The Judgment of the Court was as fellows:—

These two appeals arise out of a contribution suit. Jagabandhu the predecessor of the Plaintiff, Mathura Nath the predecessor of Defendants Nos. 1-3, Umesh Chandra the predecessor of Defendants Nos. 5 and 6 and Defendant No. 4 held a Nim Osat Taluk. The landlord in execution of a decree for arrears of rent in respect of it brought the taluk to sale when one Somoraddi who had a subordinate interest in it deposited the decretal amount under sec. 171 of the Bengal Tenancy Act, Subsequently he brought a suit against the Nim Osat Talukdars to recover the amount he had paid on their behalf to satisfy the landlord's decree. He obtained a decree and in execution of it some property belonging exclusively to the Plaintiff was sold for Rs. 1,033. The Plaintiff, therefore, sued Defendants Nos. 1-3, Defendants Nos. 5-6 and Defendant No. 4 to recover from each set of Defendants ¼th share of the sum of Rs. 1,033 with interest thereon. It appears that the decree-holder Somoraddi's debts were not fully satisfied by the sale of the Plaintiff's property. Sometime after, the Defendant No. 4 paid the outstanding amount in another execution case to the decree-holder and thus squared up the liabilities of all the Defendants under the decree. The different sets of Defendants raised various objections in the Plaintiff's suit for contribution, some of which will be noticed later. During the pendency of the suit the Plaintiff and the Defendants Nos. 1-3 entered into a compromise and thus they (Defendants Nos. 1-3) went out of the suit. The Munsif in the trial Court gave a decree for Rs. 350-14-8 p against Defendants Nos. 5 and 6 and for the same amount against Defendant No. 4. This amount was arrived at by calculating the ¼th share of each set of Defendants in the sum of Rs. 1,033 realised from the Plaintiff alone with interest at the rate of 12 per cent per annum. Defendant No. 4 appealed and the learned Subordinate Judge dismissed the Plaintiff's suit against Defendant No. 4 but passed a further decree against Defendants Nos. 5 and 6 for Rs. 116-15-6 p. It should be noted that in the appeal by Defendant No. 4, Defendants Nos. 5 and 6 were not made Respondents.

These two appeals are by the Plaintiff and Defendants Nos. 5 and 6. We will first deal with the Plaintiff's appeal Which is No. 1398 of 1926. It is argued on his behalf that as he paid the amount which was payable by all the Defendants, he is entitled to a decree against Defendant No. 4 also. It is submitted on behalf of Defendant No. 4 that as he has paid his dues in full to the decree-holder, he is not liable to contribute towards the amount realised from the Plaintiff. Now the claim for contribution is based on principles of equity and the Court must take an equitable view in the circumstances of each case and decide according to principles of equity and adjust the rights of the parties in accordance with rules consistent with justice, equity and good conscience. [Magniram v. Mehdi Hossein Khan(1)]. The right to contribution though an equitable right arises out of an implied contract of indemnity between the parties liable for the same debt. This contractual obligation attaches to each of the persons liable to satisfy the common debt. But this right is not confined to secs. 69 and 70 of the Contract Act but may be based upon other equitable considerations and these considerations are available as much to the Plaintiff as to the Defendants. Registered Jessore Loan Co., Ltd. v. Gopal Hari Ghose Chowdhuri; which is authority further for the view that all difference between the parties should be settled and adjusted in one suit. In Matungini Debi v. Brojeswari Banerji, it was held among other things that no contribution can be levied against a person who has paid more than his share of the debt. In adjusting the rights of the parties in a suit for contribution the attention of the Court is not to be limited by the liabilities arising from the claim in the suit but in adjusting the equitable rights of the parties to the suit it may go beyond the scope of the suit and enquire into other mutual liabilities. In Gogun Chand Dutt v. Huri Mohan Dutt(4) the suit was brought by the Plaintiff for contribution against the Defendant on the ground that he had paid rent in excess of his share under a claim which he and the Defendant were joint liable to satisfy. In that case the Defendant proved that he had paid the whole rent similarly on previous occasions and such payments were taken into consideration in adjusting the rights of the parties without the Defendants pleading a set off. In Gajadhar Mahto v. Raghubar Gope(5) in a suit for contribution by a co-sharer for a certain sum of money paid on behalf of his other co-sharer to discharge a decree for rent obtained against them jointly, the Defendant claimed a set-off on account of previous payments by him under similar decrees for joint debts. The Court upheld the plea and the Defendant was allowed to prove payments on behalf of tree Plaintiff on other occasions and further it held that in such cases no question of limitation arose. That being the law we have to consider how the rights of the different parties in this suit can be adjusted in justice, equity and good conscience.

Before dealing further with this matter it will be convenient to dispose of the appeal by Defendants Nos. 5 and 6. Their first ground is that as they were no parties in the appeal the Court was wrong in passing a decree against them in their absence. The order passed by the lower Court allowing a decree against them for a further sum was apparently passed under Or. 41, r. 33, Civil Procedure Code. I do not see why it cannot in a case like the present pass an order against a party to the suit in his absence although it would have been sound exercise of discretion to give an opportunity to that party of appearing before him and of being heard. The limitation to the application of this rule has been pointed out by their Lordships of the Judicial Committee in the case of Mahomed Khaleel Shirazi v. Les Tanneries Lyonnaises. The present case does not come within the rule of the decision of the Judicial Committee. Here the Plaintiff not having appealed, his right to claim a decree for the excess amount against Defendants Nos. 5 and 6 was barred and in his appeal against the other Defendants the Court could not under r. 33 grant a decree against persons not parties to the appeal. But the Defendant No. 4 who was one of the co-defendants could very well appeal to the Appellate Court and say that he was not liable for the Plaintiff's claim; and if in determining the point raised in the appeal the Court finds that the Plaintiff is entitled to recover the amount charged upon the Appellant from other Defendants the Court may pass a decree against them though not parties to the appeal. It would have been much better if the Court had acted under r. 20, Or. 41, instead of r. 33 and added the Defendants Nos. 5 and 6 as Respondents to the appeal and heard the matter in their presence. But it is not necessary to discuss the matter any further as all the parties are now before us and we are in a position to adjust their respective rights without giving effect to the decree of the lower Court.

It is next argued on behalf of the Defendants Nos. 5 and 6 who are the Appellants in Appeal No. 1224 of 1926 that it should have been held that the Plaintiff's suit was barred by limitation. The argument is based on certain facts which may be shortly stated. The money was realised from the Plaintiff under process of law on the 19th July 1920; the plaint was presented in the Munsif's Court at Barisal on the 18th July 1923; it was returned by that Court for want of jurisdiction for presentation in the proper Court on the 20th March 1924. The 21st, 22nd and 23rd days of March being holidays the plaint was presented in the Munsif's Court at Khulna on the 24th March. On these facts the learned Subordinate Judge has held that the Plaintiff's suit is not barred by the application of sec. 14 of the Limitation Act which gives an extension of time to the Plaintiff up till the 20th March and sec. 4 of the Limitation Act which gives him a further period till the 24th March. The learned Advocate appearing for the Appellants argues that sec. 4 of the Limitation Act cannot be applied to a case in which extension of time has been claimed under sec. 14 and reference in this connection is made to Abhoya Charcot Chakravarti v. Gour Mohan Dutt. That case has no application because there the parties did not claim the return of the plaint immediately after it was decided that the suit was filed in a wrong Court and further that the suit was not instituted in the proper Court on the day on which it re-opened but it was instituted on the following day. Then it is argued that the Plaintiff is not entitled to the benefit of sec. 14 and sec. 4 tacked together. It support of this contention reliance has been placed on the case of Ummathu v. Pathumma. The question raised in that case requires a good deal of consideration; but I do not wish to discuss the view taken by the learned Judges because on the facts that case is distinguishable from the present. There the Plaintiff took advantage of sec. 4 before instituting the suit and she instituted the suit in the wrong Court, after the period of limitation had expired during the holidays, on the re-opening day of that Court. It is not clear but probably the proper Court was open when the time expired. The plaint was returned to the Plaintiff and the suit was instituted in the proper Court. On the objection on the ground of limitation the Court held that as the suit had already become barred before it was presented in a wrong Court, sec. 4 has no application to the case inasmuch as it contemplates the filing of a suit in the proper Court. One of the learned Judges, Mr. Justice Ramesam, clearly puts the point before him for consideration: “Can the Appellant get the benefit of sec. 4 if the holiday precedes such periods?” The answer of the learned Judge was in the negative. The fact here is that the plaint was presented and was returned to the Plaintiff on the 20th of March and he should have presented it to the proper-Court on the next day. It was impossible for him to do so for the proper Court was closed. In the Madras case the learned Judges have referred to some other cases of that Court and adopted the view that under sec. 4 of the Limitation Act, the fact whether the proper Court was closed, and not the wrong Court, is the matter to be taken into consideration. It may be said on the facts of the case before us that it was not a question really under sec. 4. The plaint was returned to the Plaintiff and the Plaintiff was bound to present it in the proper Court with as little delay as possible and it is evident that he could not do so before the 24th of March. This objection must accordingly be overruled.

The Appellants in Appeal No. 1224 have also argued in the same strain as the Plaintiff in the other appeal with reference to the liability of the Defendant No. 4. The decision of the question therefore will be held to apply to both these appeals. According to the principles that we have enunciated above we have to adjust the rights of the parties in this suit on grounds of justice. It is in evidence that the total amount recoverable under Somoraddi's decree was Rs. 1,380; each of the four co-sharers was liable to pay Rs. 345 as his share of the debt. The Defendant No. 4 paid Rs. 346 to the decree-holder for the amount which remained unrealised after the sale of the Plaintiff's property. He thus paid whatever was due from him and must be held to have discharged himself from the debt; but it is argued on behalf of the Plaintiff that on the authority of the case, Matungini Debi v. Brojeswari Banerji if the Defendant had paid more than his share he could have claimed discharge. It so happened that in that case the Defendant had paid more than his share but we see no reason for holding that if he does not pay more than his share he cannot claim exemption from liability to contribute towards the amount payable in liquidation of the debt of the co-sharers. If that be the principle as suggested by the Plaintiff, the Defendant No. 4 in this case has paid one rupee more than his proper share.

Next we have to look to the Plaintiff's claim. He has paid Rs. 1,033 in partial discharge of the common debt. From this amount should be deducted the amount which he was liable to pay under the decree, namely, Rs. 345. This leaves a balance of Rs. 688, half of which is payable by Defendants Nos. 1 to 3 and the other half by the Defendants Nos. 5 and 6; and this amount he is entitled to recover from those Defendants. He has compromised the suit with Defendants Nos. 1 to 3, against whom there can be no further claim. He is accordingly entitled to recover Rs. 344 with interest from Defendants Nos. 5 and 6. The lower Courts have allowed the Plaintiff interest at 12 per cent per annum in most of the reported cases the rate of interest allowed in such cases is six per cent per annum. We should accordingly allow the Plaintiff interest at the rate of six per cent per annum from the 19th of July 1920, the date on which money was realised from the Plaintiff, to the 18th of July 1923, the date on which the plaint was presented in the Barisal Court. This gives us the amount of Rs. 62 which the Plaintiff is entitled to recover from Defendants Nos. 5 and 6. Under the decree of the lower Courts the Plaintiff has already recovered from these Defendants Rs. 250-14-6 p. There will be a decree against them for the balance with interest at six per cent per annum till the date of realization.

As regards the Defendant No. 4, he paid a sum of Rs. 346 to the decree-holder on the 2nd of June 1922. This amount was paid on behalf of the four co-sharers including the Plaintiff. The Plaintiff is entitled to recover interest from Defendant No. 4 from 19th July 1920 to 2nd of June 1922 and the Defendant No. 4 in his turn is entitled to recover interest from the Plaintiff for one-fourth of the amount of Rs. 346 which he paid on the 2nd June 1922 on behalf of the Plaintiff up to the present date. On making a rough calculation we think no party should have any claim against the other.

The result is that Appeal No. 1398 is dismissed with costs; Appeal No. 1224 is partly allowed and the decrees of the lower Courts are varied in the way suggested above. We allow no costs in this appeal. Costs of the Courts below in proportion.

P.C