1. These two appeals arise out of two suits for contribution. The plaintiff and the defendants are owners of five different jotes. The landlord obtained decrees for rent in respect of these five jotes. In execution of one of these decrees one of the jotes was put up to sale on the 29th of March 1909 and was purchased ostensibly by defendant No. 4 but really for the plaintiff for Rs. 1,600. The sale was confirmed on the 7th November 1909. On the 2nd March 1911 the landlord took out Rs. 564 14 annas 9 pies out of the sale proceeds in satisfaction of his decree for rent in respect of that jote. In execution of the decrees obtained by the landlord in respect of the four other jotes, the landlord attached the balance of the sale-proceeds and withdrew a sum of Rs. 963 3 annas 9 pies on the 24th February 1912. The sale of the 1st jote, however, was set aside on the 9th December 1912. The plaintiff, thereupon, attempted to get a refund of the amount realised from the landlord but failed, as he was one of the judgment debtors. The plaintiff then brought these suits for contribution against defendants Nos. 1 and 2. No relief was claimed against defendant No. 3 as he agreed to pay his share amicably to the plaintiff. The Court of first instance found that the defendants were benefited by the payments or rather by the satisfaction of the decrees, and gave a decree to the plaintiff. That decree was set aside by the learned Subordinate Judge on appeal; and the plaintiff has appealed to this Court.
2. Now the plaintiff and the defendants were jointly made liable under the decrees for rent and the joint liability having been discharged with the money of the plaintiff, there is no doubt that the defendants have obtained the benefit of the same. The learned Subordinate Judge held against the plaintiff, on the ground that the payment of Rs. 1,600 into Court was not lawful and that the character of the payment was not altered by the subsequent setting aside of the sale. This has reference to the fact that the plaintiff, being one of the judgment-debtors could not, having regard to the provisions of Section 173 of the Bengal Tenancy Act, purchase at the sale. It appears, however, that the plaintiff as well as the defendants bid for the jote and that it was the plaintiff's bid that was accepted. The purchase by the plaintiff was not void, but was only voidable. However that may be, after the sale was set aside, the money deposited became the money of the plaintiff alone and we do not see why, after the sale was set aside, the money should not be treated as having been lawfully paid, or appropriated in payment of the decrees for rent.
3. It is contended on behalf of the respondents that it is not in every case that a man has benefited by the money of another that an obligation to repay that money arises. Reference was made to the cases of Ram Tuhul Singh v. Biseswar Lall Sahoo 2 I.A. 131 : 23 W.R. 335 : 15 B.L.R. 203 : 3 Sar. P.C.J. 477 : 3 Suth. P.C.J. 136 Ruabon Steamship Company Limited v. London Assurance (1900) A.C. 6 at p. 15 : 69 L.J.Q.B. 86 : 81 L.T. 585 : 48 W.B. 225 : 9 Asp. M.C. 2 : 5 Com. Cas. 71 : 16 T.L.R. 90 and Abdul Wahid Khan v. Shalukha Bibi 21 C. 496 at p. 504 (P.C.) : 21 I.A. 26 : 6 Sar P.C.J. 390 : Rafique & Jacksons's P.C. No. 131 : 10 Ind. Dec. (N.S.) 961. These eases, however, are distinguishable. The first case was not a case between co-sharers, nor a suit for contribution. There was no obligation to pay any joint debt in that case. In the case of Ruabon Steamship Company Limited v. London Assurance (1900) A.C. 6 at p. 15 : 69 L.J.Q.B. 86 : 81 L.T. 585 : 48 W.R. 225 : 9 Asp. M.C. 2 : 5 Com. Cas. 71 : 16 T.L.R. 90 the Lord Chancellor, referring to the observations made by the learned Judges in the cases referred to in the judgment, observed that 'the liability of each of the persons held to be bound to contribute is assumed to exist either by contract or by some obligation binding them all to equality of payment or sacrifice in respect of that common obligation. But this is the first time in which it has been sought to advance that principle where there is nothing in common between the two persons, except that one person has taken advantage of something that another person has done, there being no contract between them, there being no obligation by which each of them is bound and the duty to contribute is alleged to arise only on some general principle of justice that a man ought not to get an advantage unless he pays for it.' The Lord Chancellor referring to the case of Dering v. Earl of Winchelsea 787, 1 R.R. 41 : 1 Cox. 318 : 29 E.R. 1184 stated that the principle established in that case was universal and that the right and duty of contribution was founded on doctrines of equity and that it did not depend upon contract. His Lordship further said: 'if several persons are indebted and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors.' 'So in the case of land descending to co-parceners subject to a debt, if the creditor proceed against one of the co-parceners, the others must contribute.'
4. In the case of Abdul Wahid Khan v. Shalukha Bibi 21 C. 496 at p. 504 (P.C.) : 21 I.A. 26 : 6 Sar P.C.J. 390 : Rafique & Jasksons's P.C. No. 131 : 10 Ind. Dec. (N.S.) 961 also there was no joint liability. The defendant in that case had spent money in prosecuting certain suits for his own benefit, and without any authority, express or implied, from the plaintiffs, and it was held that the fact that the result was also a benefit to the plaintiffs did not create any implied contract or give the defendant any equity to be paid a share of the costs by the plaintiffs.
5. It is also contended on behalf of the respondents that at the time the money was paid there could not be any question of intention of benefiting anybody by paying any money 'without intending to do so gratuitously.' This is true, because at the time when Rs. 1,600 was paid into Court, it was paid as purchase money, and so long as the sale was not set aside the property purchased remained in the plaintiff, and the money which was taken by the decree-holder, therefore, was the money which belonged to all the co-sharers and it was only after the sale was set aside that the money became the plaintiff's money and then only the question of any intention of payment not gratuitously would arise. The payment must, therefore, be taken to have been made on behalf of the plaintiff on the date on which the sale was set aside.
6. It is further contended on behalf of the respondents that as a matter of fact the money was not paid by the plaintiff as it was realised in execution by the creditor. We do not think that that makes any difference in principle. So far as the right of contribution against the co-sharers is concerned, it does not matter whether the money is actually handed over by the party seeking contribution, or is realised from him by coercive process by the creditor. In either case, the right to contribution arises from the fact that one of the co-owners has paid in excess of his share, and the joint liability of all the co-sharers has been discharged. We may refer in this connection to the cases of Matangini Debya v. Prasannamoyi Debya 3 C.L.J. 93, Rajah of Vizianagram v. Rajah Setrucherla 26 M. 686 (F.B.), Ibn Hasan v. Brijbhukan Saran 26 A 407 at p. 435 : A.W.N. (1901) 74 : 1 A.L.J. 148 (F.B.), Dhakeswar Prosad Singh v. Harihar Prosad 27 Ind. Cas. 780 : 21 C.L.T. 104 at p. 110.
7. We now come to the question of limitation. Article 61 of the Indian Limitation Act lays down a period of three years (in a suit for money payable to the plaintiff for money paid for the defendant) from the date when the money is paid, and under Article 99 the period of three years commences from the date of the payment in excess of the plaintiff's own share. Where the money is realised in execution and there is no actual payment of the money by the party, it has been doubted whether it is a payment within the meaning of Article 61 or Article 99; see Fuckoruddeen Mahomed v. Mahima Chunder 4 C. 529 : 2 Ind. Dec. (N.S.) 336; see also Hari Narayan Chatterjee v. Iswar Chandra Chatterjee 13 Ind. Cas. 457 and Marrivada Chinna Ramayya v. Veerapurani Venkattap piah 8 Ind. Cas. 1102 : (1910) M.W.N. 889 : 9 M.L.T. 212, although in Rajah of Vizianagram v. Rajah Setrucherla 26 M. 686 (F.B.) a different view has been taken. If Article 61 or 99 applies, then the cause of action for the suit must be taken to have arisen when the sale was set aside. In the case of Matangini Debya v. Prasannamoyi Debya 3 C.L.J. 93 Maclean, C.J. observed: 'When a patni is purchased under circumstances such as the present, namely, by one of the defaulters, there is nothing in the Regulation to make the sale absolutely void though it is voidable, but, until it is avoided, the property would remain in the purchaser. If it be held that the purchase in this case was voidable and was not avoided until the 12th June 1899, seeing that on the 5th September 1898, when the payment was made, the plaintiff was the owner of the patni, the payment must be regarded as made on his own account, and not for the co-patnidars. In this view the Statute would not begin to run until after the 12th June 1899. The plaintiff would have no cause of action against the defendants until the 12th June 1899. To revert for a moment to Article 61, it cannot be said that there was any money paid for the defendants until the sale had been set aside. Up to that time, the money must be taken as paid by the plaintiff on his own account.' But even if the cause of action is taken to have arisen on the date of actual payment to the decree-holder, the payment of Rs. 963 odd was made within three years of the suit and so far as that amount is concerned, it is not barred by limitation. It is otherwise with the sum of Rs. 565, which was paid more than three years before the institution of the suit. We are of opinion, however, that if Article 99 or 61 applies, then the cause of action must be taken to have arisen when the sale was set aside. If neither of the two Articles applies, then Article 120 would apply. Article 120 gives 6 years' period within which the suit is to be brought. Here both the payments were made within 6 years of the suit. Under the circumstances we think that the suit is barred by limitation.
8. There are, however, certain issues in connection with the third and fourth questions set out in the judgment of the lower Appellate Court which have not been gone into. They must be gone into before the cases are disposed of.
9. The result is that the decrees of the lower Appellants Court are set aside and the cases are remanded to that Court for disposal after the decision of the two points referred to above.
10. Costs will abide the result.