1. This is a second appeal from a decision of the Subordinate Judge of Sylhet modifying a decree of the Munsif of Nubeegunge. A preliminary objection was raised that under Section 586 of the Procedure Code this appeal does not lie, on the ground that the claim is under Rs. 500, and the cause of action of such a nature that a Small Cause Court had jurisdiction over it.
2. The claim is for contribution. The case found is that the plaintiff and the defendant, being jointly liable on a bond, were jointly sued, and a decree was made against them jointly. The plaintiff was compelled to satisfy that decree and in this suit seeks to recover his share from the defendant. In Rambux Chittanjeo v. Mudhoosoodun Paul Chowdhry B.L.R. Sup. Vol. 675; 7 W.R. 377 the general rule was laid down by a Pull Bench that a suit for contribution does not lie in a Small Cause Court under Section 6 of the Mofussil Small Cause Courts Act (XI of 1865), in the absence of a contract to contribute. In Shaboo Majee v. Noorai Mollah B.L.R. Sup. Vol. 691 the plaintiff and defendant had been jointly sued upon a joint bond, and a joint decree obtained against them, plaintiff having had to pay the amount sued for contribution. It was held by a Pull Bench that he could not sue in a Small Cause Court. This case is on all fours with the present, and we are bound to follow it, unless some thing has since occurred by which the law has been altered. It was argued before us that Sections 43,1 69 and 702 of the Contract Act (IX of 1872) have made a change in the law on this point, and that such a suit as the present has become one for 'money due on bond or other contract, or for damages.' We are unable to accede to this view. The sections referred to appear to us to do no more than state in written form what was the law before the Contract Act, and the consequences of a given rule of law must be the same whether it be written or remain unwritten.
3. A somewhat different view has been taken in a partially analogous case by the Allahabad High Court in Nathprasad v. Baijnath I.L.R. 3 All. 66: but that view has not been followed in this Court. Nobin Krishna Chukravati v. Ram Kumar Chakravati I.L.R. 7 Cal. 605 and Special Appeal No. 2350 of 1879 unreported. The appeal must therefore be heard on its merits.
4. The appeal will be dismissed with costs.
1[Section 43: 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.
If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.
Any one of joint promisors may be compelled to perform.
Each promisor may compel contribution.
Sharing of loss by default in contribution.
Explanation.-Nothing in this section shall prevent a surety from recovering from his principal payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.
2[Section 70: Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.]
Obligation of person enjoying benefit of non-gratuitous Act.