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Judgment
Stone, J.—This is an appeal from the decree of the Subordinate Judge of Narsapur. The appellants are defendants 10 and 11. The plaintiff is the respondent. The suit is one in which the plaintiff seeks contribution from the defendants in the following circumstances: - The first defendant in this action was the plaintiff in O.S. No. 20 of 1916 which was finally disposed of in appeal No. 362 of 1918. The plaintiff''s father and the remaining defendants were the defendants in that suit.
That action was for recovery of possession and mesne profits. The plaintiff to that action was the reversioner. The defendants were alienees from a widow. There were different alienees relating to different parcels of property. It will be therefore apparent that the action was brought against those various defendants not because they were in any way legally interconnected but as a matter of convenience. In the result the plaintiff in that suit obtained a joint-decree against all the defendants in that suit for possession, mesne profits and costs. In the appeal one of the grounds of appeal was that the decree in such cases should not have been joint but that such of the defendants should have been made liable to deliver up possession of the parcel of land of which he was the alienee and to account for the mesne profits in respect of such parcel of land only. That ground of appeal does not appear to have been successfully taken with the result that the joint-decree was maintained.
The plaintiff in that suit thereupon elected to proceed against the present plaintiff''s father, the seventieth defendant in that suit for the whole of the mesne profits and costs. The plaintiff''s father paid. The plaintiff''s father subsequently died and his interest is represented by the plaintiff who seeks in this suit contribution from the other defendants in that action for their share of the mesne profits and costs which the plaintiff''s father paid. The suit has been successful. Against the decree given in the lower Court only defendants 10 and 11 appeal and four grounds of appeal are raised.
The first ground of appeal is founded upon paragragh 4 of the written statement of these defendants. The second depends upon the view that there is no contribution between joint tortfeasors and the third is that these defendants have in fact already paid. All these grounds of appeal have been abandoned. Paragraph 4 is noc pressed. The ground of appeal about joint tortfeasors has been given up and the question of fact as to payment although faintly urged by Mr. Raghava Rao is obviously hopeless because the evidence is so very feeble on this question of fact that no appellate Court would think of disturbing the conclusion that the evidence is insufficient.
There remains the fourth and substantial ground of appeal which may be expressed as follows: - That in point of law where a joint-decree is made against various co-defendants and payment is enforced against one of them that one has no right of contribution against the others unless: - (1) there is an implied contract whereby those who did not pay will be taken to have agreed with the one who has paid that they will reimburse him or (2) there is an equity which entitles one who has paid to claim over from those who have not paid their respective shares. It is further urged that at any rate so far as costs are concerned, there is no right of contribution where one of many defendants has paid all the costs under a decree which gives costs against all defendants. It will be convenient to deal with the last point first. This is founded upon a passage in Halsbury (1st Edition) Vol. 15, paragraph 993 in the following words:
Where co-defendants are decreed to pay the costs of an action one co-defendant cannot by an independent proceeding obtain contribution in respect of such costs against the other.
In support of that passage are quoted Dearsly v. Middleweek (1881) L.R. 18 Ch. D. 236 and Real and Personal Advance Co. v. McCarthy (1881) 18 Ch. D. 362. If Dearsly v. Middleweek (1881) L.R. Ch. D. 236 is referred to, it would be found that it is a very short judgment. Mr. Justice Fry, as he then was, purported to act upon a dictum contained in the judgment passed very recently at that time by the Court of Appeal and reported in the same volume Real and Personal Advance Co. v. McCarthy (1881) 18 Ch. D. 362. We have searched that judgment in order to discover that dictum and we are unable to find it and Mr. Raghava Rao very properly admits that he too has failed to find it out and it would seem that unless there was something said in the Court of Appeal that is not reported Mr. Justice Fry was acting under a misapprehension. The case before the Court of Appeal reported in Real and Personal Advance Co. v. McCarthy (1881) 18 Ch. D. 362 is in our opinion dealing with an entirely different point and contains no dictum on this point at all. The decision in Real and Personal Advance Co. v. McCarthy (1881) 18 Ch. D. 362 was followed in Mulla Singh v. Jagannath Singh I.L.R.(1910) 32 All. 585 but the facts there are quite different from the facts here and it would seem that there the Court very largely relied on the fact that there were no equities justifying contribution. In Fakire v. Tassadduq Hussain I.L.R.(1897) 19 All. 462 contribution was refused but there the various defendants were pleading defences that made the defendants antagonistic one against the other. It was therefore not possible to say that when one defendant paid the costs he was in any sense paying on behalf of the others. The others were as much his opponents as the plaintiff. Muthuswami Aiyar Vs. Subramania Aiyar, is another case in which our learned brother Curgenven, J., has refused contribution in case of costs. But there the facts were entirely different; there was only one contesting defendant-alienee and the other defendants were his tenants and were merely pro forma defendants and were ex parte. The contesting defendant was the person who fought the case throughout and in view of the circumstances it could not be said that when he paid costs he paid in any sense on behalf of his co-defendants. Here on the other hand these various defendants are entirely unconnected apart from the fact that they happened to be the defendants in the same case. They are not joint tort-feasors. There is no legal link joining the one to the other. One happens to have bought one property and another another parcel of land. It is convenient to try an action which raises the question as to whether the person who has sold these various items of the property to these various persons had power so to do and if not whether the plaintiff is the person who is entitled to recover the property. But although that is convenient it does not in any way link up one defendant with another so as to make a payment in satisfaction of the resulting decree a payment in his own sole interest. The only reason why the present plaintiff''s father was made to pay the mesne profits derived from parcels of land with which he had no concern but which were in the possession of his co-defendants was the fact that in that previous action a joint-decree had been obtained against all the then defendants. An effort was made to put that right and get a decree in a form in which each defendant was made responsible only for his respective part. That effort failed. It may be that in principle and pursuant to the line of thought indicated in Gurudas Kundu Chaudhuri v. Hemendra Kumar Ray I.L.R.(1929) 57 Cal. 1 the decree should have been not joint but should have been against each of the defendants in respect of his particular portion of land and the mesne profits in respect thereof; it may be that the costs should have been divided proportionately amongst the various defendants. But that was not done and as a consequence it was possible for the plaintiff in that suit to recover the whole of the mesne profits and the whole of the costs against one defendant and that he did.
Such being the fact it seems to us to be clear that every principle of equity points to the justness of the present plaintiff''s claim. Further we are of opinion that there was an implied contract on the part of'' the other defendants who had joined the plaintiff''s father in the appeal and urged that this joint-decree should be broken up into its several parts, a contract to contribute their shares to the one defendant who was made liable for the whole of the decree debt which according to the view that they had expressed in appeal should not be borne by him except to the extent of his share.
For these reasons we are of opinion that the learned judge was right in the view he took and the appeal therefore fails and is dismissed with costs.
There remains a question as to whether there is a slip in the learned Judge''s judgment. It is said that the 26th paragraph contains in relation to item 12 a duplicate term or rather two expressions, which though not duplicate in the sense that they are exactly the same, have the effect of making defendant 11 liable twice. The passages are as follows:
Defendants 10 and 11 would be liable in respect of item 12 to the extent of Rs. 166-8 0" and "for item 12 the 11th defendant will be liable for Rs. 173-2-11".
It is not possible to say whether this is a slip or deliberate or if deliberate whether it is justified, in the absence of the momorandum filed and referred to at the end of paragraph 25 of the lower Court''s judgment. This matter can be further inquired into by counsel and can be posted to be spoken to 14 days hence. Meanwhile the statements can be sent for by the office from the lower Court and the same shown to the counsel.
This case having been set down to be spoken to this day, the Court made the following
ORDER
Counsel agree that a slip has occurred and the decree should be modified by deleting the clause "that eleventh defendant do pay plaintiff Rs. 173-2-11 for item 12".