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Bejoy Kumar Sen and anr. Vs. Kusum Kumari Debi and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1929Cal315
AppellantBejoy Kumar Sen and anr.
RespondentKusum Kumari Debi and ors.
Cases ReferredMatungini Debi v. Brojeswari Banerji
Excerpt:
- .....of the decision of the judicial committee. here the plaintiff not having appealed, his right to claim a decree for the excess amount against defendants 5 and 6 was barred and in his appeal against the other defendants the court could not under rule 33 grant a decree against persons not parties to the appeal. but defendant 4 who was one of the co-defendants could very well appeal to the appellate court and say that he was not liable for the plaintiff's claim; and if in determining the point raised in the appeal the court finds that the plaintiff is entitled to recover the amount charged upon the appellant from other defendants the court may pass a decree against them though not parties to the appeal. it would have been much better if the court had acted under rule 20, order 41, instead.....
Judgment:

Suhrawardy, J.

1. These two appeals arise out of a contribution suit. Jagabandhu the predecessor of the plaintiff, Mathura Nath the predecessor of defendants 1-3, Umesh Chandra the predecessor of defendants 5 and 6 and defendant 4 held a Nim Osat Taluk. The landlord in execution of a decree for arrears of rent in respect of it brought the taluk to sale when one Somoraddi who had a subordinate interest in it deposited the decretal amount under Section 171, Ben. Ten. Act. Subsequently he brought a suit against the Nim Osat Talukdars to recover the amount he had paid on their behalf to satisfy the landlord's decree. He obtained a decree and in execution of it some property belonging exclusively to the plaintiff was sold for Rs. 1,033. The plaintiff, therefore, sued defendants 1-3, defendants 5-6 and defendant 4 to recover from each set of defendants 1/4th share of the sum of Rs. 1,033 with interest thereon. It appears that the decree-holder Somoraddi's debts were not fully satisfied by the sale of the plaintiff's property. Some time after, defendant 4 paid the outstanding amount in another execution case to the decree-holder and thus squared up the liabilities of the defendants under the decree. The different sets of defendants raised various objections in the plaintiff's suit for contribution, some of which will be noticed later. During the pendency of the suit the plaintiff and defendants 1-3 entered into a compromise and thus they (defendants 1-3) went out of the suit. The Munsif in the trial Court gave a decree for Rs. 350-14-8 against defendants 5 and 6 and for the same amount against defendant 4. This amount was arrived at by calculating the 1/4th share of each set of defendants in the sum of Rs. 1,033 realized from the plaintiff alone with interest at the rate of 12 per cent per annum. Defendant 4 appealed and the learned Subordinate Judge dismissed the plaintiff's suit against defendant 4 but passed a further decree against defendants 5 and 6 for Rs. 116-15-6. It should be noted that in the appeal by defendant 4 defendants 5 and 6 were not made respondents.

2. These two appeals are by the plaintiff and defendants 5 and 6. We will first deal with the plaintiff's appeal which is No. 1398 of 1926. It is argued on his behalf that as he paid the amount which was payable by all the defendants, he is entitled to a decree against defendant 4 also. It is submitted on behalf of defendant 4 that as he has paid his dues in full to the decree-holder, he is not liable to contribute towards the amount realized from the plaintiff. Now the claim for contribution is based on principles of equity and the Court must take an equitable view in the circumstances of each case and decide according to principles of equity and adjust the rights of the parties in accordance with rules consistent with justice, equity and good conscience: Magniram v. Mehdi Hossain Khan [1904] 31 Cal. 95. The right to contribution though an equitable right arises out of an implied contract of indemnity between the parties liable for the same debt. This contractual obligation attaches to each of the persons liable to satisfy the common debt. But this right is not confined to Ss, 69 and 70, Contraot Act, but may be based upon other equitable considerations and these considerations are available as much to the plaintiff as to the defendants. Registered Jessor Loan Co. Ltd. v. Gopal Hari A.I.R. 1926 Cal which is authority further for the view that all difference between the parties should be settled and adjusted in one suit.

3. In Matungini Debi v. Brojeswari Banerji [1914] 20 C.L.J. 205 it was held among other things that no contribution can be levied against a person who has paid more than his share of the debt. In adjusting the rights of the parties in a suit for contribution the attention of the Court is not to be limited by the liabilities arising from the claim in the suit but in adjusting the equitable rights of the parties to the suit it may go beyond the scope of the suit and enquire into other mutual liabilities. In Gogun Chand Butt v. Huri Mohan Dutt [1883] 12 C.L.R. 539 the suit was brought by the plaintiff for contribution against the defendant on the ground that he had paid rent in excess of his share under a claim which he and the defendant were jointly liable to satisfy. In that case the defendant proved that he had paid the whole rent similarly on previous occasions and such payments were taken into consideration in adjusting the rights of the parties without the defendants pleading a set off. In. Gajadhar Mahto v. Raghubar Gope [1908] 12 C.W.N. 60, in a suit for contribution by a cosharer for a certain sum of money paid on behalf of his other cosharer to discharge a decree for rent obtained against them jointly, the defendant claimed a set off on account of previous payments by him under similar decrees for joint debts. The Court upheld the plea and the defendant was allowed to prove payments on behalf of the plaintiff on other occasions and further it held that in such cases no question of limitation arose. That being the law we have to consider how the rights of the different parties in this suit can be adjusted in justice, equity and good conscience.

4. Before dealing further with this matter it will be convenient to dispose of the appeal by defendants 5 and 6. Their first ground is that as they were no parties in the appeal the Court was wrong in passing a decree against them in their absence. The order passed by the lower Court allowing a decree against them for a further sum was apparently passed under Order 41, Rule 33, Civil P.C.I do not see why it cannot in a case like the present pass an order against a party to the suit in his absence although it would have been sound exercise of discretion to give an opportunity to that party of appearing before him and of being heard. The limitation to the application of this rule has been pointed out by their Lordships of the Judicial Committee in the case of Mahomed Khaleel Shirazi v. Les Tanneries Lyounaises . The present case does not come within the rule of the decision of the Judicial Committee. Here the plaintiff not having appealed, his right to claim a decree for the excess amount against defendants 5 and 6 was barred and in his appeal against the other defendants the Court could not under Rule 33 grant a decree against persons not parties to the appeal. But defendant 4 who was one of the co-defendants could very well appeal to the appellate Court and say that he was not liable for the plaintiff's claim; and if in determining the point raised in the appeal the Court finds that the plaintiff is entitled to recover the amount charged upon the appellant from other defendants the Court may pass a decree against them though not parties to the appeal. It would have been much better if the Court had acted under Rule 20, Order 41, instead of Rule 33 and added defendants 5. and 6 as respondents to the appeal and heard the matter in their presence. But it is not necessary to discuss the matter any further as all the parties are now before us and we are in a position to adjust their respective rights without giving effect to the decree of the lower Court.

5. It is next argued on behalf of defendants 5 and 6 who are the appellants. in Appeal No. 1224 of 1926 that it should have been held that the plaintiff's suit was barred by limitation. The argument is based on certain facts which may be shortly stated. The money was realized from the plaintiff under process of law on 19th July 1920; the plaint was. presented in the Munsif's Court at Barisal on 18th July 1923; it was returned by that Court for want of jurisdiction for presentation in the proper Court on 20th March 1924. The 21st, 22nd and 23rd days of March being holidays the plaint was presented in the Munsif's Court at Khulna on the 24th March. On these facts the learned Subordinate Judge has held that the plaintiff's suit is not barred by the application of Section 14, Lim. Act, which gives an ex-tension of time to the plaintiff up till the 20th March and Section 4, Lim. Act, which gives him a further period till the 24th March. The learned advocate appearing for the appellants argues that Section 4, Lim. Act, cannot be applied to a case in which extension of time has been claimed under Section 14 and reference in this connexion is made to Abhoy Charan v. Gour Mohan Dutt 24 W.R 26 That case has no application because there the parties did not claim the return of the plaint immediately after it was decided that the suit was filed in a wrong Court and further that the suit was not instituted in the proper Court on the day on which it re-opened but it was instituted on the following day. Then it is argued that the plaintiff is not entitled to the benefit of Section 14 and Section 4 tacked together. In support of this contention reliance has been placed on the case of Ummathu v. Pathumma A.I.R. 1921 Mad. 654. The question raised in that case requires a good deal of consideration; but I do not wish to discuss the view taken by the learned Judges because on the facts that case is distinguishable from the present. There the plaintiff took advantage of Section 4 before instituting the suit and she instituted the suit in the wrong Court, after the period of limitation had expired during the holidays, on the reopening day of that Court. It is not clear but probably the proper Court was open when the time expired. The plaint was returned to the plaintiff and the suit was instituted in the proper Court. On the objection on the ground of limitation the Court held that as the suit had already become barred before it was presented in a wrong Court, Section 4 has no application to the case inasmuch as it contemplates the filing of a suit in the proper Court. One of the learned Judges, Ramesam, J., clearly puts the point before him for consideration:

Can the appellant get the benefit of Section 4 if the holiday precedes such periods.

6. The answer of the learned Judge was in the negative. The fact hero is that the plaint was presented and was returned to the plaintiff on 20th March and he should have presented it to the proper Court on the next day. It was impossible for him to do so for the Court was closed. In the Madras case the learned Judges have referred to some other cases . of that Court and adopted the view that under Section 4, Lim. Act, the fact whether the proper Court was closed, and not the wrong Court is the matter to be taken into consideration. It may be said on the facts of the case before us that it was not a question really under Section 4. The plaint was returned to the plaintiff and the plaintiff was bound to present it in the proper Court with as little delay as possible and it is evident that he could not do so before 24th March. This objection must accordingly be overruled.

7. The appellants in Appeal No. 1224 have also argued in the same strain as the plaintiff in the other appeal with reference to the liability of defendant 4. The decision of the question, therefore, will be held to apply to both these appeals. According to the principles that we have enunciated above we have to adjust the rights of the parties in this suit on grounds of justice. It is in evidence that the total amount recoverable under Samiraddin's decree was Rs. 1,380 ; each of the four cosharers was liable to pay Rs. 345 as his share of the debt. Defendant 4 paid Rs. 346 to the decree-holder for the amount which remained unrealized after the sale of the plaintiff's property. He thus paid whatever was due from him and must be held to have discharged himself from the debt ; but it is argued on behalf of the plaintiff that on the authority of the case Matungini Debi v. Brojeswari Banerji [1914] 20 C.L.J. 205 if the defendant had paid more than his share he could have claimed discharge. It so happened that in that case the defendant had paid more than his share but we see no reason for holding that if he does not pay more than his share he cannot claim exemption from liability to contribute towards the amount payable in liquidation of the debt of the cosharers. If that be the principle as suggested by the plaintiff, defendant 4 in this case has paid one rupee more than his proper share.

8. Next we have to look to the plaintiff's claim. He has paid Rs. 1,033 in partial discharge of the common debt. From this amount should be deducted the amount which he was liable to pay under the decree, namely, Rs. 345. This leaves a balance of Rs. 688, half of which is payable by defendants 1 to 3 and the other half by defendants 5 and 6 ; and this amount he is entitled to recover from those defendants. He has compromised the suit with defendants 1 to 3, against whom there can be no further claim. He is accordingly entitled to recover Rs. 344 with interest from defendants 5 and 6. The lower Courts have allowed the plaintiff interest at 12 per cent per annum. In most of the reported cases the rate of interest allowed in such cases is 6 per cent per annum. We should accordingly allow the plaintiff interest at the rate of six per cent per annum from 19th July 1920, the date on which money was realized from the plaintiff, to 18th July 1923, the date on which the plaint was presented in the Barisal Court. This gives us the amount Rs. 62 which the. plaintiff is entitled to recover from defendants 5 and 6. Under the decree of the lower Courts the plaintiff has already recovered from these defendants rupees 350-14-6. There will be a decree against them for the balance with interest at six per cent per annum till the date of realization.

9. As regards defendant 4 he paid a sum of Rs. 346 to the decree-holder on 2nd June 1922. This amount was paid on behalf of the four cosharers including the plaintiff. The plaintiff is entitled to recover interest from defendant 4 from 19th July 1920 to 2nd June 1922 and defendant 4 in his turn is entitled to recover interest from the plaintiff for one-fourth of the amount of Rs. 346 which he paid on 2nd June 1922 on behalf of the plaintiff up to the present date. On making a rough calculation we think no party should have any claim against the other.

10. The result is that appeal No. 1398 is dismissed with costs; Appeal No. 1224 is partly allowed and the decrees of the of the lower Courts are varied in the way suggested above. We allow no costs in this appeal. Costs of the Courts below in proportion.


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