on account of the decree against defendant 1 and the deceased Gopichand. The learned Judge of the lower Court has, I think, entirely missed the true meaning and significance of Section 69, Contract Act, and the principle underlying it. That provision is in the following, terms: A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.

(3.) THIS is precisely the position in the present case. It follows therefore that the plaintiffs' claim was lawful and just and has been dismissed wrongly and unreasonably. Accordingly I allow the application for revision, and reversing the lower Court's judgment and decree, I direct that defendants 1 to 3 do pay to the plaintiffs the sum of Rs. 750 and the plaintiffs' costs in this Court as well as in the lower Court and also interest on Rs. 750 at 3 per cent, per annum from 22nd March 1941 till realisation Counsel's fee Rs. 30. The liability of defendants 2 and 3 would not be personal but is limited to assets left by the deceased Gopichand as a coparcener or otherwise. The conduct of defendant 4 has been anything but fair. I set aside the lower Court's order dated 7th April 1942 which allows him his costs. He will bear his costs also in this Court.