KANGAL CHANDRA PAL Vs. GOPINATH PAL

JUDGEMENT

(1.) This appeal is preferred by defendants Nos. 6 and 7 in a suit for contribution. The plaintiffs in the suit held a two-anna odd share in a dar-patni tenure. The patnidar sued for arrears of rent due in respest of the years 1313 to 1316. The defendants in that suit were the defendants Nos. 5, 6 and 7 in the present suit. The patnidar obtained a decree and in execution the dar-patni was gold in September 1911 and purchased by the present defendant No 4. On the 25th October 1911 the plaintiffs deposed in Court the amount of the decree, namely, Rs. 4,180, together with the statutory compensation of five per sent, on the purchase money due to the auction-purchaser, Rs. 285, and in consequence the sale was Bet aside. The plaintiffs allege that in this connection they incurred costs amounting to Rs. 2115 10. The suit was brought for contribution from the co sharers in the dar-patni in respect of the three sums I have stated.

(2.) In the course of the suit, defendants Nos. 1 and 4 same to terms with the plaintiffs and a petition of compromise was filed. Defendants Nos. 8 and 11 died and their heirs were not brought on the record. A decree for contribution was made against defendants Nos. 5, 6, 7, 9 and 10. Defend. ants Nos. 5, 9 and 10 have not appealed.

(3.) The first point taken on behalf of the appellants is, that the appellants and the defendant No 5 being only some of the so sharers in the dar-patni, the decree obtained against them was only a money-decree, that the dar-patni could not be sold in execution but only the right, title and interest of the appellants and the defendant No. 5, and that the payment made by the plaintiffs for the purpose of having the sale set aside was simply officious. The answer is that, rightly or wrongly, the dar-patni was in fast sold in execution. The appellants and the defendant No. 5 are the present representatives of the original dar-patnidars. Other persons including the plaintiffs and other defendants on the record hold shares in the dar-patni acquired from the grantees of the lease or their successors. The patnidar has refused to recognise them on the ground that the leas a forbade alienation. He brought a suit for ejectment on that ground which, we are told, was unsuccessful but neither the judgment in the suit nor the lease is before us. In the circumstances, however, it is quite unnecessary for us to form or to express any opinion on this question. The case of Mohendra Ghoshal V. Bhuban Mardana : Suchind V. Balram (1) 6 Ind.Cas, 810 : 33 C. L. U C. W, N. 945 : 12, C. h, J, 566. where the fasts were similar, shows that a suit for contribution will lie in such circumstances. Separate judgments ware delivered in that case, but though the learned Judges gave different reasons they same to the same conclusion. The Chief Justine (Sir Lawrence Jenkins) upheld the decision of the Court below under Section 70 of the Contract Act. Mr. Justice Does was of opinion that the case same more properly within the terms of Section 69. With great respect we prefer the view expressed by the Chief Justice, which also accords with the view expressed in Jog Narain v. Badri Das 13 Ind. Cas. 144 : 16 C. L. J. 156. The case of Batuk Nath Singh v. Bepin Bihari 17 Ind. Cas, 90, 16 C. W. N. 975 : 17 C. L. J, 17 C.L.J.170 cannot regarded as a decision to the contrary, be-cause the case turned on other questions and the applicability of Section 69 was assumed without being considered or dis- cussed. In the case before us, the appellants were, no doubt bound by law to satisfy the decree obtained against them bat it can hardly be said that after the sale of the dar-patni they were bound by law to make the payments necessary for the purpose of having the sale set aside. There is that difficulty in the way of applying Section 69. No difficulty attends the application of Section 70. Nobody suggests that the payments made by the plaintiffs were not made lawfully, or that the plaintiffs intended to make them gratuitously. Their interest in the tenure, which is admitted by the appellants, is an answer to the argument that they acted officiously. In our opinion this ground of appeal fails.