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1936 DIGILAW 122 (CAL)

Kulada Prosad Mitra v. Giribala Debya

1936-03-09

body1936
JUDGMENT R.C. Mitter, J. - The question involved in this Rule is whether the Plaintiff Opposite Party's suit to recover from the Defendants Petitioners two-thirds of the costs which were realised from her by the Maharaja of Burdwan is maintainable. The said suit has been decreed by the lower Court. At the outset I may say that there is neither law nor equity on the side of the Petitioners and that the rule should be discharged. The Petitioners, (by which expression I include the predecessors of some of them) Giribala, (the Plaintiff), her son, and the Siddhantas had been re-Corded in the record-of-rights in Khatian No. 29 as co-tenants holding directly under the Maharaja of Burdwan. The Petitioners instituted a suit (Title Suit No. 211/574 of 1927) for a declaration that the said entry was wrong. The Maharaja of Burdwan, the Siddhantas and Giribala and her son were made Defendants in that suit. The case of the Petitioners in that suit was that they only were the direct tenants of the Maharaja of Burdwan and Giribala and her son and the Siddhantas were their under-tenants. The Maharaja. Giribala, her son, and the Siddhantas opposed the Petitioners' claim and supported the entry made in the record-of-rights. Giribala, her son and the Maharaja of Burdwan were on one side and had a common case against the Petitioners. That suit was decreed by the first Court and the Maharaja appealed, making the Petitioners, Giribala, her son and the Siddhantas Respondents. Giribala and her son also preferred an independent appeal; the said two appeals had the same scope, the case of both sets of Appellants being the same. These two appeals were heard together and allowed.. In this rule I am only concerned with the Maharaja of Burdwan's appeal. That appeal was allowed with costs against the Petitioners before me as also against Giribala and her son. Giribala and her son had supported Maharaja as appears from the judgment of the Appellate Court (Exhibit 4) and it is the Petitioners only who resisted the Maharaja's appeal. On the facts as they appear from the judgment of the Appellate Court, the entire costs of the Maharaja's appeal ought to have been thrown upon the Petitioners, who not only lost their suit but were found to have forged documents for the purpose of supporting their case against the Maharaja and Giribala and her son. On the facts as they appear from the judgment of the Appellate Court, the entire costs of the Maharaja's appeal ought to have been thrown upon the Petitioners, who not only lost their suit but were found to have forged documents for the purpose of supporting their case against the Maharaja and Giribala and her son. In the judgment it is simply said that Maharaja's appeal is decreed with costs. That would imply from the trend of the judgment that costs were allowed only against the Petitioners who only resisted the Maharaja's appeal. But in the decree as prepared the order for costs was against the Petitioners as also against Giribala and her son. The Maharaja realised the whole of the costs from Giribala. Hence she brought the present suit to recover two-thirds of the money realised from her by the Maharaja from the Petitioners. The decree for costs was a joint decree and it was admitted by the Petitioners in the lower Court that if Giribala's suit is a good suit, the Petitioners' liability would extend to two-thirds of the amount realised by the Maharaja from her. 2. Mr. Bhattacharya urges before me that her suit is not maintainable. He says that if a person discharges a joint decree for costs, he cannot recover any portion thereof from his co-judgment-debtors, unless he can show some equity in his favour, and inasmuch as Giribala has not alleged in her plaint what equity she had, her suit is a bad suit. For this proposition he has relied upon the Fakira v. Tasadduq Husain ILR 19 All. 462 (1897), Mulla Singh v. Jagannath Singh ILR 32 All. 585 (1910) and Nandlal v. Beni Madhob Singh I. L R. 40 All 672: S.C. 47 I. C. 989 (1918). These cases do lay down the proposition contended for by Mr. Bhattacharya, although in some of these cases the co-Defendants against whom a joint decree for costs had been made were either joint trespassers, or had set up antagonistic defences. These were some of the special features in those cases. However that may be, I do not agree with the broad proposition enunciated in those cases to the effect that a party who had been compelled to satisfy a joint decree for costs cannot sue the other joint judgment-debtors for contribution unless he can show some equity in his favour. These were some of the special features in those cases. However that may be, I do not agree with the broad proposition enunciated in those cases to the effect that a party who had been compelled to satisfy a joint decree for costs cannot sue the other joint judgment-debtors for contribution unless he can show some equity in his favour. My view is that such a joint decree creates a joint debt on the part of the judgment-debtors in favour of the successful party, and if any one of them is compelled to satisfy the whole, he is prima facie entitled to have contribution from his co-judgment-debtors, unless the latter can show any ground for being relieved. Even the Judges of the Allahabad High Court have in later decisions expressly dissented from the cases which Mr. Bhattacharya has relied upon [Ram Swarup v. Baij Nath ILR 43 All. 77 (1920), Babu Ram v. Badri Das 24 All. L J. 720: 95 I. C. 689 (1926) and Parsotam Das v. Lachmi Narain ILR 45. All. 99 (1922)]. The view I am taking is supported also by the Bombay High Court [Keshava v. Hari ILR 48 Bom.. 351 (1923)]. I accordingly discharge the rule with costs. Hearing-fee, two gold mohurs.