MAHENDRA NATH KAMILYA Vs. KHETRA MOHAN BERA

JUDGEMENT

(1.) This appeal arises out of a suit for contribution. A mortgage was executed by one Joy Jana, father of defendant 8, in 1305 in respect of a certain property. Portions of this property were sold at various times to various persona among them being plaintiff and defendants 1 and 2. The mortgagee brought a suit for the realization of the money and the property was put to sale. The plaintiff deposited the mortgage money, saved the property and brought this suit for contribution.

(2.) The defendants adduced various pleas in defence. The first Court decreed the suit for various amounts against defendants 1 to 6. On appeal to the District Court it was held that the suit was barred by limitation, that the suit was bad for nonjoinder of one Akhil Seal and, that further there was no evidence to show the value of the different pieces of land, and so the plaintiff could not succeed. That Court allowed the appeal and dismissed the suit. The plaintiff has appealed to this Court. The respondent has raised a preliminary objection that no appeal lies. His contention is that Section 102, Civil P.C., is a bar as the suit is of the nature cognizable by the Court of Small Causes, etc., below the value of Rs. 500. Admittedly the suit is below the value of Rs. 500 and the only question then to be decided is whether the present suit is a suit of the nature cognizable by a Court of Small Causes. Section 15, Small Cause Courts Act, provides that a Court of Small Causes shall not take cognizance of the suits specified in Schedule 2 of the Act and that all other suits of which the value shall not exceed Rs. 500 shall be cognizable by such Courts.

(3.) A suit for contribution is ordinarily cognizable by a Small Cause Court. The suits for contribution over which the Small Cause Court has no jurisdiction are those specified in Articles 41 and 42, Schedule 2, or possibly under Art. 44. Bisva Nath Shah V/s. Naba Kumar Chowdhury [1888] 15 Cal. 713. The present suit does not, as far as I can see, fall under Art. 41.