1. This is an appeal by the plaintiff Shankerlal in a suit for contribution.
2. The facts leading up to this appeal may be shortly stated as follows. There was a house belonging to Parakh Motichand Govinddas situate in Udaipur City. The ancestors of the plaintiff Shankerlal and defendants respondents Motilal and Pannalal had agreed to purchase this house for Rs. 19,999/- from the Parakhs on Maha Sudi 14 Sm. 1945. They wanted to back out of this agreement and this led to a suit by the Parakhs against the ancestors of the present parties with the result that a decree was passed in favour of the Parakhs against the ancestors of the plaintiff and the defendants respondents for a sum of Rs. 19,999/-. This decree is dated the 12-7-1892. According to the practice which was in force in the former State of Mewar, this decree was affirmed by the Mehdraj Sabha on the 8-4-1896, and finally confirmed by His Highness the Maharana of Udaipur on the 31-8-1896. The decree-holders took out execution of this decree, but the precise details before 1937 are not known and they are not material for the purposes of the present appeal. What is material is that the decree-holders sold their decree for Rs. 15000/- to one Roshanlal Chatur and his relations on the 10-1-1937, and consequently the assignees were brought on the record in place of the original decree-holders, namely, the Parakhs. Then the execution court sent the case up to the Mehdraj Sabha for sanction to auction the house in question as the judgment-debtors were not paid the decretal amount. What happened in the Mehdraj Sabha then has led to the present litigation. The assignees of the decree as well as the plaintiff's father Tansukhlal and the present respondents were represented before the Mehdraj Sabha on the 28-11-1937. It was stated by Motilal's Vakil Shri Arjun-lal Mehta and by Pannalal before the Mehdraj Sabha that they did not want to have the house any more and that if Tansukhlal (father of the present plaintiff Shankerlal) alone wanted to have the house he could take it. It was further stated that they also did not claim any compensation from the decree-holders. I may pause to point out here that it appears that as the possession of the house still remained with the decree-holders and their assignees throughout all these years, a contention had been raised on behalf of the judgment-debtors that the house had suffered considerable deterioration at the hands of the former and that they were entitled to receive compensation from them (i.e., the decree-holders of their assignees). It was finally prayed that if the decree-holders were prepared not to levy execution against them, then they (the two judgment-debtors) would be prepared not to ask for possession of the house. Mano-harlal, the Aam-mukhtar of the assignees, also gave his statement before the Mehdraj Sabha the effect of which is that the assignees had no objection if liability for the execution of the entire decree were to rest on Tansukhlal alone and the other two judgment-debtors were to be let off. It is remarkable that although Tansukhlal was present before' the Mehdraj Sabha, his statement was not recorded which has led to a good deal of trouble. The position of the plaintiff is that Tansukhlal had not undertaken the entire responsibility for the execution of the decree expressly or impliedly whereasthe contention of the defendants is that although Tansukhlal had not expressly undertaken such a liability, he had impliedly assumed full responsibility for the satisfaction of the decree. Be that as it may, the Mehdraj Sakha passed an order on the same day Ex. p-4 in which reference is made to the statements referred to above on behalf of the decree-holder assignee and the judgment-debtors Pannalal and Motilal, and it is also said that the decree-holder was prepared to give possession of the house; and, therefore, the following further directions were given:
'In this state of affairs if Tansukhlal do pay the decretal amount within six months, possession of the house should be made over to him in execution. But if this is not done within the time fixed, then the house be put to auction according to law as suggested by the court below.'
The order further went on to say that Tansukhlal judgment-debtor is hereby given the power to mortgage or sell the house in ordar to pay off the decretal amount and that possession be handed over to him after the money is paid to the decree-holder. Lastly it was ordered that Tansukhlal's objection was that he had been put to loss on account of the possession of the house not having been delivered to him and that such loss be paid to him but an inquiry into this will lead to lot of complications: and, therefore, he is permitted to file a suit with regard tq that if he has really suffered any damage. It appears that Tansukhlal was not satisfied with this order and he reserved his right to file his objections against it. He did file an objection soon after on the 21-12-1937, in which he complained that the possession of the house be given to him immediately and that his claim for damages should have also been gone into, and that there was a prosepective purchaser who was prepared to purchase the house but only if it was clarified by the court that the sale would not be subject to any right of pre-emption by anybody and that the purchaser could purchase the house be he of any caste or community and that the condition that Tansukhlal pay the money within six months was also unjust because he had a claim for compensation and that had not been gone into or decreed and lastly that he had not been granted full opportunity of hearing and that if the same had been granted to him, such an order would not have been passed. It is not known what orders were passed by the Mehdraj Sabha on this application. This much is certain, however, that there is nothing to show that Tansukhlal's Prayers had been accented. The matter then went to the district court which was the executing court and there Tansukhlal made another application on the 23-1-1938. Briefly put, the contention raised by Tansukhlal in this application was that he was liable to pay only 1/3rd of the decretal amount and was entitled in lieu thereof to get 1/3rd of the house and that he was prepared to execute the decree in that manner but ho also repeated his claim for compensation and prayed that the matter be decided in these very proceedings. This application was rejected by the District Judge and the matter went finally In appeal to the Ijlas-i-Khas of the Mehdraj Sabha. The appeal was dismissed by saying that there was one and indivisible decree in which the shares of the judgment-debtors had not been specified, and that the direction already given to Tansukhlal that he could file a separate suit for damages, if any, was Quite correct and did not call for any interference at that stage.
The order further provided that it was open to any of the judgment-debtors to give up their claim as regards the house and further that if the decretal amount were to be realised from Tansukhlalalone, then it was for him to claim contribution from the other two judgment-debtors or not. This order was passed on the 31-8-1938. Tansukhlal did not pay the decretal amount and so the house was put to auction for a sum of Rs. 13100/- and this was in due course paid to Roshankl Chatur. It also appears that some time before 1945 (the exact date cannot be ascertained) a sum of Rs. 513/- was also made over to the assignee decree-holders. This was the 1/3rd portion of the total amount of a decree for Rs. 1639/- which the judgment-debtors, that is, the parties to the present suit held against the jagirdar of Keria. The decree-holders wanted to seize the entire amount and this was allowed by the execution court but on appeal it was held that as the decree-holders had released the two judgment-debtors, namely, the present defendants respondents, they could proceed only against the remaining 173rd share belonging to Tansukhlal, and, consequently, this sum representing his 1/3rd share only was paid to the decree-holders. As regards the balance of the decretal amount the decree-holders levied execution against Tansukhlal's son the present plaintiff (Tansukhlal having died in the meantime) and recovered the sum of Rs 6387/- from him on the 19-12-1945. The plaintiff's contention is that the decree of the Parakhs against the parties was joint and several and that as he had alone satisfied that to the extent of Rs. 6899/- the defendants respondents were liable to contribute 2/3rds of the amount paid by him to the assignees of the original decree-holders, which they had not paid, and, therefore, he was entitled to receive from them 2/3rds of Rs. 6899/- i.e., a sum pf Rs. 459975/4. He has consequently filed the present suit for the aforesaid amount.
3. The defendants admitted that the Parakhs held a decree against the common ancestors of the parties but they resisted the suit by saying that the plaintiff's father Tansukhlal had undertaken to take the house by himself and also to pay off the entire decree, and, therefore, the defendants stood absolved from all liability under the decree and the plaintiff had no valid claim for contribution against them. The defendants also contended that the plaintiff need not have paid the full amount to the assignees of the original decree-holders inasmuch as the latter had absolved the defendants from all responsibility under the decree. The only other point of substance which need be mentioned at this date is the further contention of the defendants that the claim for contribution made by the plaintiff as regards the sum of Rs. 513/- out of the decree held against the jagir of Keria is barred by limitation.
4. The trial court dismissed the plaintiff's suit. The plaintiff went in appeal to the learned District Judge, Udaipur, who also maintained the decree of the trial court. This second appeal has consequently been filed against the above judgment and decree.
5. The first and the foremost point for determination in this appeal is whether Tansukhlal, plaintiff's father, had undertaken sole responsibility to pay off the decree in question and whether the defendants Motilal and Pannalal had been completely released by the decree-holder with the consent of Tansukhlal. A preliminary objection was raised on behalf of the defendants that this was a question of fact and the finding of the two courts below which was against the plaintiff was binding on this Court and it was not open to any further challenge in this second appeal.
6. I have carefully considered this contention and have arrived at the opinion that it is without any force in the circumstances of the case.I do not propose to state my reasons for arrivingat this conclusion in detail at this place for theywill appear from the following portion of the judgment. I consider it sufficient to state here that thefinding arrived at by the courts below is principallybased upon the interpretation of the order of Mehd-raj Sabha dated the 28-11-1937, and certain applications filed by Tansukhial thereafter, namely, Exs.D-2 and D-7, and, therefore, the question is not aquestion of pure fact. I may also add that thefinding is based to a certain extent upon oral evidence led on behalf of the defendants but I regretto have to say that the learned Judge of the lowerappellate court has not taken the trouble of coming to grips with that evidence, and on this account also his finding stands vitiated in my judgment.
7. Turning to the merits of the question propounded above, certain facts stand out and may be briefly summarized here. A fact of considerable importance is that Tansukhial never expressly agreed,--this is conceded before me on behalf of the defts, respondents, -- to assume responsibility for the execution of the entire decree. A statement Ex. D-2 was made before the Mehdraj Sabha on behalf of the two defendants that they did not want the house and that if (the word 'if' is significant) Thansukhlal alone wanted to have it, he was welcome to doing so. So far as they were concerned, they stated that they did not want any compensation and that if the assignees decree-holders were prepared not to levy execution against them, they on their side would forego all claims to the house. Manohar Lal on behalf of the assignees clearly said that if the judgment-debtors Motilal and Pannalal wish that they be released from responsibility for satisfying the decree and that the further responsibi-lity for executing the decree may remain on Tansukhlal, the assigness would have no objection to that arrangement. The entire difficulty has been created in this case because there is nothing to show that Tansukhial accepted any such exclusive responsibility which the other two judgment-debtors on the one side and the decree-holder on the other side had agreed to place on him. It seems to me that unless Tansukhial had accepted such a liability it would not be fair to hold that he was bound by such an arrangement. The learned District Judge while dealing with this question has stated that the failure of any writing on the part of Tansukhial expressing his agreement with this arrangement was not a material factor as
'they were good olden days when the Civil Procedure Code was not in force in Mewar and everything was not reduced to writing.'
I regret I cannot concur in this view, the simple reason being that there was nothing intricate which was required to be done and which the court which was in charge of the case, did not know. In fact, the matter is one of simple common-sense, and there can be no getting away from the position that the Mehdraj Sabha did record the statements of three out of four parties concerned. It was the statement of Tansukhial alone which was not recorded and the absence of that statement cannot be attributed either to the fact that the Civil Procedure Code was not in force or that the court was not aware of the necessity of reducing to writing the consent of the parties to the arrangement which was put forward before it. It appears to me that Tansukhial was not prepared to agree to any compromise either between himself and the decree-holders or between the judgment-debtors inter se, and that was the chief reason why he did not either make any application in writing expressing his consent or was even not willing to have his statement recorded expressing his consentwith what was being done. In fact it appears that he expressed distinctly that he had his objections to the arrangements ordered and he also subsequently came forward with certain objections. The defendants respondents do not seriously contest the position that Tansukhlal had not expressly agreed to this arrangement but what is urged on their behalf is that even though Tansukhlal had not expressly consented to this arrangement, he had by implication, accepted the same, and therefore, he or his successors-in-interest could not be allowed to resile from that arrangement. The next point, therefore, to consider is whether that is so. Great stress was laid before me on behalf of the defendants respondents on the application of Tansukhial, which he filed on the 21-12-1937. before the Mehdraj Sabha. It is contended that Tansukhial raised a number of objections in this application to the order passed by the Mehdraj Sabha but he did not raise the objection therein that he had never agreed that the other two judgment-debtors be absolved or that he had never agreed to assume sole responsibility to satisfy the decree. This is true so far as it goes but, in my opinion, it does not go the whole way. From the manner in which Ex. D-2 was worded, and I have read it more than once, it does not appear to me that it was the writing of a person who had agreed to absolve the other two judgment-debtors so far aa he was concerned or to assume full responsibility for the satisfaction of the decree. It seems to me that Tansukhial was a rather cantankerous person who somehow thought that he had a good case against the decree-holders and their assignees for compensation and that until they paid that claim they had no right to ask him to pay the money of the decree. The other judgment-debtors, let it be noted, were softer and more reasonable persons and they were prepared to make peace with the decree-holders and so the former were prepared to come to an arrangement with the latter that if they (i. e., the decree-holders) did not press for execution against them, they on their side were prepared to give up their claim for damages. Tansukhial, to my mind, was not willing to accept such an arrangement so far as he was concerned because if that was so, the whole matter would have been settled up in a moment, and Tansukhlal would not have had to pay anything and the decree-holders seem to me to have been at that time in the mood to retain the house because if they were not there is no reason why they should have absolved these two judgment-debtors from their responsibility under the decree. So far as the learned Judges of the Mehdraj Sabha are concerned, they seem to have thought that it was better to accept the arrangement in so far as it went, and in that state of affairs they passed an additional order saying that if Tansukhlal paid the entire amount of the decree, he should get the house, which was indeed a harmless direction but that in my opinion, did not amount to giving a direction that Tansukhial was thereafter to be solely responsible for the execution of the decree. What the Mehdraj Sabha proceeded to say thereafter was only by way of giving a certain amount of facility to Tansukhlal in order to enable him to pay the amount, namely, that he could, if he wished, sell the house or mortgage it, but, obviously, there was nothing very much in this facility because it would be difficult for any body to find a purchaser or mortgagee of a house where the mortgagor or the vendor had himself no possession. Then the Mehdraj Sabha further said that if Tansukhlal failed to pay the amount within a period of six months, the house would be put to auction. Here also they did not say what was to happen if the price fetched by the house at theauction fell short of the decretal amount and who was to pay the balance. So far as this order is concerned, I find it very difficult to interpret it in such a way that it puts the full responsibility for satisfying the decree upon Tansukhlal alone. Nor am I able to hold that Tansukhial had behaved before the Mehdraj Sabha in a manner for which his consent to the arrangement set forth above could be at all implied, much less necessarily.
8. Then we come to Ex. D-2 upon which considerable stress was laid before me on behalf of the defendants respondents. I do not consider it necessary to reproduce it in the course of this judgment because, in my opinion, that would bo entirely useless. A perusal of this document shows that it was the outcome of a brain which was at war with the entire world. The only thing that Tansukhlal did not mention in it was that he had not agreed to absolve the other two judgment-debtors from the decree or that he had never undertaken to assume the sole responsibility for its satisfaction. But it is suggested as to this by learned counsel for the appellant that the order of Mehdraj Sabha, which Tansukhial was petitioning against, had never said that Tansukhial had agreed to this arrangement, and, therefore it was scarcely necessary for him to have made this point specific. The only other portion of this document upon which an argument of implied consent was founded was that at the end of paragraph 4 of his application Tan-Gukhlal stated that the possession of the house should have been handed over to him because the owner of the house was Tansukhlal and not Roshanial Chatur etc. Too much however, should not be read out of this statement because what Tansukh wanted to say here was that the judgment-debtors and not the decree-holders were the owners of the house. It also deserves to be mentioned in this connection that if Tansukh was a consenting party to the arrangement arrived at between the decree-holders and the other two judgment-debtors, it should have been the simplest thing for him, or for the court to have recorded his statement to that effect which clearly was not done. Probably Tansukhial was a man who was prepared to ride two horses at one and the same time. He had never expressly or by necessary implication agreed to the arrangement that he would be solely responsible for the satisfaction of the decree on and after the 28-11-1937, and yet he was not willing to let his claim for compensation or damages go without being pressed and to get something out of it if he could. Whatever suspicion might be raised by Tansukhlal's application referred to above is, to my mind, greatly dispelled by his subsequent application Ex. P-7 dated the 23-1-1938. In this application he categorically stated that he was liable only to the extent of l/3rd share of the decree and to get only l/3rd share of the possession, of the house. It deserves to be noted that this application came to be made within less than a month of the former application. There is nothing to show that at that time a contention had been raised that Tansukhial had agreed to assume full responsibility for the satisfaction of the decree so far as the decree-holders were concerned. On the other hand, when the matter went up to the Ijlas-i-Khas of the Mehdraj Sabha, we find that the learned. Judges passed an order Ex. P-5 from a perusal of which it is quite clear that so far as the decree-holders were concerned, they would be within their rights to execute the decree from any one of the judgment-debtors and that so far as seme of the judgment-debtors were concerned, it was equally open to them, to give up their claims to the house, and further that if Tansukhial fell in the position of having to satisfy the entire decree for himself. It would be for him to choose whetherhe should lay a claim for contribution as against the other judgment-debtors or not. Here again I wish to point out that these observations would never have been made by the Mehdraj Sabha if the position really was that Tansukhial had alone assumed complete responsibility for the satisfaction of the decree. I have no doubt that if this was the real position, the decision of the Mehdraj Sabha would have been made on different lines and it would have been enough for them to say that there was no question of Tansukhial saying that he was liable to satisfy the decree only to the extent of one-third because Tansukhial had assumed full responsibility for the execution of the decree before the Mehdraj Sabha itself and he could not get round, that.
9. Having regard to all these circumstances, so far as these documents are concerned, I have arrived at the conclusion that the courts below have put a wrong construction upon them and that they do not disclose either an express or an implied consent on the part of Tansukhial to undertake full responsibility for the execution of the decree in question by himself or to absolve the other two-judgment-debtors from similar responsibility inter se.
10. I next come to the oral evidence. The-learned District Judge has relied in this connection on the evidence of D. W. Manqharlal Chatur and defendant Pannalal himself. As regards Chatur, the learned Judge has said that he was the accredited agent of Roshanial (an assignee of the decree-holder) before the Mehdraj Sabha on the 28-11-1937, and he swears that Tansukhial had agreed to the proposal that he would pay off singly the dec-retal amount and would in return get the exclusive possession of the house. As regards Pannaial all he (the District Judge) says is that he also affirmed on oath that the compromise exonerating him and Motilal was effected on the 28-11-1937, before the Mehdraj Sabha on the understanding given by Tansukhial that he would singly pay the entire decretal amount; and in return obtain and retain the exclusive possession of the house. I regret to have to say that the learned District Judge has not cared to assess the evidence of these witnesses at all critically. It appears from the statement of D W. Manoharlal Chatur that besides being the aam-mukhtar of Roshanial Chatur, assignee of the decree-holder, he is one of the assignees himself being Roshanlal's son.
He admitted to have given the statement before the Mehdraj Sabha which has already been reproduced above. It is obvious that that statement does not make any mention of Tansukhlal's agreement. Yet in his statement in court, his testimony is that Tansukhial had said that he would take the house and pay the money, a position which is conspicuous by its absence in his statement. It is remarkable that even though, according to this witness, the assignee decree-holders as well as all the judgment-debtors had come to an understanding that the sole responsibility for the execution of the decree would henceforward lie on Tansukhial, still he was responsible for levying execution against the total decretal amount of the judgment-debtors against the jagirdar of Keria. Again according to Manoharlal they had received only Rs. 1300/- from Tansukhial and in lieu thereof gave him a complete release whereas a sum of Rs. 6387/- was outstanding against him, although he admitted that a receipt for the full amount had been given. Now so far as this part of the evidence is concerned, it is completely falsified by the evidence of his father who was produced by the plaintiff. Roshanlal stated that he had received the entire sum of Rs. 6387/- from the plaintiff andhad given him a receipt for it. He also stated that this receipt had been written by his son Pratapmal and that he had signed it. He clearly stated that he had received the money in accordance with the receipt and that Shankarlal had paid the money to him. Curiously enough Manoharlal stated in his cross-examination that he had himself received the amount and that he and Shankarlal alone were present at the time and further that he had received this money in his office at Udaipur. He was, however, compelled to admit later that the money had been received by his father who was at Fatehnagar and that Shankarlal had gone to him and that his father had sent him the receipt and that he was not present at the time the money was received by his father. He was further asked whether the receipt was in the hand-writing of his brother Prakash Chandra or not and the witness reolied that he could not say whether that was so. I have no hesitation in saying that no reliance could be placed upon the oral word of such a witness as this. In his cross-examination he was also asked whether Tansukhlal's statement had been recorded before the Mehdraj Sabha on the 28-11-1937. He replied that he did not remember and yet his memory is very sharp in so far as he repeats what Tansukhlal had verbally stated to them, namely, that he agreed to accept full responsibility for the satisfaction of the decree. He further went on to state that Tansukhlal had himself made an application in which he expressed his consent to the arrangement which had been arrived at between the parties. Further cross-examined, he, however was unable to say what Tansukhlal had stated in that application. There is no doubt that this part of the witness' testimony is also a complete lie. In this state of his evidence, I have no hesitation in saying that this witness has no regard for truth and no reliance can be placed upon his testimony whatever.
11. The next witness relied upon by the learned District Judge is Pannalal. Pannalal is one of the two defendants in this case. He is naturally interested to shift the entire responsibility away from his own shoulders. Admittedly he was also present along with Manoharlal when the matter came up before the Mehdraj Sabha on the 28-11-1937. In his examination-in-chief this witness refers to the talk which took place, according to him, between all the parties concerned in accordance with which Manoharlal agreed to release Motilal and Pannalal (witness himself) and says that the statements of the decree-holder Motilal and Pannalal had been recorded. Pannalal further stated that Tansukhlal had also accepted this and made an application that he should be granted time for depositing the decretal amount and thereupon six months' time was granted to him but as Tansukhlal had not paid the amount, the house was auctioned. This witness also said that the plaintiff had paid only Rs. 1300/- to Roshanlal Chatur and obtained complete release for the decree, the total amount payable at that time being Rs. 6387/-. In his cross-examination this witness was also asked whether Tansukhlal's statement had been recorded before the Mehdraj Sabha or not. The statement of this witness that Tansukhlal had made an application on that very day expressing his concurrence in the arrangement by which sole responsibility for the execution of the decree had been placed upon him is nothing but a lie. Similarly the version of this witness that a sum of Rs. 1300/- only had been given by the plaintiff to Roshanlal Chatur is falsified by the testimony of Roshanlal himself as stated above and this witness has indulged in a lie when he has sworn to that being a fact. There is one more witness in this connection, namely, Ugarsingh. He was a relation of the parties and his version is that he was present in court in the Mehdraj Sabha when Tansukhlal stated that he alone would pay off the decretal, amount and have the house. It is sufficient to say, so far as this witness is concerned, that he is a chance witness and there was no occasion for him to be present in the Mehdraj Sabha at the relevant time. He said that he had been called in court to bring some articles but he was unable to say what were these articles and in which case they had been sent for. He was also compelled to admit that he had not participated in the talks between the parties although he was in the court-room for full one hour and that the parties were still in the court-room after he had left.
It is not understandable why this witness happened to be present in court and stayed therein for such a long time. Needless to say that it is the easiest thing to produce a witness of this type, but such evidence, in my opinion, does not go to prove anything. A survey of this oral evidence plainly shows that it is altogether insufficient to establish that Tansukhlal had expressed his consent in court to undertake full responsibility for the satisfaction of the decree and to absolve the other two judgment-debtors so far as their liability inter se was concerned. This evidence is all false and manufactured and it appears to me that Tansukhlal had not expressed any desire to undertake full responsibility as alleged, because, if he had done so, it would have been the easiest thing for his statement to have been recorded to that effect, and the learned Judges of the Mehdraj Sabha would not have failed to record the statement as they did in the case of the other two judgment-debtors. The result is that I am unable to agree with the courts below that Tansukhlal had agreed to assume responsibility all by himself to satisfy the decree in question or that he had concurred in the arrangement made between the decree-holders and the defendants in the sense that they were to stand completely absolved from all liability for the satisfaction of the decree so far as the judgment-debtors inter se were concerned.
12. It was next contended that the above-mentioned conclusion does not take sufficient notice of the circumstance that the judgment-debtors had not merely to pay money but they were also entitled in lieu thereof to get possession of the house and that the defendants had surrendered that benefit altogether and so they could not be made liable for the payment of money, once they had given up their claim for the possession of the house. I have carefully examined this argument which, plausible as it is, has no force. The acceptance of this argument would mean this that some of the judgment-debtors by arriving at a settlement with the decree-holder may increase the liability of the remaining judgment-debtor, no matter that he is not a consenting party to such an arrangement. It is one thing that a party may surrender a benefit which would otherwise bs available to him. That is his own wish. But it is quite another to say that he can increase the burden upon another without his consent. He cannot, in my judgment, do that. The contention, therefore, that the defendants had given up their claim to the possession of the house cannot be allowed to be used as an argument for adding to the burden of the plaintiff. It would indeed have been a different matter if the plaintiff had consented to take the entire responsibility for the payment of the decretal amount; but as to that, I have already arrived at the conclusion that I amnot satisfied that the defendants have succeeded in establishing any such consent. Consequently I overrule this contention also.
13. The next question that arises is whether in such circumstances the plaintiff is legally entitled to claim any contribution from the defendant as regards the payment of Rs. 6387/- made by him. As to the factum of such payment having been made, it was not seriously challenged in this Court. Nor indeed could a legitimate challenge be raised in this second appeal about this inasmuch as the finding is one of pure fact and there is legal evidence on the record upon which such a finding could have been based by the courts below. Turning now to the legal aspect of the matter. I am of opinion that the decision depends upon the applicability of sections 43 and 44 of the Contract Act.
14. The material portion of section 43 is in these terms :
'When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.
Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.'
15. Section 44 reads as follows :
'Where two or more persons have made a joint promise, a release of one of such promisors by the promisee does not discharge the other joint promisor or joint promisors, neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.'
16. Applying these sections to the present case, it is clear that it was open to the decree-holders to have proceeded in execution against any of the judgment-debtors and executed the entire decree from him, for the decree was passed jointly and severally against all the judgment-debtors. The decree-holders were perfectly within their rights in having executed their decree for the balance of the decretal amount against the present plaintiff only. The position of the judgment-debtors as against the decree-holders is that of a promisor as against a promisee. When the decree was so satisfied by the plaintiff alone a right arose in him to compel the other two judgment-debtors namely the present defendants to contribute equally with himself to the performance of the decree (unless of course a contrary intention appears of Which there is no satisfactory proof in this case as already held above.) In other words, the law permits the plaintiff in such a case to file a suit for contribution against those who were, like him, liable to satisfy the decree. And this must be the position in law even if the promisee or the decree-holder has released one or more of the judgment-debtors because the persons so released are not freed from their responsibility towards the remaining joint promisors.
17. The underlying reason is that there are really two kinds of liabilities which must be kept distinct from each other. The first is a liability between the decree-holder and the judgment-debtors (whose liability is joint and several). The second is a collateral liability between the judgment-debtors themselves. These two liabilities are essentially independent of each other and the mere circumstance that the decree-holder has absolved some of the judgment-debtors' from the performance of the promise or that the liability of some of them towards the decree-holder is barred bytime or is otherwise unenforceable cannot have the effect of affecting their liability between themselves on the principle of contribution which is recognised in sections 42 to 44 of the Contract Act. This liability to contribute equally on the part of the co-promisors towards the performance of a joint and several promise appears to be primarily based upon an implied contract between the judgment-debtors themselves and although it is subject to contract to the contrary between the copromi-sors themselves, the promisee cannot by his unilateral act do anything to destroy it.
18. Let us examine the position in the light of a few decided cases. The first case to which reference may be made is Abraham v. Raphial, AIR 1915 Mad 675 (A). In that case there were two Joint promisors. The claim against one of them had become barred by limitation and was, therefore, dismissed and the other was made to pay the entire decretal amount. The latter then sued for contribution. The contention was raised that as the debt was held unrecoverable from the defendant directly, it would be entirely unjust that it should fall to be recovered from him indirectly, in consequence of some conduct of the plaintiff which the defendant did not authorise. This contention-was repelled and the right to contribute was given effect to. It was held that the duty to contribute was clearly distinct from the duty to pay to the promisee, and that the first duty was to the promisor and the second to) the promisee and the right of each joint promisor to claim indemnity did not consist merely of being subrogated to the right of the original promisee for though the promisee's rights may have been released, the responsibility of the Joint promisor was not annulled, and that the right of each joint promisor to com-Del every other joint promisor to contribute equally with himself to the performance of the promise was unaffected by the mode in which the promisee exercised or failed to exercise his rights. It was further held that an express release by the promisee could not have the effect of affecting the collateral liability between the Joint promisors themselves.
19. In Jankibai v. Rama Manaji, AIR 1948 Nag 292 (B), a joint decree was passed against A, B and C in favour of the decree-holders. B & C applied to the debt relief court for scaling down their debts Joining A as non-applicant. The decree-holders failed to comply with a certain direction and consequently their decretal debt as against B and C was discharged. Thereafter the ilecrce-holders realised the entire decretal amount from A. A then having filed a suit against B and C for contribution it was held that he was entitled to call upon B and C to contribute to the perfor-mance of the promise unaffected by the discharge in the Debt Relief Court, it was contended in this case that as the liability of B and C had been discharged as a result of the proceedings in the. Debt Relief Court, they were not liable to contribute anything to A even though he was required to satisfy the entire decretal amount. This contention was negatived, and it was held that the discharge operated merely between the decree-holders and the defendants who were discharged and that thereafter the decree-holders were disentitled to execute their decree against them. But this discharge could not affect the claim of A for contribution which arose in his favour on his sa tisfying the decree long after the relief proceedings because the liability of the defendants between themselves was different from the joint and several liability of each of them to the creditor and that this liability which was latent until any one of them satisfied the decretal amount became pa-tent and was enforceable against the other decree-holders who were in the position of joint promisors and that it was in no way affected by the discharge obtained by a joint promisor from the creditor either by an agreement or under the Relief Act.
20. The samel principle was upheld In Na-rendra Chandra v. Pashupati Nath, AIR 1949 Cal 242 (C). This was a suit for contribution between the plaintiff and the defendants who were co-sharer Patnidars under A. The executors of A on his death brought a suit for recovery of rent against the plaintiff and the defendants. This suit was decreed and the decree was executed against the plaintiff alone. Thereupon the plaintiff instituted a suit for contribution against all the defendants according to their shares in the patni. This suit was decreed against all the defendants except two on the ground that the decree was unexecutable against them and, therefore, they were not liable to contribute. On appea] it was held, relying on sections 42 to 44 of the Contract Act, that these two defendants were liable to contribute also.
21. To like effect is the decision in Kunju Naina v. Eapen Chacko, AIR 1954 Trav-Co 499 (D). The principle was laid down that in order to attract the obligation of a co-promisor to contribute towards a joint debt, all that is necessary is that the debt should have been discharged by a co-promisor when the debt was alive against him and that it was not necessary that the liability of the co-promisor against whom contribution is claimed was a subsisting one when the promises was paid, the true test being whether the liability was subsisting against the co-promisor who claims the contribution when he paid it.
22. The result of these authorities clearly is that where a number of persons are jointly and severally liable to satisfy a decree, then it is open to the decree-holder (who is in the position of a joint promisee) to compel any one or more of the Judgment-debtors (who are in the position of joint promisors) to satisfy the whole of the decree, and that the judgment-debtors who while such decree is subsisting against them have been so compelled to perform the promise can claim contribution from the others who have not satisfied the decree (according to their shares), and that this liability to contribution is not affected in any way by the release of some of the judgment-debtors by the decree-holder from the performance of the promise unless of course a contract to the contrary between all the parties liable to contribute has been established. It must follow, therefore, that as Tansukhlal is not established to have expressly or impliedly agreed to assume the entire responsibility for the satisfaction of the decree, he has a claim to receive contribution from the defendants equally with himself and this liability arises on his having satisfied the decree to the extent of Rs. 6387/-. It is equally no answer, on these very authorities, to say that the assignees decree-holders had exonerated the defendants from liability under the decree and that the plaintiff need not have satisfied the decree except to the extent of his own share, the simple reason being that the decree was one and indivisible and it was open to the decree-holders to enforce it against any one of the judgment-debtors in its entirety, and any release by the decree-holders of some of the judgment-debtors did not operate to release the remaining judgment-debtor namely the plaintiff from his joint and several responsibility to sa-tisfy the entire decree nor could it have the effect of defeating his right to claim contribution from the judgment-debtors so released.
23. I may next briefly dispose of an argument raised on behalf of the defendants respondents to the effect that the plaintiff's case could only fall under section 69 of the Contract Act, and that as it does not fulfil the conditions of that section, his suit for contribution or reimbursement is liable to be dismissed. Section 69 is in these terms :
'A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it is entitled to be reimbursed by the other.'
It is contended that the defendants were not bound in law to make any payment to the assignee decree-holders and, therefore, the plaintiff need not have made any payment on behalf of them and if he made any such payment, he could not ask for reimbursement. This argument, to my mind, is fallacious. Section 69 provides for a claim for reimbursement under certain circumstances, and those circumstances are mentioned in the section. But it does not follow from this that a claim for re-imbursement or contribution could not arise under any other circumstances, assuming, though not conceding, that reimbursement or contribution mean one and the same thing aS I look at the whole matter, the present case is not covered by section 69, but that is not to say that the claim for contribution can be negatived on this score it it otherwise arises under sections 43 and 44 of the Contract Act: As I have held above, the applicability of the last-mentioned sections is clearly attracted in the present case and, therefore, it would be meaningless to say that the plaintiff's claim cannot be decreed under section 69. Besides, there is also authority for saying that a claim for reimbursement is not quite the same as a claim for contribution. The word 'reimbursement' used in section 69 has to be contrasted with words 'contribute' or 'contribution' used in sections 43 and 44 of the Contract Act. Properly speaking, there cannot be any claim for reimbursement among joint promisors, and there would be contribution between them as persons who are equally bound to perform the promise. A case of reimbursement within the meaning of section 69 arises where another person is bound by law to make a payment but, he does not make it, and the person who makes it has an interest in the matter, and, therefore, makes the payment. The illustration to the sec-tion, in my opinion, makes the matter quite clear, and so a claim for reimbursement in the sense In which the word is Used in section 69 cannot be said properly to arise where a person who makes the payment is himself bound by law to make it and is not merely interested in the payment of the money required, What 1 wish to emphasize is that section 69 deals with and provides for one kind of circumstances and a claim for reimbursement arising therefrom, and sections 42 to 44 deal with another kind of circumstances and another kind of claim namely that for contribution though, losely speaking, one may use contribution and reimbursement interchangeably. This contention has, therefore, no force and I overrule it.
24. The last point which was pressed before me was that the plaintiff's claim as to the sum of Rs. 513/- which was paid to the assignee decree-holders before 1945 was barred by limitation having been made more than three years before the present suit was filed. It is admitted before me that the period of limitation governing the suit is three years under Article 61 of the Limitation Act. Further, it appears to have been conceded before the court below that this claim was barred by time. The contention of learned counsel for the appellant, however is that an admission on a point of law has no force against his clients. There is forcein this contention. The argument raised before me is that a claim for contribution could really arise in the Present case only when the plaintiff had paid more than his proportionate share of the entire decretal amount and that when he had paid Rs. 513/- only, this was well within the limit of the payment which he had to make himself. In other words, a case for contribution arising out of excess payment could and would come into existence only when such excess payment had been made, and such a case arose for the first time in 1945. The plaintiff brought his suit on the 13th September 1946. Consequently I have no hesitation in holding that the contention of the plaintiff is correct, and that the view of the courts below that the claim for contribution to the extent of Rs. 513/- was barred by time is quite wrong, and I hold therefore that the entire suit is within limitation.
25. For the reasons mentioned above. I allowthis appeal, set aside the judgment and decree ofthe learned District Judge, Udaipur, and decreethe plaintiff's suit against the defendants respondents Motilal and Pannalal for a sum of Rs.4599/5/4 which they will contribute in equal shares.If any one of the two defendants respondents domake default in such contribution, the plaintiffand the remaining respondent shall bear the lossarising from such default equally. The plaintiffswill also be entitled to interest on the decretalamount at 4 per cent per annum from the dateof this decree till realisation Having regard toall the circumstances of the case, I would leavethe parties to bear their own costs throughout.Leave to appeal is refuged.