BEJOY KUMAR SEN Vs. KUSUM KUMARI DEBI

JUDGEMENT

(1.) These two appeals arise out of a contribution suit. Jagabandhu the predecessor of the plaintiff, Mathura Nath the predecessor of defendants 1-3, Umesh Chandra the predecessor of defendants 5 and 6 and defendant 4 held a Nim Osat Taluk. The landlord in execution of a decree for arrears of rent in respect of it brought the taluk to sale when one Somoraddi who had a subordinate interest in it deposited the decretal amount under Section 171, Ben. Ten. Act. Subsequently he brought a suit against the Nim Osat Talukdars to recover the amount he had paid on their behalf to satisfy the landlord's decree. He obtained a decree and in execution of it some property belonging exclusively to the plaintiff was sold for Rs. 1,033. The plaintiff, therefore, sued defendants 1-3, defendants 5-6 and defendant 4 to recover from each set of defendants 1/4 share of the sum of Rs. 1,033 with interest thereon. It appears that the decree-holder Somoraddi's debts were not fully satisfied by the sale of the plaintiff's property. Some time after, defendant 4 paid the outstanding amount in another execution case to the decree-holder and thus squared up the liabilities of the defendants under the decree. The different sets of defendants raised various objections in the plaintiff's suit for contribution, some of which will be noticed later. During the pendency of the suit the plaintiff and defendants 1-3 entered into a compromise and thus they (defendants 1-3) went out of the suit. The Munsif in the trial Court gave a decree for Rs. 350-14-8 against defendants 5 and 6 and for the same amount against defendant 4. This amount was arrived at by calculating the 1/4 share of each set of defendants in the sum of Rs. 1,033 realized from the plaintiff alone with interest at the rate of 12 per cent per annum. Defendant 4 appealed and the learned Subordinate Judge dismissed the plaintiff's suit against defendant 4 but passed a further decree against defendants 5 and 6 for Rs. 116-15-6. It should be noted that in the appeal by defendant 4 defendants 5 and 6 were not made respondents.

(2.) These two appeals are by the plaintiff and defendants 5 and 6. We will first deal with the plaintiff's appeal which is No. 1398 of 1926. It is argued on his behalf that as he paid the amount which was payable by all the defendants, he is entitled to a decree against defendant 4 also. It is submitted on behalf of defendant 4 that as he has paid his dues in full to the decree-holder, he is not liable to contribute towards the amount realized from the plaintiff. Now the claim for contribution is based on principles of equity and the Court must take an equitable view in the circumstances of each case and decide according to principles of equity and adjust the rights of the parties in accordance with rules consistent with justice, equity and good conscience: Magniram V/s. Mehdi Hossain Khan [1904] 31 Cal. 95. The right to contribution though an equitable right arises out of an implied contract of indemnity between the parties liable for the same debt. This contractual obligation attaches to each of the persons liable to satisfy the common debt. But this right is not confined to Ss, 69 and 70, Contraot Act, but may be based upon other equitable considerations and these considerations are available as much to the plaintiff as to the defendants. Registered Jessor Loan Co. Ltd. V/s. Gopal Hari A.I.R. 1926 Cal which is authority further for the view that all difference between the parties should be settled and adjusted in one suit.

(3.) In Matungini Debi V/s. Brojeswari Banerji [1914] 20 C.L.J. 205 it was held among other things that no contribution can be levied against a person who has paid more than his share of the debt. In adjusting the rights of the parties in a suit for contribution the attention of the Court is not to be limited by the liabilities arising from the claim in the suit but in adjusting the equitable rights of the parties to the suit it may go beyond the scope of the suit and enquire into other mutual liabilities. In Gogun Chand Butt V/s. Huri Mohan Dutt [1883] 12 C.L.R. 539 the suit was brought by the plaintiff for contribution against the defendant on the ground that he had paid rent in excess of his share under a claim which he and the defendant were jointly liable to satisfy. In that case the defendant proved that he had paid the whole rent similarly on previous occasions and such payments were taken into consideration in adjusting the rights of the parties without the defendants pleading a set off. In. Gajadhar Mahto V/s. Raghubar Gope [1908] 12 C.W.N. 60, in a suit for contribution by a cosharer for a certain sum of money paid on behalf of his other cosharer to discharge a decree for rent obtained against them jointly, the defendant claimed a set off on account of previous payments by him under similar decrees for joint debts. The Court upheld the plea and the defendant was allowed to prove payments on behalf of the plaintiff on other occasions and further it held that in such cases no question of limitation arose. That being the law we have to consider how the rights of the different parties in this suit can be adjusted in justice, equity and good conscience.