JADU NATH MANDAL Vs. AMULYA KRISHNA KUNDU

JUDGEMENT

(1.) This appeal arises out of a suit for contribution brought by the plaintiff for recovery of Rs. 542-8-3 from the defendants. The allegations on which the suit was brought were that one Malati Manjari Dasi had obtained a decree for maintenance against defendants 1 and 2 in 1916 with a charge on properties 1 to 3 in the suit, that the plaintiff subsequently purchased property 1 at an auction sale held in execution of a rent decree in 1917 and took possession thereof. But Malati Manjari executed her decree and put up that property to auction sale, that the said property was purchased at the sale by defendant 7 for Rs. 530 and by that sale the dues of Malati Manjari were satisfied and the charges on the other two properties were removed benefiting the other defendants who purchased them subsequently and making them liable to contribute. The defence was a denial of liability to pay any contribution and that the suit was barred by res judicata as well as limitation. The Court of first instance found all these points in favour of the plaintiff and decreed the suit. On appeal to the district Court, the learned subordinate judge raised three points for determination. These three points were : (1) Is the claim barred by the principle of res judicata? (2) Is it barred by limitation? (3) Were the defendants or any of them benefited as alleged by the plaintiff? If so, to what extent they or any of them are liable to the plaintiff? The learned subordinate judge found the points of res judicata and limitation against the plaintiff and on that finding he allowed the appeal and set aside the decree of the first Court without determining the third point raised by. him. The plaintiff has appealed to this Court.

(2.) It was contended before us that the lower appellate Court was wrong on both the points of res judicata, and limitation. As regards res judicata it appears that the plaintiff had instituted a previous suit against the defendants for recovery from them of the amount that has been claimed in the present case, and it appears that that suit was-dismissed on the ground of defect of parties. The learned subordinate judge held that this was sufficient for bringing in the operation of res judicata and for holding that the present suit was barred on that ground. I am of opinion that this was an erroneous view of the law. To constitute a matter res judicata it is necessary that the matter must have been heard and finally decided in the former suit, But the former suit in the present case was dismissed only on the ground of nonjoinder of parties; and that being so, the matter cannot be said to have been heard and finally decided. This view would find support from the Privy Council decision in the case of Sheosagar Singh V/s. Sitaram Singh [1897] 24 Cal. 616. An attempt was made to distinguish this Privy Council case from the present one. It was said that in the case of Sheosagar Singh V/s. Sitaram Singh [1897] 24 Cal. 616 the suit bad been dismissed on a preliminary point only and no issue had been tried and decided, whereas in the present case there were other issues also-which had been decided though in the plaintiff's favour. But this in my opinion would make no difference. The other issues might have been heard and decided, but they cannot be said to have been heard and finally decided as the finding on them was not necessary for the determination of the suit.

(3.) As regards limitation : it appears that though the suit was instituted against defendants 1 to 6 within time, defendant 7 was not brought on the record until after the limitation period had expired. The lower appellate Court on this ground held that the suit was barred by limitation. I am of opinion that herein also the learned subordinate judge fell into an error. The question of limitation could not arise : firstly because defendant 7 was not a necessary party and it was immaterial whether he was brought on the record or not; secondly because there was no relief claimed against him. On behalf of the respondent Dr. Pal tried to show that defendant 7 was a necessary party in a suit for contribution, I do not see how he was. For the purpose of assessing contribution all that was necessary was to determine the value of the three properties and to hold them liable in proportion of their value. That being so the presence of defendant 7, who was the purchaser of property 1 at the sale in execution of the maintenance decree, was not necessary. Even if it be conceded for the sake of argument that defendant 7 was a necessary party, there is no escape from the fact that no relief was claimed against him; and it has been held in the case of Mohamed Ishag V/s. Sheikh Akramul Huq [1907] 12 C.W.N. 84 that when a party is brought on the record out of time the question of limitation does not arise when there is no relief claimed against that party. I am, therefore, of opinion that the view taken by the slearned subordinate judge on both the points of res judicata and limitation is erroneous; and as the lower appellate Court has dismissed the suit on these points only, without determining the other points, the decree passed by it must be set aside. It is accordingly set aside and case is sent back to the lower appellate Court for determination of the third point raised by it in accordance with law. The appellant is entitled to his costs in this Court. The cost of the other Courts will abide the result.