JUDGMENT Panckridge, J. - This is an appeal against the judgment and decree of Sen, J., who on November 11th, 1940, ordered that each of the four Appellants should pay the Respondent one-fourth part or share of the sum of Rs. 71,813-9-0 with interest at six percent. until realisation, and one-fourth part or share of the Respondent's costs in the suit. The history of the litigation which has given rise to this suit is prolonged and complicated. 2. It begins with an indenture of mortgage of June 28th, 1903. The circumstances leading to the execution of that indenture were these. The four Appellants and the Respondent are the nephews of a very wealthy man, Gopal Lal Seal, who died on May 15th, 1902. They were interested to establish certain rights under an alleged Will of Gopal, and they were in need of funds for the expenses of litigation. 3. In the mortgage, under which they are the mortgagors, and J.C. Galstaun is the mortgagee, it is recited that the mortgagors have borrowed from the mortgagee sums of money aggregating the sum of Rs. 3,00,000 which have been advanced to them by the mortgagee out of his monies and out of monies contributed by one Haridhone Dutt. This sum the mortgagors covenant to repay on December 20th, 1903, and, in the meantime and until full satisfaction, to pay interest at 12 per cent. per annum, and also all costs, charges and expenses (between attorney and client), which may be incurred by the mortgagee in realizing and recovering and obtaining payment of the principal, interest, and other monies thereby secured. The security is the mortgagee's rights in the estate of Gopal, either under his Will, or as his reversionary heirs according to Hindu law. 4. On November 11th, 1907, a vesting order was made against the Respondent on his own petition under the Indian Insolvency Act, 1848, (11 & 12 Vic. c. 21), and in his schedule of affairs he showed his indebtedness to Galstaun as Rs. 60,000, and marked the debt as "disputed" 5. On January 11th, 1908, the Respondent obtained his personal discharge. 6. On November 15th, 1909, Galstaun instituted Suit No. 1028 of 1909 against the Appellants and the Respondent. 7. As originally framed, the suit was on the covenant to repay, and Galstaun asked for leave under Or. 60,000, and marked the debt as "disputed" 5. On January 11th, 1908, the Respondent obtained his personal discharge. 6. On November 15th, 1909, Galstaun instituted Suit No. 1028 of 1909 against the Appellants and the Respondent. 7. As originally framed, the suit was on the covenant to repay, and Galstaun asked for leave under Or. 2, r. 2 of the CPC to reserve his right against the mortgaged properties, which had not at the date of suit fallen into possession. 8. It would serve no useful purpose to set out in detail the various steps taken in Galstaun's suit. It will be enough to say that while it was pending, Galstaun withdrew his suit as against the Official Assignee, who was then a party as representing the Respondent's estate without prejudice to his right to prove in the insolvency. 9. On February 11th, 1920, Galstaun obtained a decree against the Appellants, for Rs. 5,23,500 with interest at six per cent. 10. An appeal was lodged against this decree, but, before it was heard, the parties on December 17th, 1920, arrived at a settlement, whereby the decree was reduced as against the Appellants to Rs. 2,75,000 with interest at six per cent., with liberty to Galstaun to proceed for the balance of his claim against the Respondent without recourse to the Appellants. 11. This decree has now been liquidated by a payment of Rs. 1,25,000 in May, 1925, a further payment of Rs. 1,26,910 in July 1926, and a final payment in June 1937, which brings the total payments under the decree up to Rs. 4,41,000. The course of the Insolvency proceedings has been as follows. 12. On March 1st, 1921, Greaves, J., admitted Galstaun's claim for Rs. 2,00,000 with interest at twelve per cent. up to the date of adjudication. 13. The Respondent appealed, and the appeal was disposed of on February 13th, 1928. It is unnecessary to set out the order made on appeal, but from it the Respondent appealed to His Majesty in Council. This appeal was however settled on July 8th, 1929, and by the terms of settlement it was provided that Galstaun should accept Rs. 1,35,000 "in full settlement of all his claim and costs," this amount to be irrespective of the amount to be recovered by Galstaun from the Appellants. This appeal was however settled on July 8th, 1929, and by the terms of settlement it was provided that Galstaun should accept Rs. 1,35,000 "in full settlement of all his claim and costs," this amount to be irrespective of the amount to be recovered by Galstaun from the Appellants. It is further provided that the Respondent, and|or the Official Assignee, is to have six months' time to pay, and that, in default of payment, interest at six per cent. will run on the Rs. 1,35,000 from the expiry of the six months until payment. 14. The Respondent's liability under the terms was not discharged until June 23rd, 1937, when he paid to the Imperial Bank, as Galstaun's assignees, Rs. 1,95,149-7-2 being principal and interest calculated up to that date. 15. On November 27th 1939, he filed the present suit. His claim is that he is entitled to recover Rs. 67,919-9-0 from the Appellants as contribution. 16. He states that the total sum realized by Galstaun and his assignees amounts to Rs. 6,36,149-7-2. A fifth share of this is Rs. 1,29,229-14-0, and his claim represents the difference between that sum and the Rs. 1,95,149-7-2 which he has actually paid. He also makes further claims, including a sum which represents the costs he has incurred in resisting Galstaun's claim. 17. Sen, J., has made a decree in the Respondent's favour, and allowed his interest pending suit, and costs and interest on decree. He has disallowed his claim for contribution in respect of his own costs, and it has not been suggested by the Respondent's Counsel that the learned Judge erred in so doing. The law as to contribution in India, though undoubtedly derived from the equitable principles recognised in England, has been codified in secs. 43 and 44 of the Indian Contract Act. These sections are as follows: 43.--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. 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 such default in equal shares. Explanation. Nothing in this section shall prevent a surety from recovering from his principal payments made by the surety on behalf of the principal, or entitled the principal to recover anything from the surety on account of payments made by the principal." 44.--Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors; neither does it free the joint promisor so released! from responsibility to the other joint promisor or joint promisors. 18. Mr. Sarat Bose for the Appellants has emphasized the words in the second paragraph of sec. 43 "to contribute equally with himself to the performance of the promise," and he argues that the promise must refer to the joint promise mentioned in the preceding section. He says that in this case his clients, the Appellants, have paid under the promise contained in the consent decree of December 17th, 1920, to pay Rs. 2,75,000, with interest at six per cent., and that the Respondent has paid under the promise contained in the consent order of July 8th, 1929 to pay Rs. 1,35,000 in full discharge of claim and costs, with interest at six per cent. in default of payment within a period of six months. 19. Neither party has paid in performance of the joint promise contained in the mortgage deed to pay Rs. 3,00,000 with interest at twelve per cent. until realization. 20. He suggested, and it is very likely correct, that the settlements had different bases, for since the proceedings against the Respondent were in Insolvency, the true nature of the transaction could be investigated, a state of things which brought to light the fact that Galstaun had only advanced a sum of Rs. 1,00,000. 21. He has drawn our attention to Halsbury's Laws of England (2nd Ed.), Vol. 1,00,000. 21. He has drawn our attention to Halsbury's Laws of England (2nd Ed.), Vol. 13, p. 36, where it is stated that the principle of contribution does not apply unless all the parties are liable to a common demand, and that such liability is therefore a condition of contribution. 22. Among reported cases he has cited Davies v. Humphreys 6 M. & W. 153 (1840), where Parke B refers to the words of Lord Eldon in Craythorne v. Swinburne 14 Ves. 164 (1807) that unless one surety should pay more than his moiety, he would not pay enough to bring an assumpsit against the other, and observes-- and this appears to be very reasonable : for, if a surety pays a part of the debt only, and less than his moiety, he cannot be entitled to call on his co-surety, who might subsequently pay an equal or greater portion of the debt; in the former of which cases, such co-surety would have no contribution to pay, and in the latter case he would have one to receive. 23. It is conceded that sec. 63 of the Contract Act is applicable to joint promises, but it is argued that the remission must be in favour of all the joint promisors, and that accordingly, when Galstaun and the Appellants agreed to the consent decree, while keeping alive Galstaun's right to prove for the entire debt in the Respondent's insolvency, the Respondent lost his right of contribution. 24. To us it appears that the answer to this is furnished by sec. 44, which specifically provides that a release of one joint promisor does not discharge the other joint promisor or promisors, nor does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors. There is certainly no ground for holding that the section applies only to the ease of a complete discharge, and not to one of a partial discharge. 25. Although the remissions granted by the promisee may, as between him and the various joint promisors, be more favourable to some than to others, all the remissions in the long run benefit all the promisors. 26. 25. Although the remissions granted by the promisee may, as between him and the various joint promisors, be more favourable to some than to others, all the remissions in the long run benefit all the promisors. 26. We are therefore of opinion that the learned Judge was right in holding that the arrangements made by Galstaun with the Appellants on the one hand and the Respondent on the other, did not destroy the Respondent's right to contribution. 27. A small point has been taken as regards the form of the two settlements. In the consent decree of December 17th, 1920, the decretal amount is expressed to be in full settlement of all Galstaun's claims against the Appellants. In the terms of settlement with the Respondent of July 8th, 1929, Galstaun agrees to accept Rs. 1,35,000 in full settlement of all his claims "and costs" It is said that the Appellants are not liable to contribute to Galstaun's costs, and it is impossible to say how much of the agreed sum should be allocated as representing costs. 28. Again we hold that the learned Judge has rightly decided that this point fails, because, under the terms of the original mortgage, the mortgagors jointly promised to pay the mortgagee all the costs which might be incurred in realization of his dues, or, in other words, that payment of Galstaun's costs was part of the joint promise. 23. Before us a point has been taken which was not argued before Sen, J, 24. It is said that any claim, which the Appellants might in other circumstances have had against the Respondent for contribution, was discharged by reason of the insolvency of the Respondent, and by the terms of his final order of discharge made on June 25th, 1937. Conversely, since mutuality is the test of liability to contribute, the Respondent cannot now claim contribution against the Appellants. 25. This argument appears to us to be untenable, in view of the terms of the orders made by the Insolvency Court. The order of November 11th, 1907, purported to vest all the real and personal estate and effects of the Respondent (subject to the usual exceptions) in the Official Assignee for the time being of the Court for the relief of Insolvent Debtors. 26. The order of November 11th, 1907, purported to vest all the real and personal estate and effects of the Respondent (subject to the usual exceptions) in the Official Assignee for the time being of the Court for the relief of Insolvent Debtors. 26. The order specifically covers all the future estate, right, title, interest and trust of the insolvent and all debts growing due to him. 27. By the order of June 25th, 1937, it is recited that all the claims of the creditors have been paid in full except those of Galstaun and the Imperial Bank. 28. The operative part of the order provides that the vesting order made on November 11th, 1907, be set aside and the petition for insolvency filed by the debtor dismissed. 29. In view of these provisions it appears to us that the insolvency thus annulled may be left out of consideration, and the Respondent's right to contribution must be treated as unaffected. 30. Finally there is another point, which was also not raised before the Court of first instance. 31. It is pointed out that, whereas under the terms of settlement of 1929 the Respondent could discharge his liability by a payment of Rs. 1,35,000 he failed to pay in time, and in consequence the default clause came into operation. The result of this was that a sum of Rs. 1,95,000 was necessary to satisfy the claim in 1937. 32. It is suggested that the Appellants should not be prejudiced by the Respondent's delay, which has undoubtedly increased his claim for contribution. 33. The Appellants submit that the equitable way to adjust this is to allow them interest at six per cent. on the two part payments made by them against the consent decree in May, 1926, and July, 1926. This would reduce the Respondent's claim by half. 34. The Appellants rely on the Privy Council decisions in Jotindra Mohun Lahiri v. Guru Prosunno Lahiri L.R. 31 I.A. 94 : s.c. 8 C.W.N. 625 (1904) and Guru Prosunno v. Jotindra Mohun L.R. 35 I.A. 32: s.c. ILR 35 Cal. 303 (1907). 35. In our opinion those decisions are not applicable to the present case. 34. The Appellants rely on the Privy Council decisions in Jotindra Mohun Lahiri v. Guru Prosunno Lahiri L.R. 31 I.A. 94 : s.c. 8 C.W.N. 625 (1904) and Guru Prosunno v. Jotindra Mohun L.R. 35 I.A. 32: s.c. ILR 35 Cal. 303 (1907). 35. In our opinion those decisions are not applicable to the present case. There was no joint promise, the liability being under a decree for mesne profits, and the reason for allowing interest seems to have been that those of the judgment-debtors who made part payments reduced the liability for interest to the advantage of all. 36. In the case with which we are dealing the Respondent derived no benefit from the part payments made by the Appellants, who, as has been pointed out, could at any time have paid Galstaun up on the Respondent's account and then sued him for contribution. 37. We have come to the conclusion that all the points taken by the Appellants fail, and their appeal must accordingly be dismissed with costs. 38. We certify that this appeal is fit for the employment of two Counsel. Derbyshire, C.J. I agree.