1. This appeal arises out of a suit for contribution. The plaintiffs and some of the defendants were co-sharers in a jote the rent of which was in arrears. Some of the co-sharer landlords obtained a decree for arrears of rent and attached the properties of the plaintiffs alone, whereupon the plaintiffs deposited the decretal, amount in order to save their properties.' They now sued the defendants for the proportionate share payable by them.
2. The Court of first instance held that the defendant No. 1 was the real owner of a certain share in the jote and that his wife, the defendant No. 2, was merely a benamidar for her husband and accordingly gave a decree against the defendant No. 1 alone. The defendant No. 1 appealed to the lower Appellate Court, urging that it was not he but his wife, the defendant No. 2, who was the real owner of the share and that he, therefore, was not liable for any share of the rent. The learned Subordinate Judge has found that the defendant No. 2 was the real owner and he has reversed the decree of the Court of first instance and dismissed the suit of the plaintiffs entirely. The plaintiffs have appealed to this Court.
3. We are of opinion that the lower Appellate Court is wrong in dismissing the suit entirely. The plaintiffs prayed that a decree might be passed against both the defendants Nos. 1 and 2 or against either of them who might be found to be the true owner; and when the Subordinate; Judge found that it was not the defendant No. 1 but the defendant No. 2 who was the true owner, he ought to have passed a decree against the latter although there was no appeal preferred by the plaintiffs who were the respondents before him. That the Court had the power to pass a decree against the defendant No. 2. would, appear from the provisions of Order XLI, Rule 33, Code of Civil Procedure, which runs as follows: 'The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although, such respondents or parties may not have, filed any appeal or objection. Illustration.--A claims a sum of money as due to him from I or Y, and in a suit against both, obtains a decree against X. X appeals and, A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.' Here both the defendants Nos. 1 and 2 were parties to the appeal and under the circumstances we think the lower Appellate Court ought to have passed a decree against the defendant No. 2.
4. It is pointed out, however, on behalf of the respondents that the defendant No. 2 set up certain payments alleged to have been made by her to some of the other co-sharer landlords, namely, Umamoyee and Kanak Sundari, and that there was an arrangement under which the rent payable by the defendant No. 2 for her share of the jote was to be paid to these two ladies alone. Both the Courts below have disbelieved the story of this arrangement; and the question whether the defendant No. 2 did pay any portion of the rent payable for the jote to those two ladies for their share of the rent was considered by the Court of first instance and was found against the defendant, that Court having disbelieved the dakhilas produced by her in support of the said payments. On appeal, the lower Appellate Court has not come to any definite finding as to whether there was really any payment by the defendant No. 2 to these two ladies If there was really any payment to them on account of the rent payable for the jote, then the defendant No. 2 would be entitled to get a proportionate reduction.
5. Under the circumstances, we think that the decree of the lower Appellate Court should be set aside and the case sent back to that Court in order that it may determine upon the evidence on the record whether any payment was made by the defendant No. 2 to the two ladies in respect of the rent payable for the entire jote, whether the plaintiffs were liable for the share of the rent, if any, paid by the' defendant No. 2 to those two ladies and obtained the benefit of such payment; and, if it finds these questions in favour of the defendant No. 2, then it will allow her a deduction to the extent of the plaintiffs' share from the amount to which the plaintiffs were found entitled under the decree of the Court of first instance. With the exception of the points stated above, no other question will be gone into by the lower Appellate Court. Costs will abide the result according to the success of each party.