GOPINATH Vs. RAGHUBANSH KUMAR SINGH

JUDGEMENT

(1.) It is advisable at the outset to state the material facts which have led to the prosecution of this appeal.

(2.) Babu Kamla Prasad, defendant 5, had executed a mortgage bond on 24th January 192 1 in favour of Mt. Jamuna Kuer with respect to 16 annas milkiat of touzi No. 9053 and 5 pies mokarrari interest of village Kurma Petari. On 9th November 1922, defendant 5 executed a mortgage bond in favour of defendant 1 for a sum of Rs. 1700 as regards 4 annas milkiat of touzi No. 9053 and 5 pies mokarrari share of Kurma Petari. Subsequently defendant 5 executed a usufructuary mortgage bond with respect to 2.86 acres of balcasht land of Dhanwan Santipur in favour of defendants 3 and 4. On 1 May 1931 defendant 1 obtained a mortgage decree on the bond of 1922 and in execution thereof purchased annas milkiat interest and 5 pies mokarrari share of defendant 5. Babu Lal Singh, father of plaintiffs 1 to 5, had meanwhile obtained a money decree against defendant 5 in exeoution of which he purchased 16 annas milkiat interest of touzi No. 9053. Thereafter the heirs of Mt. Jamuna Kuer brought a suit on the first mortgage impleading the plaintiffs and defendants and obtained a mortgage decree. When the decree was being executed the plaintiffs paid up the entire decretal amount of Rs. 3860 and averted the sale of the mortgaged properties inclusive of the share of defendants 1 to 4. The plaintiffs hence claimed contribution of Rs. 1687 and odd from defendants 1 and 2 and Rs. 434 and odd from defendants 3 and 4 together with interest in each case. Defendants 1 and 2 contested the suit on the ground that they were not liable to contribute as the plaintiffs paid the decretal amount merely to save their own interest. Defendants 3 and i asserted that the bakashat land mortgaged to them was not included in the mortgage decree obtained by the heirs of Mt. Jamuna Kuer and so they were not liable to pay any share of the mortgage amount. On these rival contentions, both the lower Courts have held that the bakashat land mortgaged to defendants 8 and 4 was subject to the prior mortgage of Mt. Jamuna Kuer, that all the defendants were liable to reimburse their share of the decretal amount due to Mt. Jamuna Kuer.

(3.) The question for decision in this appeal is whether the plaintffs are entitled to a decree for contribution against defendants 1 and 2; there is no appeal by defendants 3 and 4.