R.P. Mookerjee, J.
1. This Rule was obtained on behalf of the plaintiffs and arises out of a suit brought by them for contribution. Both the Courts below have dismissed the plaintiffs' claim.
2. For a proper appreciation of the points in issue in the present matter the facts may be shortly stated. One Chandra Nath Bhattacharjya held a jama Rs. 33/- under the predecessor of the plaintiffs and defendant I, who were members of the same family. In 1875 Chandra Nath sold the holding to one Badal Giri. This transfer was recognised by the landlords and is supported by the entry in the records of rights as finally published. In course of execution of a rent decree obtained by the Dey landlords against the heirs of Chandra Nath, without impleading the heirs of Badal Giri, the property was purchased by defendant 2 Satya Charan Ghose. Satya Charan was resisted by the heirs of Badal Giri from taking possession of the holding. Defendant 2 thereupon brought a suit, with alternative prayers either to be put in possession on the property after declaration of his title' or for a direction on the decree-holders Deys to refund the purchase price by way of damages on the ground, that the latter, although cognizant of the fact that the heirs of Chandra Nath had no saleable interest in the tenancy in suit, had put up the holding to sale purporting the same to belong to the latter. The alternative claim for compensation as put forward by the present defendant 2 was decreed the original decree-holders Deys were asked to pay back the proportionate share of the purchase money taken by them. He put this decree in execution and attached an ejmali estate of the Deys Touzi No. 148/1 of the Hooghly Collectorate. The attached property was advertised for sale. The present plaintiffs who were part proprietors deposited the entire decretal amount on 9-6-1941 and thus saved the joint property from sale. It is now contended on behalf of the plaintiffs that defendant 1 was liable for a third share of the amount due under the decree obtained by defendant 2. Hence the present suit, for contribution with interest from defendant 1.
3. The learned Munsiff came to the conclusion that the members of the Dey family viz., the plaintiffs and defendant 1 should be considered to be joint tort feasors as being cognisant of the wrongful act they were committing by putting the property to sale though it was not the property of the judgment-debtors. There could be no contribution as between joint tort feasors. The 3earned District Judge affirmed this decision.
4. Originally a second appeal (S. A. No. 459 of 1946 (Cal) ) was filed in this Court on behalf of the plaintiffs. The appeal was admitted after a preliminary hearing and was ultimately transferred to a Division Bench for final hearing. It was ultimately held on 25-5-1950 that no Second appeal lay to this Court as the same was barred under Section 102, C. P. C. The value of the appeal was only Rs. 143/-. An application for revision was thereafter filed and the present Rule was obtained on 12-6-1950.
5. On behalf of the opposite party, it was faintly suggested that the application on which the present rule has been issued was barred by limitation. In the first place, there is no period of limitation specified for application for revision though the usual practice has been to insist on such applications being filed within 90 days from the date of the order complained of. There had however been occasions when applications had been accepted beyond such period if the Court were satisfied about the reasons for such delay. Further, if the period covered by the pendency of the second appeal in this Court and the time taken for obtaining certified copies of the judgments and decrees be excluded the application as filed is within time.
6. On behalf of the plaintiff petitioner, it has been contended (1) that the defence based upon the judgment debtors being joint tort feasors was not raised in issue in the trial Court and this point ought not to have been allowed to be taken at the stage of the argument (2) that the rule in --'Merry Weather v. Nixan', (1799) 8 Term Rep 186 (A) is not applicable to the conditions prevailing in India, and (3) that, even if that rule be applicable in India, on the facts of the present case, it ought to have been held that this is not a case of joint tort feasors.
7. The argument founded on the ground that the parties were joint tort feasors cannot be brought under any one of the issues as raised. The parties did not therefore adduce all relevant evidence as to what part was played by the parties when the decree for rent was obtained by the landlords against the heirs of Chandranath. In the absence of such relevant and material evidence, it is not always possible to finally decide the question raised during argument. We may, however, proceed to consider whether the rule in Merry Weather's case can in any view be attracted in the present case.
8. As we have come to the conclusion as indicated below that it is not -- we are not required to consider whether the question of fact about the complicity of the parties as alleged tort feasors requires further examination.
9. Under Section 43 of the Contract Act when two or more persons make a joint promise, the promisee may, in the absence of an express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise, and
'each of the 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.'
10. (1799) 8 Term Rep 186 (A) has been taken to be an authority for the proposition that no contribution can be claimed between joint tort leasors. It is often overlooked that this was not a case of joint tort feasors in the sense that all the parties were jointly guilty of one tort. There were, as a matter of fact, two separate torts. This rule in Merry Weather's case enunciated in very general terms was subsequently held by Lord Herschell in --'Palmer v. Wick', (1894) AC 318, at p. 324 (B) as not being 'founded on any principles of justice or equity or even on public policy which justify its extension to the jurisprudence of other countries.' After indicating the difference between the English & the Scotch Law, the House of Lords refused to extend this rule to Scotland (See also -- 'Smith v. Clinton', (1908) 99 LT 840 (C) ).
11. The mere fact, however, that two or more persons have concurred or assisted in or contributed to an act which is responsible for inflicting damages, is not of itself sufficient to make such persons jointly liable unless certain other conditions are also fulfilled.
12. In --'Adamson v. Jarvis', (1827) 4 Bing 66 (D), Best C. J. had pointed out so early as 1827 and that within 30 years of the rule having been laid down in Merry Weather's case that there was a tendency even in England to limit the broad principle laid down in the latter case. It is worthy of note that this rule has now been, for all practical purposes, abolished in England by Law Reform (Married Women and Tort Feasor's) Act 1935 (25 & 26 Geo. V C. 30 Sec. 6). If any damage is suffered by any person consequential upon a tort committed on or after 1-11-1935 any tort feasor liable in respect of that damage may recover contribution from any other tort feasor who is or would, if sued, have been liable in respect of the same damage whether as joint tort feasor or otherwise (See --'Burnham v. Boyer, (1936) 2 All ER 1165 (E) --'Kubach v. Hollands', (1937) 3 All ER 907 (F).
13. The rule in Merry Weather's case (A) was considered by this Court in --'Sreepatty Roy v. Loharam Roy', 7 WR 384 (FB) (G). In this case, the plaintiff was one of several persons including the defendants who had wrongfully constructed a bund and caught fish within the limits of a Jalkar which belonged to a third party. That third party in a subsequent suit obtained a decree against the plaintiff and defendants jointly but the decree was executed against the plaintiff alone. The plaintiff sued the defendants for contribution. It is significant that with reference to the general question the following observation was made by the Full Bench.
'All that we can see is that the plaintiff was not necessarily precluded from recovering contributions merely because the damages for which the decree was given was caused by a wrong, in the legal sense of the term, done to the plaintiff ................'.
14. In -- 'Harisaran v. Jatindra Mohan', 5 Cal WN 393 (H) it was held that if the alleged joint wrong doers had acted under a bona fide claim of right and has reason to suppose that they had a right to do what they had done there is a right of contribution 'inter se'.
15. In -- 'Mohesh Chandra v. Boydyanath', 6 Cal WN 88 (I) it was the plaintiffs who were in possession of lands, standing in the names of their father and deceased brother, part of which was sold by the deceased brother's widow to the defendants who got a decree for possession against the plaintiffs. The latter kept the former out of possession. In such circumstances, the plaintiffs possession should not be considered as that of tort, feasors and they are therefore entitled to recover from the defendants by way of contribution the rent paid by the plaintiffs for the portion of the land purchased by the defendants.
16. In 'Bishnu Charan v. Bepin Chandra', AIR 1914 Cal 863 (J) Jenkins C.J. kept the question open whether the strict law of 'Merry Weather v. Nixan', was applicable in India. It was further pointed out that in a suit for contribution a plea that the plaintiffs were only wrongdoers in the sense that they alone were in possession of the land in respect of which mesne profits were awarded is of such a special nature & requires such special consideration that it should be distinctly pleaded and made the subject of a distinct issue.
17. In another Bench decision -- 'Kamala Prosad v. Chandra Nath' : AIR1928Cal180 it was doubted whether the rule in Merry Weather's ease at all applied to India. See also--'Nihal Singh v. Collector of Buland Sahar' AIR 1916 All 160 (2) (L).
18. Similar doubt about the applicability of the rule enunciated in 'Merry Weather's case' (A) to India was repeated in --'Sashi Kantha v. Promode Chandra' : AIR1932Cal600 .
19. The same view was expressed by Nagpur Court in -- 'Kushal Rao v. Bapu Rao Ganapat Rao' AIR 1942 Nag 52 (N).
20. Reference may also be made to the views expressed by the Madras Court in -- 'Siva Panda v. Jujusti Panda', 25 Mad 599 (O).
21. In our view, the Rule in Merry Weather's case (A) expressed as a general proposition should not be extended to India. In India when one of the joint judgment-debtors pays off the decretal-debt, he has a right to contributior from his co-judgment-debtor to what extent and in what proportion may depend upon the circumstances of each case. When a defence of this nature is raised it is pertinent to enquire why, by punishing a wicked person by giving effect to the defence, relief is to be given to the defendant who is the other wicked person, specially if it should appear that the defendant himself was the mainspring or the ringleader in the perpetration of the tortuous act, or similar other facts are brought out.
22. In the absence of any issue in the present case and the point having been raised during argument in the trial at a late stage there are no sufficient materials in the record from which one may differentiate between the plaintiff from the defendants as to the part played by them at the various stages of the activities imputed to them on the allegation that they were joint tort feasors.
23. In this view, it must be held that the Courts below were in error in dismissing the plaintiff's claim for contribution. This Rule is accordingly made absolute. The judgments and decrees passed by the Courts below are set aside and the suit decreed.
24. In the circumstances of this case, there will be no order for costs in this Court. The plaintiff will be entitled to the costs of the Courts below.
25. I agree.