1. This is an appeal by the plaintiff Kanailal Kundu arising out of a suit for contribution brought by him against a number of defendants. We are now only concerned with Gopal Das Mukherjee defendant No. 5 or rather, as that defendant is dead, his legal representatives, and with Mohini Mohan Mukherjee, the defendant No. 6.
2. Gopal Das Mukherjee defendant No. 5 was expressly exempted from personal liability under the decree in favour of Akhoy Kumari Debi passed by this Court, and the learned Pleader for the appellant admits that he cannot press the appeal as against the representatives of this defendant, more particularly as Gopal Das Mukherjee had no further interest left in the properties charged.
3. As against defendant No. 6 it is urged that he was made personally liable by the decree of the lower Appellate Court in favour of Akhoy Kumari Debi and that he is liable to contribute. The answer to the plaintiff's suit for contribution against this defendant is that the decree of the Court of first instance in the maintenance suit, while providing that certain defendants should pay off the decretal amount within four months from the date of the decree, went on to order that, on their failure to do so, the money should be realized by sale of the properties hypothecated. It was, therefore, quite unnecessary for the plaintiff to pay off this debt, or any part of it, in order to save the properties charged from being sold. His reason for doing this is obvious, because we are told that he has now become possessed of four-fifths of the properties charged. It was, therefore, to his benefit to save the pro-parties charged from the burden of this debt at the expense of the persons who were his co-defendants in that suit. We think, therefore, that his suit against the defendant No. 6 wag rightly dismissed by the learned District Judge.
4. Then comes the question of the set off which was claimed by defendant No. 6 in his written statement. He asked that a decree might be passed in his favour for Rs. 345.12-6, which represented the four-fifths share which was held by the plaintiff in the property together with interest;. It appears that the defendant No. 6 made a payment of Rs. 430 on 12th April 1911. He did this to save from. attachment, not the properties which were charged with the payment of maintenance of Akhoy Kumari Debi, but other properties of his own which had been attached by that lady in execution of her decree. Here again, the defendant No. 6 was equally at fault with the present plaintiff in paying off money which , he was not really bound to pay. He might have answered in those execution proceedings that the lady must first proceed against the properties charged and it would certainly have been to his advantage to do so because, as we understand, he has no further interest in those properties. However that may be, his right to contribution from the plaintiff or any other of his co-judgment-debtors accrued from 12th April 1911. This suit was filed on 17th September 1914 and his written statement claiming the set-off was filed on 28th January 1915. By that time any claim which he had against the plaintiff for contribution had become time-barred, and it could not be said to be a debt legally recoverable by the defendant No. 6 from the plaintiff. For this reason alone his claim to set-off must necessarily fail. There is the further objection to his set off regarded as a substantive claim, that he was under no obligation to pay this money and that he ought not to have paid it but should have insisted on the plaintiff Akhoy Kumari Debi proceeding against the properties charged.
5. This appeal must be dismissed against the representatives of defendant No. 5 with costs. It must also be dismissed against the defendant No. 6 as regards contribution, but the decree in his favour for set-off must also be reversed and his claim on that account dismissed. As between him and the plaintiff we make no order as to costs.
6. I agree.