KANAILAL KUNDU Vs. NITYA SARAN MUKHERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff Kanailal Kundu arising out of a suit for contribution brought by him against a number of defendants. We are now only concerned with Gopal Das Mukherjee defendant No. 5 or rather, as that defendant is dead, his legal representatives, and with Mohini Mohan Mukherjee, the defendant No. 6.

(2.) Gopal Das Mukherjee defendant No. 5 was expressly exempted from personal liability under the decree in favour of Akhoy Kumari Debi passed by this Court, and the learned Pleader for the appellant admits that he cannot press the appeal as against the representatives of this defendant, more particularly as Gopal Das Mukherjee had no further interest left in the properties charged.

(3.) As against defendant No. 6 it is urged that he was made personally liable by the decree of the lower Appellate Court in favour of Akhoy Kumari Debi and that he is liable to contribute. The answer to the plaintiff s suit for contribution against this defendant is that the decree of the Court of first instance in the maintenance suit, while providing that certain defendants should pay off the decretal amount within four months from the date of the decree, went on to order that, on their failure to do so, the money should be realized by sale of the properties hypothecated. It was, therefore, quite unnecessary for the plaintiff to pay off this debt, or any part of it, in order to save the properties charged from being sold. His reason for doing this is obvious, because we are told that he has now become possessed of four-fifths of the properties charged. It was, therefore, to his benefit to save the pro-parties charged from the burden of this debt at the expense of the persons who were his co-defendants in that suit. We think, therefore, that his suit against the defendant No. 6 wag rightly dismissed by the learned District Judge.