JUDGMENT
P.N. Mookerjee, J.
1. This second appeal arises out of a suit for contribution. The suit has been dismissed by both the courts below. The plaintiff’s are the appellants before me.
2. It appears that the plaintiff’s and the defendant were co-sharers of a Patni-tenure, the former being the owner to the extent of -/10/-share and the latter to the extent of the remaining -/6/-. The joint estate of the party was in Charge of a common manager from. 1344 to 1345 B.S. During this period the rents for the years 1344 to 1345 B. S. fell into arrears and the Zemindar or the Landlord instituted a suit for the recovery of those arrears. The suit, however, was instituted against the common manager as representing the plaintiffs only and in execution of the decree which the landlord obtained the defaulting Patni was sought to be put up to sale, when the plaintiffs made the payment and averted the sale. This payment was made on 17-3-1946. Thereafter, in 1946, the present suit was instituted claiming contribution from the defendant in respect of their -/6/- share the claim amounting to about Rs. 950/-. The main defence was that, in the circumstances of this case, the plaintiffs were not entitled to any contribution.
That was put forward on the footing that the payment, alleged to have been made by the plaintiffs, was not really made by them, but by the common manager on behalf of the parties. It was also contended that as the defendant was not a party to the decree in the rent suit, his interest could not have been affected by the sale in execution of the decree passed therein and that, therefore, he was not in any way benefited by the payment made even if it was taken to have been made by the plaintiffs. It was, accordingly, pleaded that no claim for contribution could lie in the present case. This defence succeeded in both the courts below and hence the present second appeal by the plaintiffs. It may be mentioned also that the learned Munsif was further of the opinion that the suit was not maintainable in its present form and was bad for defect of parties, he being of the opinion, that the common manager was a necessary party to this suit.
3. In my opinion, the decisions of the two courts below cannot be sustained. The courts below proceeded on the footing that unless the case could be brought within Section 69, Contract Act, the plaintiff’s claim for contribution in the present case must fail and as the defendant was not a party to the decree and as clearly, therefore, his interest in the property could not have been affected by the sale in execution of that decree, the courts below have found that he was not benefited by the payment made by the plaintiffs and, accordingly, no claim for contribution would lie under Section 69, Contract Act. So far as the findings of the two courts below that the defendant was not a party to the rent suit or to the decree passed therein and that his interest in the property would not have been affected by the sale in execution of that decree, there can be no dispute. It may also be conceded that if the case had come under Section 69, Contract Act it would have been difficult to hold that, on the date when the plaintiffs made the payment the claim being admittedly barred against the defendant, any benefit as contemplated by that section was conferred upon the defendant by that payment.
Section 69, Contract Act, therefore, would not entitle the plaintiffs to a decree in the present suit. It seems to me further that Section 70 of that Act also would not apply to this case, but in my opinion, the plaintiffs’ claim is sustainable and ought to be sustained on Section 43 of the Act. Clearly, in this case the defendant along with the plaintiffs was liable for the Patni rent of the years 1344 to 1345 B. S. It was a case of joint and several liability and their position was as that of joint promisors under that section. It seems to me, therefore, that when the plaintiffs made the payment they discharged the liability of their co-promisors as well and became entitled to contribution from them, in respect of that payment, the cause of action arising on the date of such payment. The fact that at that date the claim for rent was barred against the defendant would not be relevant for the purpose of Section 43. This view is supported by the decision of the Madras High Court in the case of — ‘Abraham Servai v. Raphial Muthirian’, AIR 1915 Mad 675 (A) and also by the decision of this court in the case — ‘Mohammad Imran v. Durga Pada Chattopadhya’, 39 Cal WN 985 (B).
I, accordingly, hold that in the present case the plaintiffs are entitled to a decree for contribution as claimed in the plaint under Section 43, Contract Act. The view of the lower appellate court and also of the trial court on this part of the case was, therefore, wrong.
4. As I have already said the learned Munsif was also of the opinion that the suit was not maintainable and was bad for defect of parties because the common manager had not been joined in the suit. This matter was not considered by the lower appellate court but it seems to me that, in the present case, common manager would hardly be a necessary party. The plaintiffs made the payment and discharged the common liability of themselves and the defendant. They are entitled, as I have held above to contribution under Section 43, Contract Act. I am unable to see how in a suit of this description the common manager would be a necessary party. There is no dispute that the estate of the defendant had been released in 1945, i.e. before the institution of the present suit. I, accordingly, hold that the suit is not also bad for defect of parties and no objection to its maintainability can be taken in law.
5. In the result, therefore, this appeal is
allowed. The judgment and decrees of the two
courts below are set aside, and the plaintiffs’ suit
is decreed with costs in the trial court. As there
is no appearance on behalf of the respondent in
this court there will be no order for costs in this
court. There will also be, in the circumstances
of this case, no order for costs in the lower appellate court.
