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Darbari Lal Vs. Damodar Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1929All792; 122Ind.Cas.687
AppellantDarbari Lal
RespondentDamodar Das
Cases ReferredNand Lal Singh v. Beni Madho Singh
Excerpt:
limitation act (ix of 1908), schedule i, article 99 - suit for contribution--limitation--starting point--date of payment in excess of plaintiff's share--contribution between joint tort-feasors. - - the suit is, therefore, clearly within the period of limitation......in that case the facts were that the plaintiff was in possession wrongfully of a half share of property under a deed of gift, and that the defendant was in independent possession of the other half share of property under an entirely separate dead of gift. accordingly, it was held that the plaintiff could not recover the share of costs from the defendant, which he paid under the decree, although the costs were jointly against both parties. in the present case the facts are entirely different, because the plaintiff and defendant were both in possession under the same thikanama, and accordingly, the decree was passed jointly against the plaintiff and defendant, in accordance with their shares under that thikanama. we consider that the decree of the lower appellate court is.....
Judgment:

1. This is a second appeal by the defendant against a decree of the lower appellate Court awarding the plaintiff one-third share of a sum of money, which he had paid under a decree, on the ground that the defendant was bound to contribute that one-third as a joint judgment-debtor along with the plaintiff. The facts are that the plaintiff and defendant were thikadars of certain zamindari property under a thikanama executed in favour of both of them, and subsequently reversioners of the executant sued the plaintiff and defendant for possession of the property and mesne profits, and on 31st March 1920, a decree was passed to the extent of one-third against the defendant and two-thirds against the plaintiff for mesne profits, interest and costs, amounting to Rs. 6,797-11-8 It has been found as a fact by the lower appellate Court that by 1st October 1923, the plaintiff had paid Rs. 2,400, and that between 1st August 1926 and 18th February 1927 the plaintiff paid Rs. 2,198-13-10 on this decree. Defendant has paid nothing. The first argument addressed to us was that limitation applied, because the first payment of Rs. 2,400 was more than three years beyond the date on which the suit was brought. But the plaintiff was bound to pay two-thirds of the total decretal amount, and the first payment of Rs. 2,400 was not in excess of his share of the total amount of decree total amount which was eventually paid. We consider that the cause of action to the plaintiff arose between 1st August 1926 and 18th February 19.47, when he paid the sum of Rs. 2,198 odd, and that period is within three years from the date of the suit and, therefore, within limitation, according to Article 99, Lim. Act. Time runs, according to that article, from the date of payment in excess of the plaintiff's own share. The suit is, therefore, clearly within the period of limitation. The next point argued was that under Order 21, Rule 16 proviso, a decree should not be executed against the defendant and, therefore, the defendant has no liability. This article does not apply to the facts of the present case, because there was no transfer of the decree to either of the judgment-debtors. It has been found by the lower appellate Court that there was a transfer of the half share of the decree owned by Raghunandan to one Brindaban, who was a relative of the plaintiff; but that transfer does not amount to a transfer to a judgment-debtor. The next point argued was that the plaintiff and defendant being joint tort-feasors, no suit for contribution would lie between them. The authority for this proposition on which the learned Counsel for the appellant relied, was Nand Lal Singh v. Beni Madho Singh [1918] 40 All. 672. That case states that contribution was not allowed, because that case was not one of joint tort-feasors. In that case the facts were that the plaintiff was in possession wrongfully of a half share of property under a deed of gift, and that the defendant was in independent possession of the other half share of property under an entirely separate dead of gift. Accordingly, it was held that the plaintiff could not recover the share of costs from the defendant, which he paid under the decree, although the costs were jointly against both parties. In the present case the facts are entirely different, because the plaintiff and defendant were both in possession under the same thikanama, and accordingly, the decree was passed jointly against the plaintiff and defendant, in accordance with their shares under that thikanama. We consider that the decree of the lower appellate Court is correct and we accordingly dismiss this appeal under Order 41, Rule 11.


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