Straight and Brodhurst, JJ.
1. On the 16th September 1880, Hingu Lal and others sued,--(1) Kishna Ram, plaintiff in the present suit, (2) Rai Rakmini Sawak Singh, (3) Musammat Ati Kuar, (4) Musammat Rajuat Kuar, for declaration of their right as auction-purchasers at sale in execution of a decree obtained by them on the 12th March 1874, upon a bond made in their favour by one Ajudhia Prasad Singh, ancestor and manager of the joint property of himself and Rai Rakmini Sewak Singh, Musammat Ati Kuar, and Musammat Rajuat Kuar. On the 28th August 1874, Kishna Ram, plaintiff in the present suit, got a decree on a bond made in his favour by Ajudhia Prasad Singh, Nar-singh Sewak, Musammat Ati Kuar, and Musammat Rajuat Kuar, and, in execution, advertized for sale four of the immoveable properties which Hingu Lal and others had bought in execution of their decree. Consequently these latter persons objected in the execution department, but their objections were disallowed on the 17th September 1879; and it being held that only the right of Ajudhia Prasad Singh had been brought to sale and passed to them at the sale under the decree of the 12th of March 1874, Kishna Ram was allowed to sell two-thirds, which represented the interests of Musammats Ati Kuar and Rajuat Kuar. It was upon the basis of these last-mentioned facts and certain action taken by Musammats Ati Kuar and Rajuat Kuar in the mutation of names department that Hingu Lal and others brought the suit of the 16th September 1880. Their claim was decreed by the Subordinate Judge of Azamgarh, and his decree, with a modification upon the matter of costs, was upheld by this Court. In the result, Kishna Ram was compelled to pay the whole of the costs, amounting to Rs. 822-5, and he now sues--(1) Rakmini Sewak Singh for himself and as heir of Musammat Ati Kuar, (2) Rai Narsingh Sewak, and (3) Ramanuj Sewak, in the character of heirs of Ati Kuar, for two-thirds of that amount, namely, Rs. 548-3-4 and interest Rs. 101-11-8, or in all Rs. 649-15.
2. The only objections with which we need concern ourselves in appeal that were taken by the defendants were--first, that the claim against the defendants bad been misjoined, looking to the terms of Rule b of Section 44 of the Civil Procedure Code; and secondly, that Kishna Ram and the defendants having been joint tort-feasors in respect of the matters out of which the suit of Hingu Lal and others, and in which the costs were recovered, arose, he could not require a contribution from them. The first Court found for the defendants on the plea of misjoinder, but did not specifically dispose of the other questions, and dismissed the suit. The plaintiffs appealed, and the Judge disposed of the case in these terms: 'In this Court the decree in the former suit has been produced, and as it turns out to have been, as defendants say, for trespass, plaintiff' cannot obtain contribution. Besides this, I agree with the lower Court that there is misjoinder of defendants.' This is a very summary and far from satisfactory method of dealing with two difficult legal questions, and it has not unnaturally led to an appeal to this Court. The first point to be determined is whether the suit, upon the facts we have stated, lies; and next, if it does, whether it is bad for misjoinder. With regard to the former of these two questions, it is, no doubt, a well-known legal truism that 'no action for contribution is maintainable by one wrong-doer against another, although the one who claims contribution may have been compelled to satisfy the whole damages arising from the tort committed by them both.'-- Merryweather v. Nixan, 2 Smith's L. C. 5th ed. p. 456. But this rule has this limitation, that it 'is confined to cases where the persons seeking redress must be presumed to have known that he was doing an unlawful act.'--Best, C. J., in Adamson v. Jervis, 4 Bing. 66. A case which illustrates the method in which the principle is to be applied is that of Dixon v. Fawcus, 30 L. J. Q. B. 137, a reference to which is to be found on page 170 of Smith's L. C. Adapting it to the circumstances of the present case, it is obvious that there is no evidence to show that the plaintiff, in attaching and advertizing the four villages for sale in execution of his decree against Ajudhia Prasad, knew he was doing an illegal act--indeed, the inferences are all the other way. Consequently be was, in our opinion, fully entitled in law to maintain the present suit, and to recover from the defendants the proportionate amount of the costs which he had to pay for them--Suput Singh v. Imrit Tewari I. L. R., 5 Cal. 720. In using the term defendants, we mean as against Rakmini Sewak personally and as heir of Ati Kuar, and against Narsingh Sewak and Ramanuj Sewak as heirs of Ati Kuar.
3. As to the second question, even if there was misjoinder of parties, the Munsif, having proceeded to trial of the suit, and not having rejected the plaint or returned it for amendment, or amended it, should have disposed of it upon the merits, and found what Ati Kuar's share in the amount paid by the plaintiff was, and whether assets to that amount had come to the hands of the defendants as her heirs. As the learned Judge in appeal eventually disposed of the case on a preliminary point, we remand it to him under Section 562 of the Code for determination on the merits with advertence to our remarks. Costs will be costs in the cause.