Futteh Ali vs Gunganath Roy And Ors. on 19 August, 1881

Calcutta High Court
Futteh Ali vs Gunganath Roy And Ors. on 19 August, 1881
Equivalent citations: (1882) ILR 8 Cal 114
Author: Morris
Bench: Morris, Tottenham


Morris, J.

1. This was a suit for contribution brought by the plaintiff (appellant) to recover from the defendants collectively the amount due by them as their aggregate quotas under a decree passed against them and the plaintiff jointly, which decree had been satisfied by the plaintiff alone, on the attachment of his property in execution thereof.

2. The form of the suit was clearly wrong, for the plaintiff had no right to sue for a joint decree against all the defendants, although the decree passed against himself and them had wrongly made them jointly liable for the whole amount of it.

3. The Munsif, however, determined the amounts of the several liabilities of the defendants, and made a decree in favour of the plaintiff accordingly.

4. On appeal to the District Judge, the Munsif’s decree was reversed, and the suit was dismissed. The findings upon which the decision of the Appellate Court was based were, that, under the decree obtained against him and the defendants jointly, he was legitimately bound for his own share only; and that his payment of the liabilities of his co-debtors must be regarded as voluntary or officious. Hence he was held to be not entitled to recover.

5. A preliminary objection was taken on the part of the respondents to the hearing of this second appeal against the lower Appellate Court’s decision, on the ground that the suit was one in the nature of a suit cognizable by a Court of Small Causes, and that the amount involved being less than Rs. 500, a second appeal is forbidden by Section 586 of the Code of Civil Procedure. It was admitted that there are two Full Bench decisions of this Court, that of Ram Bux Chittangeo v. Modhoosoodun Paul Chowdhry 7 W.R. 377 and Sreeputty Roy v. Loharam Roy 7 W.R. 384 which were delivered by Sir B. Peacock, in which it was held, after a very elaborate exposition of the principle which governs suits for contribution not founded upon contract, that a Court of Small Causes has no jurisdiction in such cases; but we were asked to hold with the High Court of Allahabad that the Contract Act has effected such a change in the law as to render the first cited decision obsolete, and to give to the Small Cause Court jurisdiction in contribution-suits. Reference was made to a Full Bench decision of the High Court of Allahabad Nath Prasad v. Baij Nath I.L.R. 3 All. 66. The learned Judges in that case considered the Full Bench decision of this Court Ram Bux Chittangeo v. Modhoosoodun Paul Chowdhry 7 W.R. 377; but came to the conclusion that, owing to the Contract Act subsequently passed, that decision was, for practical purposes, to the point under consideration, “obsolete and irrelevant.” The case before them was provided for by Section 691 or Section 70 of the Contract Act. The majority of the Judges held, that it came within the scope of Section 70; that the suit was in reality one for damages, and as such, one of the nature cognizable by the Small Cause Court.

6. That case, however, was a totally different one from that which is now before us. It was not a suit for contribution, but a suit to recover money paid by the plaintiff under some arrangement for the benefit of the defendants’ estate, the plaintiff himself being, apparently, neither interested in, nor liable for, such payment. The High Court of Allahabad may be quite right in holding that such a suit will lie in the Small Cause Court; but it does not follow that a suit for contribution in respect of money for which the plaintiff and defendants had been by a decree made jointly liable, is within the cognizance of a Small Cause Court, which cannot deal with questions of equity such as must frequently arise in suits of this kind, and with which the regular Courts only are competent to deal. We very much doubt whether a suit for contribution, where both plaintiff and defendants were liable for the money paid by the plaintiff, falls within the scope of either Section 69 or Section 70 of the Contract Act, which seem rather to contemplate persons who not being themselves bound to pay the money or to do the act, do it under circumstances which give them a right to recover from the person who has allowed the payment to be made and has benefited by it. The respondents’ pleader has suggested that the case falls within Section 43, but clearly it does not, for there is no pretence here that the plaintiff and defendants were joint promisors either by express or implied agreement to pay off the amount of the decree against them.

7. No sufficient reason having been shown to us for dissenting from the view of the law laid down by Sir B. Peacock in Ram Bux Chittangeo v. Modhoosoodum Paul Chowdhry 7 W.R. 377 we decide that the present suit was not one of the nature cognizable by a Court of Small Causes, and that the second appeal does lie to this Court.

8. We are further of opinion that the lower Appellate Court’s decree is bad in law, and cannot be sustained.

9. The course which the Judge suggests the plaintiff should have adopted in the former suit when execution was taken out against him, is clearly untenable. The plaintiff could not limit his payment to a sum proportioned to his particular share. Under the decree which was passed, both he and the judgment-debtors were jointly and severally liable. The fact that no such decree ought to have been passed would not relieve the plaintiff from its operation, and his property having been attached in execution of it, he could not have saved it from sale by depositing in Court what he considered to be his own fair share of the debt. He was thus compelled to satisfy the whole decree, and his payment cannot legally be held to have been voluntary or officious, such as to deprive him of a remedy.

10. The Judge below is also quite wrong in law when he goes on to suggest, that if the plaintiff desired to be in a position to proceed against his co-debtors, he should have obtained an assignment of the decree. The respondents’ pleader properly declined to argue in support of this curious proposition which entirely ignores the last proviso to Section 2322 of the Code of Civil Procedure.

11. The Judge, therefore, was wrong in holding that the plaintiff, by his conduct, had disentitled himself to any relief, and he was wrong in his dictum as to the means by which he could have obtained relief. There seems to us in fact to have been no course open to him but that which he adopted, viz., to bring the suit. The Judge was quite right in laying down that not only this suit, but that also which resulted in the decree satisfied by the plaintiff, ought to have been wholly unnecessary, because in the first suit of the series no joint decree should have been passed; but the several liability of each defendant should have been declared, in which case no one of them would have had to pay the share of the others. But we cannot hold the plaintiff responsible for the errors of previous plaintiffs, or of the Court which gave them decrees. All that can now be insisted on is, that the plaintiff should make out the separate liability of each defendant to himself, and the extent of it. This he did to the satisfaction of the first Court, which gave him a decree accordingly. The lower Appellate Court reversed that decree on illegal grounds. We set aside the appellate decree, and restore and affirm that of the first Court, with costs of this Court and of the lower Appellate Court.

1 [Section 69: A person, who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.]

Reimbursement of per son paying money due by another in payment of which he is interested.

2 [Section 232: If a decree be transferred by assignment in writing or by operation of law from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it; and if that Court thinks fit, the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Application by transferee of decree.

Provided that where the decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to such execution:

Provided also that where a decree against several persons has been transferred to one of them, it shall not be executed against the others.]

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