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Satya Bhushan Bandopadhyaya and ors. Vs. Krishnakali Bandopadhyaya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in24Ind.Cas.259
AppellantSatya Bhushan Bandopadhyaya and ors.
RespondentKrishnakali Bandopadhyaya and ors.
Cases ReferredMuhammad Yusuf Khan v. Abdul Rahman Khan
Excerpt:
contract act (ix of 1872), sections 69, 70 - contribution--suit for contribution, meaning of--test of contribution--mutuality--provincial small cause courts act (ix of 1887), schedule ii, article 41--rent decree by co--sharer landlord--sale under decree--passing of entire tenancy--satisfaction of decree by person likely to be affected by sale--suit for money paid. - 1. this is an appeal by the plaintiffs in, what is described as a suit for contribution. the circumstances antecedent to the litigation are not in dispute and may be briefly narrated. the case for the plaintiffs is that the defendants held a tenancy under chandra nath roy and another person. in november 1907, the plaintiffs purchased the interest of the first defendant in that tenancy. the landlords sued the defendant for rent due on account of the years 1311 to 1313 and obtained a decree. this decree was obtained by some out of the entire body of landlords who claimed a half share in the superior tenancy. the land lords took out execution of this decree and were about to bring the properties to sale. the plaintiffs thereupon deposited in court the sum of rs. 135-13-6 to statisfy the.....
Judgment:

1. This is an appeal by the plaintiffs in, what is described as a suit for contribution. The circumstances antecedent to the litigation are not in dispute and may be briefly narrated. The case for the plaintiffs is that the defendants held a tenancy under Chandra Nath Roy and another person. In November 1907, the plaintiffs purchased the interest of the first defendant in that tenancy. The landlords sued the defendant for rent due on account of the years 1311 to 1313 and obtained a decree. This decree was obtained by some out of the entire body of landlords who claimed a half share in the superior tenancy. The land lords took out execution of this decree and were about to bring the properties to sale. The plaintiffs thereupon deposited in Court the sum of Rs. 135-13-6 to statisfy the decree. The plaintiffs then commenced this action for declaration that, the defendants were liable to pay the judgment-debtor and -that they themselves had paid the money under circumstances which entitled them in equity to recover the same from the defendants. The suit, however, was described as one for contribution, though according to the plaintiffs they themselves were not liable to bear any portion of the liability under the decree. The defendants resisted the claim on various grounds which need not be stated for our present purpose. The Court of first instance found on the merits in favour of -the plaintiffs, but dismissed their claim on the ground that as the decree had been obtained by co-sharer landlords, the interest of the plaintiffs in the tenancy was not in jeopardy, and that the payment made by them must consequently be deemed voluntary. Upon appeal this view has been accepted by the District Judge and the decree of dismissal has been affirmed by him. The plaintiffs have now appealed to this Court.

2. The first question which requires consideration is, whether this appeal is competent in view of the provisions of Section 102 of the Civil Procedure Code. On behalf of the appellants, it has been argued that the suit falls within the scope of Article 41 of the second Schedule to the Provincial Small Cause Courts Act which excludes from the jurisdiction of Small Cause Courts all suits for contribution by a sharer in joint property in respect of a payment made by him of money due from a co-sharer. It has been contended that this is a suit for contribution of the description mentioned in Article 41, because it has been commenced by the plaintiffs who are co-sharers in a joint property and is in respect of a payment made by them of money due from the defendants who are co-sharers of the plaintiffs. In our opinion, this contention is manifestly fallacious. As is pointed out in the Oxford Dictionary (Volume II, page 923), contribution signifies payment by each of the parties interested of his share in any common liability. Consequently an action for contribution is a suit brought by one of such parties who has discharged the liability common to them all to compel the others to make good their shares. [Motichand v. Bajrang Sahai 17 Ind. Cas. 45 : 16 C.L.J. 148., Jognarain v. BadriDas 13 Ind. Cas. 144 : 16 C. L. J, 156,]. Mutuality is thus the test of contribution. If A and B are jointly liable for a sum of money and A alone satisfies the whole debt, he is entitled to call upon B to contribute to the extent .of his proportionate share, and, conversely, if B alone pays the whole debt, he is entitled to call upon A to contribute. Judged by these tests : the present suit cannot correctly be described as a suit for contribution. In the case before us, the plaintiffs deny that they were to any extent liable to satisfy the judgment-debt. Their case is that the money payable under the decree was justly recoverable from the defendants alone. It, is not a case of satisfaction of a joint liability, nor does the test -of mutuality apply. The plaintiffs do not admit that they could have been called upon to contribute if the defendants had paid the money : their theory on the other hand is that if the defendants had made the payment, it would have been in satisfaction of an exclusive liability of the defendants. The suit as formed cannot be deemed a suit for contribution : it is really a suit by the plaintiffs for recovery of money paid by them for the benefit of the defendants. A suit of that character is, under certain circumstances, maintainable in law : but it cannot properly be described as a suit for contribution. Consequently Article 41 of the second Schedule to the Provincial Small Cause Courts Act does not cover the present case. The suit is clearly one of a nature cognizable by a Court of Small Causes, and as the sum claimed is less than Rs. 500, the appeal is incompetent under Section 102, Code of Civil Procedure, and must accordingly be dismissed.

3. It has finally been contended on behalf of the plaintiffs that if the appeal is incompetent, the Court may treat the memorandum of appeal as an application for revision and give the plaintiffs such reliefs as they may deserve under all the circumstances. This prayer raises the question of the nature of the errors, if any, which we are invited to rectify. The Courts below have refused relief to the plaintiffs, because the payment made by them was voluntary, as the decree for rent was obtained by co sharer landlords who could not have executed it so as to prejudice the interest of the plaintiffs. This view is clearly erroneous and is opposed to the decisions of this Court in Mohendra Ghoshal v. Bhuban Mardana Lal 6 Ind. Cas. 810 : 12 C.L.J. 566 : 14 C.W.N. 945 : 38 C. 1., Pankhabati Chaudhnrani v. Nonihal Singh 21 Ind. Cas. 207 : 19 C.L.J. 72 : 18 C.W.N. 778(sic), Prosonna Kumar Basu, v. Jamaluddin Mahomed 15 Ind. Cas. 55 : 18 C.W.N. 327. and Khettra Nath Roy. v. Mahomed Uzir Muktear 21 Ind. Cas. 102 : 19 C.L.J. 525. The fact that the decree had been obtained by co-sharer landlords did not necessarily lead to the inference that the sale of the right, title and interest, of the judgment-debtors would not have affected the interest of the present plaintiffs, because, as was pointed out in the case of Nitayi Behart Saha Paramanick v. Hari Govinda Saha 26 C. 677., a sale of the right, title and interest of the judgment-debtors in execution of a decree for rent obtained by a co-sharer landlord may, in certain circumstances, pass the entire tenancy. The question of the precise effect of a sale in those circumstances would, at any rate, be a matter for controversy and the party liable to be affected would consequently be entitled to satisfy the decree to protect himself from the apprehended injury to his right : he would also be entitled, if he made the payment, to be reimbursed under Section 69 or Section 70 of the Indian Contract Act [Pankhabati Chaudhnrani v. Nonihal Singh 21 Ind. Cas. 207 : 19 C.L.J. 72 : 18 C.W.N. 778(sic)]. The view taken by the Courts below must accordingly be deemed erroneous in law. But the error they have committed is one of law, and as it has not affected the jurisdiction of the Court, we cannot interfere in the exercise of our revisional powers [Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11. I. A. 237., Muhammad Yusuf Khan v. Abdul Rahman Khan 16 C. 749 : 16 I. A. 104.].

4. The prayer of the plaintiffs that the memorandum of appeal be treated as an application for revision must consequently fail.


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