A.K. Kirty, J. - (1.) IN this appeal by the plaintiff the point for consideration is whether the suit was barred by limitation. The two courts below have dismissed the suit holding that it had been filed beyond the period prescribed under Art 99 of the Indian Limitation Act, 1908.
(2.) THE material facts about which there is no controversy now are that there was a joint decree for money against the appellant and respondent No. 1 in execution of which some property belonging to the appellant was sold; that on 28-1-1954 the appellant filed an application under order XXI, Rule 89, C. P. C. and deposited Rs. 1751.00; that the sale was set aside by the executing court by an order dated 6-2- 1954; that the appellant would be entitled to a decree for Rupees 1439.00 by way of contribution from respondent No. 1 if the suit is not barred by limitation and the decision of the courts below dismissing the suit as barred by limitation is wrong. The courts below have held that the starting point of limitation under Article 99 of the Limitation Act would be the date of deposit made by the appellant in court on 28-1-54 and that the suit which was filed on 4-2-57 was, therefore, barred by limitation. The question, therefore, which falls for decision is what would be the date from which the period of limitation prescribed under article 99 of the Limitation Act is to be computed. I may mention here that Mr. K.C. Saxena learned counsel for the appellant, also advanced an argument that the provisions of Article 61 and not those of Article 99 of the Limitation Act would govern the suit During the course of arguments, however, he had to concede that on the facts of the case his submissions about applicability of Article 61 would be difficult to substantiate and he, therefore, concentrated on his arguments based on the language of Article 99 of the Limitation Act and submitted that upon a proper construction of this Article the starting point of limitation would not be the date of deposit but the date when the application under Order XXI. Rule 89 C. P. C, was allowed by the executing court.
(3.) ARTICLE 99 of the Limitation Act reads as follows: Description of the suit Period of Limitation. Time from which period begins to run. For contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, or by a sharer in a joint estate who has paid the whole or more than his share of the amount of revenue due from himself and his co-sharers. Three years. The date of the payment in excess of the plaintiff's own share. The cause of action for a suit for contribution accrues to a person "who has paid the whole or more than his share of the amount due under a joint decree". This right to contribution arises, because of a joint decree, the liability for the discharge of which lies on all the judgment-debtors, has been satisfied by one Judgment-debtor alone and he has paid no only his proportionate share of the decretal sum, but also the shares which his co-judgment-debtors were liable to pay and ought to have paid. Therefore, to my mind it is upon the full or even partial satisfaction of the joint decree on payment by one of the judgment-debtors that the law gives a right to the judgment-debtor concerned to recover the excess amount paid by him by a suit for contribution if his co-judgment-debtors do not voluntarily reimburse him. In considering the question of the applicability of Article 99 of the Limitation Act, therefore, it will be essential to consider as to when the joint decree itself has been so satisfied on payment by one judgment-debtor who claims contribution,;