- (1.) THIS is an appeal by the plaintiff Shankerlal in a suit for contribution.
(2.) THE facts leading up to this appeal may be shortly stated as follows. There was a house belonging to Parakh Motichand Govinddas situate in Udaipur City. The ancestors of the plaintiff Shankerlal and defendants respondents Motilal and pannalal had agreed to purchase this house for Rs. 19,999/-from the Parakhs on maha Sudi 14 Sm. 1945. They wanted to back out of this agreement and this led to a suit by the Parakhs against the ancestors of the present parties with the result that a decree was passed in favour of the Parakhs against the ancestors of the plaintiff and the defendants respondents for a sum of Rs. 19,999/ -. This decree is dated the 12-7-1892. According to the practice which was in force in the former state of Mewar, this decree was affirmed by the Mehdraj Sabha on the 8-4-1896, and finally confirmed by His Highness the Maharana of Udaipur on the 31-8-1896. The decree-holders took out execution of this decree, but the precise details before 1937 are not known and they are not material for the purposes of the present appeal. What is material is that the decree-holders sold their decree for rs. 15000/- to one Roshanlal Chatur and his relations on the 10-1-1937, and consequently the assignees were brought on the record in place of the original decree-holders, namely, the Parakhs. Then the execution court sent the case up to the Mehdraj Sabha for sanction to auction the house in question as the judgment-debtors were not paid the decretal amount. What happened in the Mehdraj Sabha then has led to the present litigation. The assignees of the decree as well as the plaintiff's father Tansukhlal and the present respondents were represented before the Mehdraj Sabha on the 28-11-1937. It was stated by Motilal's Vakil Shri Arjunlal mehta and by Pannalal before the Mehdraj Sabha that they did not want to have the house any more and that if Tansukhlal (father of the present plaintiff shankerlal) alone wanted to have the house he could take it. It was further stated that they also did not claim any compensation from the decree-holders. I may pause to point out here that it appears that as the possession of the house still remained with the decree-holders and their assignees throughout all these years, a contention had been raised on behalf of the judgment-debtors that the house had suffered considerable deterioration at the hands of the former and that they were entitled to receive compensation from them (i. e. , the decree-holders of their assignees ). It was finally prayed that if the decree-holders were prepared not to levy execution against them, then they (the two judgment-debtors) would be prepared not to ask for possession of the house. Mano-harlal, the Aam-mukhtar of the assignees, also gave his statement before the Mehdraj Sabha the effect of which is that the assignees had no objection if liability for the execution of the entire decree were to rest on Tansukhlal alone and the other two judgment-debtors were to be let off. It is remarkable that although Tansukhlal was present before" the Mehdraj Sabha, his statement was not recorded which has led to a good deal of trouble. The position of the plaintiff is that Tansukhlal had not undertaken the entire responsibility for the execution of the decree expressly or impliedly whereas the contention of the defendants is that although Tansukhlal had not expressly undertaken such a liability, he had impliedly assumed full responsibility for the satisfaction of the decree. Be that as it may, the Mehdraj sakha passed an order on the same day Ex. p-4 in which reference is made to the statements referred to above on behalf of the decree-holder assignee and the judgment-debtors Pannalal and Motilal, and it is also said that the decree-holder was prepared to give possession of the house; and, therefore, the following further directions were given: "in this state of affairs if Tansukhlal do pay the decretal amount within six months, possession of the house should be made over to him in execution. But if this is not done within the time fixed, then the house be put to auction according to law as suggested by the court below. " The order further went on to say that Tansukhlal judgment-debtor is hereby given the power to mortgage or sell the house in ordar to pay off the decretal amount and that possession be handed over to him after the money is paid to the decree-holder. Lastly it was ordered that Tansukhlal's objection was that he had been put to loss on account of the possession of the house not having been delivered to him and that such loss be paid to him but an inquiry into this will lead to lot of complications: and, therefore, he is permitted to file a suit with regard tq that if he has really suffered any damage. It appears that Tansukhlal was not satisfied with this order and he reserved his right to file his objections against it. He did file an objection soon after on the 21-12-1937, in which he complained that the possession of the house be given to him immediately and that his claim for damages should have also been gone into, and that there was a prosepective purchaser who was prepared to purchase the house but only if it was clarified by the court that the sale would not be subject to any right of pre-emption by anybody and that the purchaser could purchase the house be he of any caste or community and that the condition that Tansukhlal pay the money within six months was also unjust because he had a claim for compensation and that had not been gone into or decreed and lastly that he had not been granted full opportunity of hearing and that if the same had been granted to him, such an order would not have been passed. It is not known what orders were passed by the Mehdraj Sabha on this application. This much is certain, however, that there is nothing to show that Tansukhlal's Prayers had been accented. The matter then went to the district court which was the executing court and there Tansukhlal made another application on the 23-1-1938. Briefly put, the contention raised by Tansukhlal in this application was that he was liable to pay only 1/3rd of the decretal amount and was entitled in lieu thereof to get 1/3rd of the house and that he was prepared to execute the decree in that manner but ho also repeated his claim for compensation and prayed that the matter be decided in these very proceedings. This application was rejected by the District Judge and the matter went finally In appeal to the Ijlas-i-Khas of the Mehdraj Sabha. The appeal was dismissed by saying that there was one and indivisible decree in which the shares of the judgment-debtors had not been specified, and that the direction already given to tansukhlal that he could file a separate suit for damages, if any, was Quite correct and did not call for any interference at that stage. The order further provided that it was open to any of the judgment-debtors to give up their claim as regards the house and further that if the decretal amount were to be realised from Tansukhlal alone, then it was for him to claim contribution from the other two judgment-debtors or not. This order was passed on the 31-8-1938. Tansukhlal did not pay the decretal amount and so the house was put to auction for a sum of Rs. 13100/- and this was in due course paid to Roshankl Chatur. It also appears that some time before 1945 (the exact date cannot be ascertained) a sum of Rs. 513/- was also made over to the assignee decree-holders. This was the 1/3rd portion of the total amount of a decree for Rs. 1639/- which the judgment-debtors, that is, the parties to the present suit held against the jagirdar of Keria. The decree-holders wanted to seize the entire amount and this was allowed by the execution court but on appeal it was held that as the decree-holders had released the two judgment-debtors, namely, the present defendants respondents, they could proceed only against the remaining 173rd share belonging to Tansukhlal, and, consequently, this sum representing his 1/3rd share only was paid to the decree-holders. As regards the balance of the decretal amount the decree-holders levied execution against Tansukhlal's son the present plaintiff (Tansukhlal having died in the meantime) and recovered the sum of Rs 6387/- from him on the 1912-1945. The plaintiff's contention is that the decree of the Parakhs against the parties was joint and several and that as he had alone satisfied that to the extent of Rs. 6899/- the defendants respondents were liable to contribute 2/3rds of the amount paid by him to the assignees of the original decree-holders, which they had not paid, and, therefore, he was entitled to receive from them 2/3rds of Rs. 6899/- i. e. , a sum pf Rs. 459975/4. He has consequently filed the present suit for the aforesaid amount.
(3.) THE defendants admitted that the Parakhs held a decree against the common ancestors of the parties but they resisted the suit by saying that the plaintiff's father Tansukhlal had undertaken to take the house by himself and also to pay off the entire decree, and, therefore, the defendants stood absolved from all liability under the decree and the plaintiff had no valid claim for contribution against them. The defendants also contended that the plaintiff need not have paid the full amount to the assignees of the original decree-holders inasmuch as the latter had absolved the defendants from all responsibility under the decree. The only other point of substance which need be mentioned at this date is the further contention of the defendants that the claim for contribution made by the plaintiff as regards the sum of Rs. 513/- out of the decree held against the jagir of Keria is barred by limitation.;