- (1.) THIS is a plaintiff' s second appeal in a suit for contribution for the amount paid by the plaintiff in execution of a decree on the foot of a mortgage that had been passed against him and the defendants, in order to have the sale of the mortgaged property set aside under O. XXI, R. 89, C. P. C. The plaintiff had claimed in all the sum of Rs. 3200/-, Rs. 1600/- each against the two defendants, although according to the figures worked out in the plaint the amount of claim worked out at Rs. 4301.50P. The trial court decreed the suit for recovery of Rs. 1173/- with proportionate costs against defendant No. 2 and for recovery of Rupees 935.09P. against defendant No. 1, the costs being made easy in so far as the decree against defendant No. 1 was concerned. The defendant No. 2 was required to pay the amount within six months from the date of the decree, failing which the plaintiff was held entitled to realise the same by sale of 1/3rd share in House No. 7, Minto Park Kydganj. Allahabad. The defendant No. 2 was also made liable to pay interest at 6 per cent per annum from the date of decree till the date of actual payment. There were no such directions in respect of the amount decreed against the defendant No. 1.
(2.) THE plaintiff appealed to the District Court THE appeal was heard by the Court of the First Additional District Judge, Allahabad. THE appeal against the first defendant was dismissed with costs while that against the second defendant was allowed in part and the decree of the trial court against him was modified to the extent that the plaintiff was allowed interest from the date of the suit. Mr. Markendy Katju appearing for the appellant has urged before me that the dismissal of the claim for recovery of the amount and poundage against the defendants was unjustified. He has invited my attention to the decision of the Madras High Court in Damodaraswami Naicken v. Govindarajulu (AIR 1943 Mad 429) (FB). That is a Full Bench decision and there is reference to a Division Bench of this Court. Bhagwan Singh v. Mohd. Mazhar Ali Khan (AIR 1914 All 330) in the referring order of that case and it is in the referring order that it has been suggested that the fee chargeable for poundage from the mortgagor judgment-debtor forms no part of the amount payable to the mortgagee decree-holder but is a payment which the judgment-debtor whose property has been sold has to make in order to regain his property because he was late with his money and that it cannot, therefore, be regarded as an expense properly incurred in redeeming the mortgage within S. 95. In Bhagwan Singh' s case a Division Bench of this Court held that although poundage was not a sum which could come under S. 82 of the T. P. Act, yet it could only be awarded against the defendants upon equitable ground of salvage. The Division Bench of this Court does not say that the amount of poundage incurred by a person in saving the property by having the sale set aside under O. 21, R. 89, C. P. C. could not be recovered as a contribution from his co- judgment-debtor. The defendants could have themselves saved the property by paying the decree- holder before the property was auctioned and before the plaintiff salvaged it by having the sale set aside but after the sale it was possible only on his paying the amount of poundage in addition to the decretal amount. The amount was paid by the plaintiff to protect the property and the payment was made in the interest of the defendants. I do not, therefore, see how the plaintiff' s claim for contribution of the amount of poundage paid by him could have been resisted by the defendants. The next point raised by the learned counsel for the appellant was with regard to the amounts of expenses incurred by the plaintiff out of court in the execution proceedings It has been stated by the lower appellate Court that although the plaintiff claimed Rs. 400/- but in his statement on oath he stated that he had spent Rs. 250/- on that account. It is not known how much of these expenses were personal expenses of the plaintiff although incurred in the course of conducting the litigation. At any rate it is generally only the taxable costs which are paid and recovered although it is well known that the parties spend quite a lot more than the taxable costs in litigation. This claim was under the circumstances not seriously pressed by Mr. Katju and the judgment of the court below in respect of this item is affirmed.
(3.) THE next claim of the plaintiff relates to the amount of interest and costs against the first defendant. THE lower appellate court has observed that the first defendant was not at fault for in reply to the plaintiff' s notice he said that he was willing to pay the amount but it was the plaintiff who did not indicate the time and place where the amount could be tendered to him. I do not see any error in this part of the judgment of the lower appellate court, and hold that interest and costs were rightly disallowed against the defendant No. 1. No other point was pressed before me.;