JUDGMENT Henderson, J. - This appeal is by the plaintiffs. They and the defendants were co-defendants in a suit for partition. The plaintiffs contested the suit. The defendants allowed a decree to be passed ex parte. A decree for costs was made jointly against the plaintiffs and defendants. Execution was levied against the plaintiffs alone. The present suit has been instituted in order to get contribution from them. The claim was contested only by the present respondent-defendants 1 to 5. The question whether, when a joint decree for costs is passed against more persons than one, and execution has been levied against one or some only, those who have paid are entitled to claim contribution from the rest, has led to some divergence of judicial opinion. The learned Munsif decreed the suit. But the Additional District Judge has taken the opposite view. As there was doubt as to the competency of this appeal, there is an alternative application in revision. Even in this matter I find that there is no uniformity of procedure. Some cases have been dealt with in second appeal and others in revision. There is, however, no doubt that this appeal is incompetent unless the case comes within sch. 2, Art. 41, Provincial Small Cause Courts Act, which is in these terms: A suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a co-sharer...... It is quite clear that the peculiar kind of contribution claimed in this case is not within the terms of that article and the present appeal is incompetent. The alternative application is based on the ground that the appeal in the District Court was also incompetent. The learned Judge who tried the case was vested with powers of a Small Cause Court up to Rs. 300. Hence, under S. 32 of the Act the decision was not open to appeal. It is not, however, enough to show that the lower appellate Court had no jurisdiction to entertain the appeal; if it appears that the defendants, had they not appealed, would have obtained relief under S. 25; this Court will not in exercise of the powers under S. 115, Civil P. C., restore a wrong decree. It is not, however, enough to show that the lower appellate Court had no jurisdiction to entertain the appeal; if it appears that the defendants, had they not appealed, would have obtained relief under S. 25; this Court will not in exercise of the powers under S. 115, Civil P. C., restore a wrong decree. I may say at once that I should have had no difficulty whatever in upholding the decision of the learned Additional District Judge, if it had not been for the decisions in two cases in this Court upon which Mr. Ghose relies. It is, therefore, necessary to consider first the decision in 61 Cal. 864 Ananda Kishore v. Panchu Kapali ('34) 21 A. I. R. 1934 Cal. 709 : 61 Cal. 864 : 152 I.C. 510, which deals with this question of contribution in connection with costs. In that case the learned Judges proceeded upon S. 69 and S. 70, Contract Act. They finally reached the conclusion, that even if the former section did not apply, the latter did and the decision actually gave relief under the latter. With the very greatest respect I find it very difficult to follow the reasoning. The two sections deal with entirely different conditions and they cannot both apply to the same set of facts. If one applies, the other cannot. Further-more they deal not with contribution but with reimbursement. If a plaintiff can make out a case under either of these sections he is entitled to recover the whole of the money spent and not merely a part of it. In my judgment neither of these sections can have any application when a man pays a debt for which he himself is personally liable. 2. That decision being by a Division Bench is binding on me and I should certainly follow it. Mr. Das Gupta attempted to distinguish it and in my judgment succeeded in so doing. The benefit upon which the plaintiff succeeded is the benefit which accrued to the defendant from the defence made by the plaintiff. 2. That decision being by a Division Bench is binding on me and I should certainly follow it. Mr. Das Gupta attempted to distinguish it and in my judgment succeeded in so doing. The benefit upon which the plaintiff succeeded is the benefit which accrued to the defendant from the defence made by the plaintiff. I must confess that I find it hard to see why the winner of a successful battle should be mulcted in costs, or why the right to contribution should attach to the sum decreed as costs rather than to the money actually spent in the conduct of the defence which was mutually beneficial both to the plaintiff and the defendant. That, however, is the benefit laid down in the decision and it has this advantage that it does lay down a standard by which the proportionate liability of the parties can be calculated, that is to say, their proportionate share in the subject-matter of the litigation. 3. Now the plaintiff in the partition suit claimed 13/20 as his share and admitted the share of the present defendant to be 3/20. The defendants did not contest the suit or deny the plaintiff's share. The present plaintiffs denied that the plaintiff had any share at all and made an alternative defence that, if he had a share, it was limited to four annas. By the decree the plaintiff was awarded 5/8th and the present defendant 1/8th. The result is that in the decree they have been given a share smaller than that admitted by the plaintiffs. So far from their having gained anything by this contest, they have actually lost. When this theory of benefit has gone, it would clearly be absurd to make the defendants liable for costs decreed against the plaintiff, who put forward a false defence to which the defendants were not parties and for which they had no responsibility. Mr. Ghose argued that the real benefit should be sought in the fact that the defendants were interested in the payment made by the plaintiffs. The plaintiffs actually paid money for which the defendants were liable. But that is not the ground upon which the decision proceeded. It would also lead to practical difficulties. The defendants were made liable for the whole of the costs and were benefited to that extent. The plaintiffs should, therefore, recover the whole and not merely a portion. The plaintiffs actually paid money for which the defendants were liable. But that is not the ground upon which the decision proceeded. It would also lead to practical difficulties. The defendants were made liable for the whole of the costs and were benefited to that extent. The plaintiffs should, therefore, recover the whole and not merely a portion. There would thus be an unending succession of suits in which one of the joint debtors having been made to pay the whole would proceed to recover it from one of the others and so ad in finitum. 4. The second decision was by my learned brother Mitter in 40 C. W. N. 1089 Kulada Prosad Mitra v. Giribala Debya ('36) 40 C. W. N. 1089. That decision proceeded upon quite different lines, the learned Judge holding that the plaintiff could succeed if there were an equity in his favour. The actual decision turned upon the burden of proof, it being held that it was for the defendant to show that there was no equity in favour of the plaintiff. In my judgment, it is impossible to hold that the mere act of the Court in imposing a liability on all the parties to the contribution suit in invitum creates any equity in favour of them inter se. An equity can only arise from some conduct and it must be established by the party who relies on it. 5. In this case the defendants did absolutely nothing. They never even appeared in Court. I have no doubt that they dislike the order for costs as much as the plaintiffs do. The decision in 48 Bom. 351 Keshav Vithal Oltikar Vs. Hari Ramkrishna Oltikar, AIR 1924 Bom 318 , upon which my learned brother relied, dealt with a case in which all the defendants actually took part. Although I should not be prepared to draw any such inference myself, I suppose that in such a case it might be argued that there was an implied contract to share all expenses and liabilities. But in a case such as the present, where the defendants did nothing, it would be impossible to infer any such implied agreement or to invoke any equity in favour of the plaintiffs. But in a case such as the present, where the defendants did nothing, it would be impossible to infer any such implied agreement or to invoke any equity in favour of the plaintiffs. I have, therefore, reached the conclusion that the decision of the learned Judge was right and I shall not interfere with it in revision, even though it was made without jurisdiction. The appeal is dismissed as incompetent. I make no order as to costs. The application in the alternative is rejected with costs-hearing-fee two gold mohurs.