1. This is an application in revision against the order of the Judge, Small Cause Court of Aligarh, in a suit for contribution for costs. One Mohammad Zafar Husain Khan borrowed Rs. 47,000 on foot of a simple mortgage from the parties to this revision and their predecessors-in-interest. Rs. 42,000 were taken from Nawal Kishore, defendant, and Mt. Genda Kuer, deceased, predecessor, in-interest of Ram Kishore, defendant, and Rs. 5000 from Shiam Lal, plaintiff, and his deceased brother Gulab Rai. A suit was brought on this mortgage. A decree was passed on it and the mortgaged property was put to sale. Thereafter one Ruqya Begum with some others brought a declaratory suit claiming that half the mortgaged property was hers and was not liable to attachment and sale. The parties to this case were defendants in that suit for a declaration. The suit was eventually decreed and costs were awarded to Mt. Ruqya Begum and others from the defendants in that case. These costs were realized solely from Shiam Lal, plaintiff, who paid the money under protest and then brought a suit for contribution against Nawal Kishore and Ram Kishore. Shiam Lai's case was that he was liable to pay costs only to the extent of his interest in the property for which Mt. Ruqya Begum and others had sued, and the opposite parties Nawal Kishore and Ram Kishore were liable to pay to the extent of their interest. The learned Judge of the Small Cause Court however held that each of the parties was jointly and equally liable.
2. On behalf of the applicant Shiam Lal, it is contended that the learned Judge of Small Causes was in error in holding the applicant to be equally liable with the defendants, because the extent of the interest of the applicant in the property for which Mt. Ruqya Begum had sued was only 5/47. In support of his argument learned Counsel has referred to the cases reported in Kisto Coomar Chowdhary v. Anund Moyee (1867) 7 W.R. 300, Shaikh Murdan Ali v. Shaikh Tufuzzul Hoosein (1871) 16 W.R. 78 and Obhoy Kunt Lahoree v. Ram Soonduree (1873) 20 W.R. 209. On behalf of the opposite party it is argued that these cases were cases of possession of property and a different principle would apply to a case like the present. In my judgment however, the same-principle would apply in the present case. If instead of the mortgage having been a. simple one, the mortgagees had been in possession of the property and Mt. Ruqya Begum had sued for possession and half the-property had gone out of the possession of the mortgagees, the interest of the parties which would have been affected would have been the same as now. By the declaration having been granted to Mt. Ruqya. Begum, half the mortgaged property has ceased to become available to the parties and in that half the interest of the plaintiff, applicant is only 5/47 and that of the-opposite parties 42/47. I think therefore that in equity costs should have been contributed by the parties in proportion to their interest in the property affected by the suit of Mt. Ruqya Begum.
3. For these reasons, I allow this application in revision with costs and order that the claim of the plaintiff in the lower Court be decreed not to the extent of 1/2 but to the extent of 42/47 with proportionate costs. Interest was not allowed by the trial Court and is therefore not allowed; to the applicant.