Vadula Satyanarayanamurty vs The Official Receiver, West Godavary and Others

Satyanarayana Rao, J.—The plaintiff is the appellant. The suit was for recovery of a sum of Rs. 2,293-12-7 by selling the lands in the

possession of the various defendants who have been impleaded as parties to the suit. The wife of the first defendant who is the 36th defendant

obtained a maintenance decree in O.S. No. 41 of 1921, Sub-Court, Rajahmundry, against the first defendant. The decree also gave a charge

against the properties of the first defendant which are items 1 to 42 of the plaint schedule. The plaintiff purchased on 13th February, 1931, under

Ex. P an extent of five acres and 82 cents from the first defendant and the deed of sale executed in his favour contained also an indemnity in his

favour charging items 30, 31, 32 and 34 for the amount of loss that might possibly accrue to the plaintiff in case the properties sold to him were to

be sold in execution of the maintenance decree. The decree-holder in O.S. No. 41 of 1921, in fact, brought the properties purchased by the

plaintiff to sale and the plaintiff was obliged to pay a sum of Rs. 1,500 to avert.the sale. He now claims that he is entitled to contribution from the

other items in the possession of the various defendants, some of whom were also purchasers from the first defendant and the Official Receiver of

the various items. As many as 17 issues were framed in the suit. The learned District Munsiff recorded findings on issues 1, 3, 7, 8, 15, 16, 2 and

In the view he took of the case, he was of opinion that as the plaintiff had an indemnity, in respect of which a charge was also created over items

30, 31, 32 and 34, he was not entitled to contribution. The result was that the suit was decreed with costs against items 31, 32 and 34 in the

possession of defendants 2, 5, 49 and 52 to 55 and was dismissed in respect of other items. As regards item 30 which was sold in Court auction

in pursuance of the maintenance decree and the surplus sale proceeds of which were in Court, the decree of the District Munsiff was that the

surplus sale proceeds of item 30, if any, remaining in deposit in the Sub-Court to the credit of O.S. No. 41 of 1921 should be proceeded against

by the plaintiff and credited towards this decree.

In so far as the plaintiff''s suit for contribution was dismissed, he preferred an appeal to the Sub-Court. The learned Subordinate Judge agreed

with the view of the learned District Munsiff, and following a Full Bench of this Court in Damodaraswami v. Govindarajulu1, he dismissed the

appeal.

In this second appeal, the only question that was argued was that the Court8 below have entirely misunderstood the decision of the Full Bench

in Damodarasami Naicken and Others Vs. Govindarajulu Naidu and Another, which overruled the earlier decisions to the contrary and followed

the decision in Ramabhadrachar v. Srinivasa Iyengar ILR (1900) Mad. 85. I think that this contention is well founded. The decision of the Full

Bench far from supporting the contentions of the defendants, as the learned Subordinate Judge wrongly assumed, supports the plaintiff. The

argument that was accepted by the Courts below was that the indemnity clause contained in Ex. P constituted a "" contract to the contrary "" within

the meaning of Section 82 of the Transfer of Property Act. The expression "" contract to the contrary "" occurring in Section 82 was interpreted by

the Full Bench as meaning a contract between the mortgagee on the one hand and the mortgagor or mortgagors on the other and not a contract

inter se between the mortgagors or their representatives in interest. In view of this express and binding decision on the point, it is unnecessary to

refer to the earlier cases. I am therefore of opinion that the view of the Courts below that the plaintiff was not entitled to contribution from the other

items is unsustainable.

There is, however, a security created under Ex. P under the indemnity clause contained therein. The plaintiff can only proceed to enforce his

claim for contribution after realising such amount as is possible to realise from items 30, 31, 32 and 34 and giving credit to it. This was also the

course adopted by the plaintiff in Ramabhadrachar v. Srinivasa Iyengar ILR (1900) Mad. 85. I think that the owners of the other items would be

entitled, on the principle of marshalling contained in Section 81 of the Transfer of Property Act, to insist that the plaintiff should proceed first

against items 30, 31, 32 and 34 and then only enforce a claim for contribution against the other properties for the balance. The trial Court,

however, has not decided issues 4, 5 and 9 to 14; and in the view that the claim for contribution is mainteshable, these issues have now to be

determined. It will be open to the parties to urge all the contentions that are open to them under those issues and raised by them in their written

statements. Liberty is also given to both the parties to adduce such evidence as they choose to place before the Court on those issues. The second

appeal is therefore allowed, and the suit is remanded for disposal of the issues above specified in the light of this judgment. The parties will bear

their own costs in this Court and also in the lower appellate Court. The District Munsiff will provide for costs of the trial before him. The decree of

the District Munsiff against items 30, 31, 32 and 34 with costs as decreed by him will stand.

If any item of property has been sold and the amount of sale consideration is available, the claim for contribution will attach to the amount that is

available. Court-fee paid on the memorandum of second appeal and in the lower appellate Court will be refunded.

No leave.