JUDGMENT Sen, J. - This is a suit for contribution and It arises out of the following facts. The Plaintiff Kanto Mohan Mullick and the Defendants Gour Mohan Mullick, Giri Mohan Mullick, Jogendra Nath Mullick and Panchanan Mullick are brothers. On June 28th, 1903, they executed a mortgage in favour of J.C. Galstaun to secure the payment of a loan of Rs. 3 lakhs with interest at 12 per cent. per annum. 2. On November 15th, 1909, Galstaun brought a suit being Suit No. 1028 of 1909 based on the personal covenant contained in this mortgage against the five brothers, claiming the recovery of the sum of Rs. 5,23,500 which represented the sum of Rs. 3 lakhs as principal and Rs. 2,23,500 as interest. The plaint was amended and the suit was converted into an ordinary mortgage suit. At the time of trial, however, the claim for relief based upon the charge was abandoned and relief was claimed on the personal covenant. 3. The Plaintiff Kanto had become insolvent prior to the suit and the Official Assignee was substituted in his place. Thereafter, Galstaun withdrew his claim in the suit against the Official Assignee reserving his right to proceed against Kanto in Insolvency. The suit proceeded against the other four brothers Gour, Giri, Jogendra and Panchanon and Greaves, J., passed a decree against them for the amount claimed, the decree being based on the personal covenant. 4. The Defendant Jogendra appealed against the decree, the appeal being Appeal from Appellate Decree No.31 of 1920. On December 17th. 1920, the suit and the appeal were compromised. The main terms of the compromise were as follows: The decree of Greaves, J., was set aside and a decree for Rs. 2,75,000 carrying interest at 6 per cent. per annum was passed in favour of Galstaun against the four brothers Gour, Giri, Jogendra and Panchanon in full settlement of Galstaun's claim against them with liberty to Galstaun to proceed against Kanto Mohan Mullick for the balance of his claim without recourse to the four other Mullicks mentioned above. 5. Galstaun then proceeded against Kanto in Insolvency. Kanto had shown a disputed debt of 60 thousand as being due to Galstaun in his schedule. This represented 1|5 of 3 lakhs which was the sum mentioned in the mortgage. Galstaun claimed the entire 3 lakhs. 5. Galstaun then proceeded against Kanto in Insolvency. Kanto had shown a disputed debt of 60 thousand as being due to Galstaun in his schedule. This represented 1|5 of 3 lakhs which was the sum mentioned in the mortgage. Galstaun claimed the entire 3 lakhs. Greaves, J., held on March 1st, 1921, that Galstaun was entitled to prove for 2 lakhs with interest thereon at 12 per cent. from the date of the mortgage until the date of insolvency. An appeal was taken by Kanto Mohan Mullick from this decision resulting in an order of remand. 6. The matter was heard on remand by Buckland, J., who by his order dated June 1st, 1927, found that the insolvent Kanto's debt to Galstaun amounted to Rs. 2,60, 762-14 up to May 16th, 1927. 7. An appeal was taken from this order by Kanto Mohan Mullick. Rankin, C.J., delivered the judgment of the Court on February 13th, 1928, allowing Galstaun to prove for a debt of 3 lakhs four thousand eight hundred and sixty-one being the total sum due under the mortgage of June 28th, 1903. 8. Against this decision an appeal was taken to the Privy Council. The appeal was settled, on July 8th, 1929, the terms of settlement being, inter alia, that Kanto Mohan Mullick would pay to the Imperial Bank of India to the account of J.C. Galstaun the sum of Rs. 1,35,000 in full settlement of Galstaun's claim and costs against the estate of Kanto irrespective of the amount to be recovered by Galstaun from the other four Mullick brothers. This amount would carry interest at 6 per cent, if not paid within six months. 9. Galstaun assigned his rights in respect of his dues from the five Mullick brothers to the Imperial Bank of India. By June 8th, 1937, the four Mullick brothers other than Kanto paid to the Imperial Bank the sum of Rs. 4,41,000 in liquidation of their dues to the Bank and on June 23rd, 1937, Kanto paid to the Imperial Bank the sum of Rs. 1,95,149-7-2 in liquidation of his dues under the settlement of July 8th, 1929. 10. The total amount paid by the five brothers amounted to Rs. 6,36,149-7-2. By these payments the entire liability to Galstaun has been liquidated. The Plaintiff Kanto asserts that he is liable to pay only 1|5 of this sum, i.e., the sum of Rs. 1,95,149-7-2 in liquidation of his dues under the settlement of July 8th, 1929. 10. The total amount paid by the five brothers amounted to Rs. 6,36,149-7-2. By these payments the entire liability to Galstaun has been liquidated. The Plaintiff Kanto asserts that he is liable to pay only 1|5 of this sum, i.e., the sum of Rs. 1,27,229-14 and he claims by way of contribution Rs. 67,919-9 which represents the difference between the sum of Rs. 1,95,149-7-2 actually paid by him and the sum of Rs. 1,27,229-14 which according to him represents his share of the liability. The Plaintiff also claims the sum of Rs. 10,164 as representing a 4|5 share of the costs incurred by him in the various proceedings had between him and Galstaun. Lastly, the Plaintiff claims interest on these amounts at 9 per tent, per annum from July 23rd, 1937. In the plaint as it stood originally the claim was made against all the four Defendants jointly. At the hearing, with my permission the plaint was amended and each Defendant was made liable for a 1/4 share only of the amount claimed. Mr. S.M. Bose for the Plaintiff stated that he does not propose to rest his case upon any specific agreement between the parties to contribute. He bases his case entirely upon the general law of contribution. Learned Counsel for the Defendants likewise gave up their case that there had been any specific agreement between the parties whereby the Plaintiff gave up this right to contribution. He resisted the Plaintiff's claim on other grounds which I shall presently state. 11. The facts stated above are not now challenged. The points urged on behalf of the Defendants broadly put are these: -- (1) The Plaintiff is entitled to contribution only if he has paid more than what he could have been compelled to pay as his share of the joint liability and otherwise. The Plaintiff has not paid more than a one-fifth share of the debt payable under the mortgage; he is therefore not entitled to get contribution from the other mortgagors even though each of them has paid a lesser amount than he has in liquidation of the common liability. (2) Contribution can only be claimed in respect of compulsory payments. Here the payment was by consent and therefore the Plaintiff's claim must fail. (2) Contribution can only be claimed in respect of compulsory payments. Here the payment was by consent and therefore the Plaintiff's claim must fail. (3) By reason of certain events which have occurred and by reason of the conduct of the parties the joint liability under the mortgage was destroyed. The liability was split up into separate liabilities and the parties became separately liable. The payments made by them were in respect of their separate liability and could not be referred to any joint promise; therefore the Plaintiff could not claim any contribution. In any event the Plaintiff by his conduct is estopped from claiming contribution. (4) The amount paid by the Plaintiff to Galstaun includes costs. The Plaintiff is not entitled to contribution for costs and as there is nothing to show how much of the sum paid represents costs the Plaintiff's claim must fail. (5) The Plaintiff's claim for contribution with respect to the sum of Rs. 12,705 which represents the costs incurred by him is not maintainable and in any event the Defendants would be entitled to set off the costs incurred by them in getting their liability reduced. 12. These were the grounds argued on behalf of the Defendants. 13. In support of the first branch of his arguments Mr. Sarat Bose for the Defendants points out that if it were not for the compromises entered into by the Defendants and the Plaintiff with Galstaun, the Plaintiff would have had to pay one-fifth of the dues under the mortgage and that the amount that he has paid is considerably less than this. He contends that the Plaintiff in these circumstances has no right to claim contribution. His view further is that the Defendants are not bound to share with the Plaintiff the benefit of their compromise with Galstaun. It is true that the Plaintiff has paid less than his share of the debt as it stood originally under the mortgage but in my opinion this does not disentitle him from claiming contribution from the Defendants. The law of contribution among joint promisors is to be found so far as this country is concerned in sec. 43 of the Indian Contract Act. The law of contribution among joint promisors is to be found so far as this country is concerned in sec. 43 of the Indian Contract Act. Sec. 43 runs thus: 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 each default in equal shares. 14. We are concerned with the second paragraph of the section. By its terms each joint promisor is entitled to insist upon an equal performance by all the joint promisors of the promise. This is clear from the section. Now if the promisee remits the performance of part of the promise in favour of one or some of the joint promisors would such remission destroy the right of the other joint promisors to demand that all the joint promisors should contribute equally to the performance of the remaining portion of the promise? If the view expressed by Mr. Sarat Bose on behalf of the Defendants be correct, then the right of contribution would be destroyed in these circumstances. I can see no reason for holding that it would. Under sec. 63 of the Indian Contract Act every promisee may remit in part the performance of the promise made to him and claim performance of the remaining part. When there has been such remission the promise which has to be performed by the promisor or, if there has been a joint promise, by the joint promisors consists of the remaining part of the original promise, and by virtue of sec. 43 of the Indian Contract Act each joint promisor may compel any other joint promisor to contribute equally with himself to the performance of the promise. The right to contribution arises only after performance of the promise and when determining questions regarding the right of contribution one must direct one's attention to the state of things existing at the time of the performance of the promise. The right to contribution arises only after performance of the promise and when determining questions regarding the right of contribution one must direct one's attention to the state of things existing at the time of the performance of the promise. If at the time of this performance there exists a joint promise then there will be a right of contribution with respect to the performance of that promise as it then stands. 15. In this case, by the compromises with the mortgagors, Galstaun remitted in part the performance of the contract under the mortgage. The Plaintiff and the Defendants had to perform the remaining part of the promise and in my opinion each of them is entitled by reason of the provisions of sec. 43 of the Indian Contract Act to demand that all of them should share equally the burden of such performance. I am for the moment assuming that there was a joint promise existing at the time of the various payments made by the parties. It is not in the power of the promisee by making remissions to affect the right of one joint promisor to claim from the other joint promisors that they should share equally in the burden of discharging the contract. Nor can the promisee destroy the jointness of the promise and convert it into several promises unless all the promisors consent. The right of contribution is something which concerns the joint promisors only, it has nothing whatsoever to do with the conduct of the promisee. I am not aware of any section in the Contract Act or any other law which provides that the promisee by remitting part of the performance of the contract in favour of all or any of the joint promisors can affect the right of the joint promisors to call upon one another to perform the contract equally. On the other hand sec. 44 of the Contract Act recognises the principle underlying the view expressed by me that whatever the promisee may do, so long as a joint promise has to be performed the joint promisors have the right to demand of one another that the burden of performance shall be shared equally. Sec. 44 says that a release 'by the promisee of one of the joint promisors from performance of the promise will not free the joint promisor so released from responsibility to the other joint promisors. Sec. 44 says that a release 'by the promisee of one of the joint promisors from performance of the promise will not free the joint promisor so released from responsibility to the other joint promisors. In my opinion, the fact that by reason of the remissions made by Galstaun the Plaintiff has had to pay less than one-fifth of the mortgage debt cannot have the effect of depriving the Plaintiff of the right to call upon the Defendants to share equally in the performance of the unremitted part of the contract. 16. This is what I consider to be the law as laid down in secs. 43 and 44 of the Indian Contract Act. The portions of these sections which relate to the right of contribution are founded upon the well-known English equitable principle that "in aequali jure the law requires equality." The leading case on the subject is that of Dering v. Earl of Winchelsea (1).[1787]1 Cox 318 Lord Redesdale, in the case of Stirling v. Forrester (2) [1821]3 575 590 596 commenting upon the case of Dering v. Lord Winchelsea (1) said: The principle established in the case of Dering v. Lord Winchelsea (1), is universal, that the right and duty of contribution is founded in doctrines of equity, it does not depend upon contract. If several persons are indebted and one makes the payment, the creditor is bound in conscience, if not by contract to give to the party paying the debt all his remedies against the other debtors.... It would be against equity for the creditor to exact or receive payment from one, and to permit or by his conduct to cause, the other debtors to be exempt from payment. He is bound seldom by contract, but always in conscience, as far as he is able, to put the party paying the debt upon the same footing with those who are equally bound.... The decision of Dering v. Lord Winchelsea (1), proceeded on a principle of law which must exist in all countries, that when several persons are debtors all shall be equal. To the same effect are the observations of Lord Eldon in Craythorne v. Swinburne (3).[1807]14 Ves 160 He discusses the case of Dering v. Earl of Winchelsea (1) in which he had appeared as Counsel and which was decided against his client. To the same effect are the observations of Lord Eldon in Craythorne v. Swinburne (3).[1807]14 Ves 160 He discusses the case of Dering v. Earl of Winchelsea (1) in which he had appeared as Counsel and which was decided against his client. He said that he was now converted to the view expressed in that case and observed: The doctrine of contribution.... stands upon this; that all sureties are equally liable to the creditor; and it does not rest with him to determine, upon whom the burden shall be thrown exclusively; that equality is equity; and if he will not make them contribute equally, this court will finally by arrangement secure that object... It has long been settled that if there are co sureties by the same instrument and the creditor calls upon either of them to pay the principal debt, or any part of it, that surety has a right in this court either upon a principle of equity or upon contract, to call upon his co-surety for contribution. 17. Although the law of contribution so far as this country is concerned is to be found in the Indian Contract Act, nevertheless, I have referred to these English cases because, in my opinion, they contain a most lucid and accurate exposition of those principles of the English Law of Contribution which have been incorporated in the above-mentioned sections of the Indian Contract Act. In this connection I would also refer to the case of Wolmershausen v. Gullick (4) L.R [1893] 2 Ch 514 where all these cases have been reviewed and discussed. 18. The second point is, in my opinion, entirely without substance. There is nothing in the Contract Act which says that before contribution can be claimed there must be a compulsory payment. Sec. 43 permits any joint promisor performing the promise to claim contribution. It makes no distinction between voluntary or compulsory performance. There is no authority for the proposition urged on behalf of the Defendants and in my opinion it needs no further consideration. 19. I now take up the third point. The argument in support of it is two-fold. Sec. 43 permits any joint promisor performing the promise to claim contribution. It makes no distinction between voluntary or compulsory performance. There is no authority for the proposition urged on behalf of the Defendants and in my opinion it needs no further consideration. 19. I now take up the third point. The argument in support of it is two-fold. First it is said that the conduct of the parties and the events which have happened have extinguished the jointness of the liability of the Plaintiff and the Defendants under the mortgage and have split it up into separate liabilities; secondly, it is argued that the Plaintiff by his conduct in the various proceedings connected with the mortgage has estopped himself from claiming contribution. In considering this point it must be remembered that in whatever manner the Defendants or Galstaun may have treated the joint debt in the various proceedings had between them, the Plaintiff's right to treat the debt as a joint debt and to claim contribution cannot at all be affected unless he himself treated the debt as being no longer joint or agreed to give up his right to contribution. As I stated before Counsel for both sides at the opening stages of this case stated expressly that they do not rely upon any agreement between the parties either to establish the right to contribution or to establish any relinquishment of such right. In view of these statements, I held that certain letters sought to be proved by Mr. B.C. Ghose on behalf of the Plaintiff were inadmissible in evidence. Mr. Ghose stated that he wished to rely on the letters not as evidencing any agreement between the parties but only as proving their conduct. I was unable to accept the view. The letters are therefore left out of consideration. I now turn to the circumstances relied on by the Defendants. 20. In my opinion, the fact that Galstaun in his suit on the mortgage proceeded ultimately against the four Defendants only and abandoned the suit against Kanto cannot have any effect on the jointness of the liability. The letters are therefore left out of consideration. I now turn to the circumstances relied on by the Defendants. 20. In my opinion, the fact that Galstaun in his suit on the mortgage proceeded ultimately against the four Defendants only and abandoned the suit against Kanto cannot have any effect on the jointness of the liability. Again, the fact that the four Defendants and Galstaun compromised the suit in its Appellate stage and that Galstaun accepted a definite sum as liquidating the debt of the four Defendants cannot also affect the Plaintiff's right to contribution inasmuch as he was not a party to the suit of compromise. Learned Counsel for the Defendants stressed the fact that on November 11th, 1907, the Plaintiff in his Schedule in the insolvency proceedings showed a debt of Rs. 60,000 which represented one-fifth of the joint debt under the mortgage in favour of Galstaun, and he wished me to conclude from this fact that the Plaintiff no longer treated his liability as a joint one and that he was splitting up the liability and giving up his right to contribution. I am unable to draw any such inference from the fact that Kanto showed Galstaun as a creditor for Rs. 60,000 in his Schedule. All that this entry in the schedule implied was that Kanto's share in the joint liability was Rs. 60,000 and that his estate was liable to the extent of Rs. 60,000 only. This may or may not be a correct view of the law but this entry in the Schedule does not in any way indicate that Kanto was giving up his right to contribution if he were made to pay more than his share of the joint liability. 21. Learned Counsel next referred to the affidavits sworn by Kanto on April 24th, 1920, and July 10th, 1920, in the insolvency proceedings. These affidavits were in opposition to Galstaun's application for the insertion of a sum of Rs. 3,00,000 in Kanto's Schedule instead of Rs. 60,000. Galstaun was trying to make Kanto liable for the entire debt and Kanto was resisting Galstaun's claim. In doing so Kanto took up all possible defences but in none of them is there anything to show that he was absolving his brothers from their liability to Contribution. 3,00,000 in Kanto's Schedule instead of Rs. 60,000. Galstaun was trying to make Kanto liable for the entire debt and Kanto was resisting Galstaun's claim. In doing so Kanto took up all possible defences but in none of them is there anything to show that he was absolving his brothers from their liability to Contribution. If a joint debtor denies liability it does not fol-low that he is giving up the right to contribution if the Court decides against him. In this case, the Court held against Kanto's contentions and ultimately, as I have stated before, Kanto and Galstaun settled the matter. There is nothing in the insolvency proceedings which would debar Kanto from claiming contribution. 22. Learned Counsel for the Defendants next drew my attention to the fact that in the settlement effected between Galstaun and the four Defendants on December 17th, 1920, of Suit No. 1028 of 1909 instituted by Galstaun against them the Defendants agreed to charge their property for Rs. 2,25,000 in favour of Galstaun. He argued that thereafter the liability should be considered as no longer joint. I am unable to appreciate this argument. As I have said before the Defendants and Galstaun by their conduct cannot take away Kanto's right to contribution. 23. The next incident relied upon by the Defendants is the consent order dated December 16th, 1921, in Suit No. 1223 of 1917. This was a suit instituted by the Defendants Gour Mohan Mullick and Giri Mohan Mullick against the Plaintiff Kanto Mohon Mullick and his two other brothers Panchanon and Jogendra and others for the possession of that portion of the estate of Gopal Lal Seal, uncle of the parties, which was allotted to one of his widows, Kumudini. By consent of all the parties an order was made on December 16th 1921, whereby the Official Receiver in the suit was empowered to sell premises 11-8 and 11-29, Lower Chitpore Road, known as the Tiretta Bazar properties and pay out of the sale proceeds the amount due to Galstaun from the four Defendants under the consent decree passed on December 17th, 1920, in Suit No. 1028 of 1909 and whereby the claim under the said decree as well as such amount as may be found due to Galstaun from Kanto in the insolvency proceedings which were then under appeal were made a charge upon the said properties. Learned Counsel for the Defendants argued that the form of this consent order to which Kanto and Galstaun were parties showed that the joint liability under the mortgage of 1903 was no longer in existence and that it had been replaced by two separate liabilities one of the four Defendants, and the other of Kanto. He points out that the charge created was not with respect to a joint liability but with respect to two separate liabilities. I have carefully considered this consent order which is Ex. 6 but I am unable to see in it any relinquishment of the right to contribution or any destruction of such right. The property which was charged belonged jointly to the Plaintiff and the four Defendants. Galstaun who had the right to sue the Mullicks jointly or severally chose to sue the four Defendants separately and to prove his claim in insolvency against the Plaintiff. This action on his part could not destroy the jointness of the debt or the right to contribution by the joint debtors inter se. By the order of December 16th, 1921, all that was done was that the joint property was charged with the payment of the dues under the consent decree obtained by Galstaun against the Defendants and also with the payment of such amount as may be found due in the insolvency proceedings against Kanto. Both payments arose out of the joint debt. I am unable to appreciate how this order can have the effect of destroying the jointness of the debt or of depriving Kanto from getting contribution if he was made to pay more than the Defendants in liquidation of the debt. 24. My attention was also drawn to the affidavit sworn by Kanto on September 15th, 1923 (Ex. 15). Here also I can descern nothing which would indicate that Kanto's right to contribution was being given up. The same may be said of the terms of settlement filed on October 8th, 1923, in the insolvency proceedings. Therein Kanto agreed, inter alia, that the claim of Galstaun alter proof would be paid out of the sale proceeds of certain Calcutta properties. 25. Then there is the order, April 16th 1924, passed in Suit No. 1223 of 1917. It deals with the manner of disposal of the sale proceeds to be obtained by the sale of certain properties belonging to Kanto and his brothers. 25. Then there is the order, April 16th 1924, passed in Suit No. 1223 of 1917. It deals with the manner of disposal of the sale proceeds to be obtained by the sale of certain properties belonging to Kanto and his brothers. Kanto is to withdraw 1|5 of the sale proceeds as his share after paying certain debts and from the balance Galstaun's dues from the four Defendants was to be paid. This arrangement for paying Galstaun's dues from the four Defendants out of the sum allotted to them and not from the entire sum realised by the sale of the joint properties it is contended indicates that the joint debt was altered into separate debts. What I have said before applies to this order as well. An arrangement like this does not destroy the jointness of the liability or take away the right of contribution. 26. After the order of April 16th, 1924, certain consequential and incidental orders were passed on the same basis and Galstaun was paid certain sums towards liquidation of the dues of the four Defendants out of their shares in the sale proceeds. In view of what I have already said, I hold that these orders or payments did not have any effect on the liability to contribution. 27. The next circumstance stressed by learned Counsel for the Defendants is the suit instituted by Galstaun being Suit No. 1761 of 1926 against the five Mullicks to enforce the charge created by them in his favour on April 9th, 1925, in Suit No. 1223 of 1917 over certain premises in Dhurrumtolla Street and Colootola Street. The charge was for the sum payable by the four Defendants to Galstaun under the consent decree passed in Suit No. 1028 of 1919 and for such sum as may be found due to Galstaun from Kanto in the insolvency proceedings. In this suit Galstaun claimed no relief against Kanto as his dues in the insolvency proceedings had not yet been ascertained. An application was made however for a Receiver over their properties and Kanto resisted it on the ground that Galstaun's claim as against him was barred by limitation and was otherwise not maintainable. As the claim against Kanto was disputed no Receiver was appointed over Kanto's share of the property. An application was made however for a Receiver over their properties and Kanto resisted it on the ground that Galstaun's claim as against him was barred by limitation and was otherwise not maintainable. As the claim against Kanto was disputed no Receiver was appointed over Kanto's share of the property. It is argued that this conduct of Kanto precludes him from now saying that the debt was joint and that what he has paid was paid with reference to any joint debt. I have indicated before that in resisting Galstaun's claim against him Kanto cannot be taken as abandoning his right to contribution nor can it be said that this conduct had the effect of changing a joint debt into separate ones. 28. These in the main are the circumstances relied on by the Counsel for the Defendants in support of this third point. I am unable to find any circumstance which destroyed the right to contribution or any conduct on the part of Kanto which estops him from claiming contribution from the Defendants. Kanto contested Galstaun's claim against him on all possible grounds but at no stage did he by his conduct make any declaration express or implied giving up his claim to contribution against the Defendants nor were the Defendants induced to change their position regarding this debt in any way by any thing that Kanto did or said. No question of estoppel therefore arises. 29. I now take up for consideration the fourth point raised viz., that the Plaintiff is not entitled to claim contribution for the costs payable to Galstaun and as the sum paid by him includes such costs and as the amount of the costs cannot be ascertained the entire claim must fail. In support of this argument my attention was drawn to a passage in Halsbury's Laws of England, Vol. 7, p. 27 (Hailsham Edition) where the learned author says: -- The Defendant is not liable in this form of action to any contribution until the amount actually due from him has been ascertained nor, as a general rule, can the Plaintiff require other persons to contribute to the costs which he has been compelled to pay in the proceedings which established his liability. Two cases Knight v. Hughes [1828] 3 C.& P 467:172 Eng.Rep,504 and Roach v. Thompson (6), [1830] 4 C.& P 194:172 Eng.Rep,667.were also cited in support of this view. Two cases Knight v. Hughes [1828] 3 C.& P 467:172 Eng.Rep,504 and Roach v. Thompson (6), [1830] 4 C.& P 194:172 Eng.Rep,667.were also cited in support of this view. In both these cases the claim for contribution for the costs paid by the Plaintiff to the creditor in the creditor's suit was disallowed. As far as I have been able to gather there was no provision in the contract in those cases that the creditor was entitled to get the costs of realising his dues from all the debtors jointly. It is also not clear whether the passage in Halsbury refers to costs payable to the creditor or costs payable to the debtor's own attorney. In the present case what is the promise made by the mortgagors? They jointly promised to pay the mortgagee all his costs which may be incurred for the realisation of his dues. This is one of the terms of the contract. The payment of the costs was part of the joint promise. I have pointed out before that under sec. 43 of Indian Contract Act each joint promisor is entitled to insist that the burden of performing the joint promise be shared equally by all the joint promisors. The Plaintiff is therefore entitled to claim contribution regarding the costs paid to Galstaun by him. The fourth point therefore fails. 30. The fifth and last point relates to the costs incurred by the Plaintiff in the legal proceedings had between him and Galstaun, i.e., the costs which the Plaintiff has had to pay to his own attorney. The position regarding the payment of these costs is different. There is no joint promise regarding these costs and sec. 43 of the Indian Contract Act would not apply. What has to be decided is whether under general equitable principles the Plaintiff's co-debtors should be made to contribute towards these costs. I do not think that there are any grounds upon which the Plaintiff can claim contribution regarding these costs. When these costs were incurred Galstaun had already settled his claim so far as the Defendants were concerned. The Plaintiff was fighting Galstaun's claim against himself and he incurred the costs in getting that claim reduced. I do not think that there are any grounds upon which the Plaintiff can claim contribution regarding these costs. When these costs were incurred Galstaun had already settled his claim so far as the Defendants were concerned. The Plaintiff was fighting Galstaun's claim against himself and he incurred the costs in getting that claim reduced. It is true that indirectly the Defendants have gained by the reduction of the claim inasmuch as they have now to contribute a lesser sum but the Plaintiff was not fighting their cause but his own when he incurred the costs. In the terms of settlement this is made quite clear as it was stipulated that the settlement would in no way affect Galstaun's right to proceed against the Defendants. These costs were in no sense a joint debt of the Plaintiff and Defendants. There was no contract between the Plaintiff and the Defendants regarding these costs and I can find no equity between them which would make the Defendants liable to contribute towards their payment. This part of the Plaintiff's claim must therefore be dismissed. 31. The following issues were raised by the parties. 1. Is the Plaintiff entitled to claim a joint decree as against the Defendants? If not, is this suit maintainable as framed? 2. Was the payment of Rs. 1,95,149-7-6 made in respect of any common liability? 8. Was the payment by the Plaintiff of Rs. 1,95,149-7-6 in excess of his share of any common liability? 4. Is the Plaintiff precluded and estopped from claiming any contribution from the Defendants by reason of the various proceedings taken by the parties and or by his conduct since the 11th November, 1907? 5. Is the common liability of the parties Rs. 6,36,149-7-6? If not, what is the common liability, if any? 6. Was the common liability extinguished and new rights and liabilities created by the Defendants and the Plaintiff independently of each other? 7. Was the payment of Rs. 4,41,000 made by the Defendants in respect of any common liability? 8. Is the Plaintiff entitled to any contribution in respect of the costs incurred by him in the various suits and proceedings between him and Galstaun ? 9. Did the Plaintiff incur costs to the extent of Rs. 12,705 ? Were these costs necessary? Is the 4|5th share of such costs recoverable from the Defendants? 10. 8. Is the Plaintiff entitled to any contribution in respect of the costs incurred by him in the various suits and proceedings between him and Galstaun ? 9. Did the Plaintiff incur costs to the extent of Rs. 12,705 ? Were these costs necessary? Is the 4|5th share of such costs recoverable from the Defendants? 10. Are the Defendants entitled to set off against the Plaintiff's claim if any, and if so, what sums ? I answer the issues as follows: -- Issue No. 1: -- In view of the fact that the plaint has been amended and as the Plaintiff now claims a 1|4 share against each Defendant, this issue no longer arises. Issue No. 2: -- It was. Issue No. S: -- It was. Issue No. 4: -- He is not. Issue No. 5: -- This was the common liability after the compromises mentioned above were entered into. Issue No. 6: -- This issue is answered in the negative. Issue No. 7: -- It was. Issues Nos. 8, 9 and 10: -- The Plaintiff is not entitled to get any contribution for the costs payable by him to his attorney. He is entitled to get contribution for the costs paid to Galstaun. The Defendants likewise are entitled to get contribution for the costs paid by them to Galstaun. These costs are included in the sums mentioned in the plaint as having been paid by the Defendants and the Plaintiff respectively so they have been set off. 31. In view of the findings arrived at above the Plaintiff will get a decree for the sum of Rs. 67,919-9 together with interest at 6 per cent, per annum pending suit and costs and interest on judgment at 6 per cent, per annum. Each Defendant shall be liable to pay only 1|4 of the decretal amount and costs together with interest on his share of the liability at 6 per cent, per annum till realisation. Certified for two Counsel. Certificate under sec. 205 of the Government of India Act is with-held.