Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiffs-appellants for contribution, on the allegation that the plaintiff's and defendant No. 2 took from defendant No. 1 a 2 annas 5 gundas and a 15 gundas share of a certain zemindari in putni by two separate documents; that thereupon a suit was brought by one Prannath Nundy against the plaintiff's and defendants Nos. 1 and 2 for enforcing specific performance of a contract to grant a putni to him of the said two shares; that that suit was decreed with costs, and the whole costs decreed in favour of Prannath Nundy were realized from the plaintiff's. The plaintiff's seek to recover two different amounts from the two defendants Nos. 1 and 2.
2. The defence of the defendants was a denial of liability. They also pleaded that the suit was not maintainable; and they took some exception as to the extent of the liability of each.
3. The Courts below have thrown out the suit on the ground that no suit for contribution lies by one of several joint wrong-doers against the others.
4. In second appeal it is contended that the Lower Appellate Court is wrong in finding that the plaintiffs and the defendants were joint wrong-doers, or that they conspired together in setting up a false defence in the suit in which the decree (or costs was made, when there is no legal evidence to sustain the finding; and further that the Lower Appellate Court is wrong in treating this suit as one for contribution by one of several wrong-doers against the others.
5. Upon the first point what the Lower Appellate Court says is this: 'From the grounds of appeal of the original suit, it is clear that the Court held that the plaintiffs and the defendants made a conspiracy to defeat the contract between the defendant No. 1, Sri Gobind Chowdhry and Prannath Nundy, and, as such, were joint wrong-doers, and they knew that they were doing an illegal and wrongful act.' Exception is taken to this finding on the ground that the grounds of appeal in the former suit could not be used as evidence to establish the fact found. We are of opinion that this contention is correct. The utmost that the grounds of appeal can be taken to show is that the plaintiffs, who were some of the appellants, admitted in their grounds that the finding of the first Court was what the Lower Appellate Court in this case states it to be. But though that may be so, the finding of the Court in the former suit would be no evidence in the present suit of the fact found, for this simple reason, that that finding was arrived at in a case in which the present plaintiffs and the defendants were all co-defendants and a third party was the plaintiff. This is the rule of law laid down by a Full Bench of this Court in Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry I.L.R. 13 Cal. 352. The finding of the Lower Appellate Court upon this point cannot therefore stand.
6. The next question is whether the case should be remanded for the determination of the question whether the plaintiff's and the defendants in this case combined to defeat the plaintiffs in the former suit, and with that object put in false defences. We are of opinion, having regard to the manner in which this case has been dealt with by the Courts below, chat if the determination of this question is necessary for the right decision of the case, the case ought to go back to the Court of First Instance. It becomes important,therefore, to determine whether it is necessary for the decision of the case that the question stated above should be determined. The learned Vakil for the appellants relies upon the case of Brojendro Kumar Roy Chowdhry v. Rash Behari Roy Chowdhry I.L.R. 13 Cal. 300 in support of his contention that the plaintiffs in a case like this are entitled to contribution quite irrespective of the question referred to above, as the suit which resulted in the award of costs in respect of which contribution is asked for was a suit based, not upon tort, but upon contract. But we are of opinion that that case is distinguishable from the present one, as no question arose in that case as to whether the parties who were made liable for damages and costs in that suit had incurred that liability by reason of their having set up any false defence. On the other hand, we think the case of Vayangara Vadaka Vittil Manja v. Pariyangot Padingara Kuruppath Kadugochen Nayar I.L.R. 7 Mad. 89 is much more in point upon this question. In that case it was held that where the plaintiff's colluded with the defendant in a former suit to endeavour to defeat the plaintiff's there, and were made liable for costs, no suit for contribution in respect of such costs would lie. Following this decision of the Madras High Court, which in our opinion lays down a wholesome rule, we think the case ought to be remanded to the first Court for the determination of the question stated above and of any other question relative to the apportionment of liability that may be found necessary.
7. The costs will abide the result.