JUDGMENT

Simpson, A J C - This is an application under Section 25 of the Small Cause Courts Act. The facts are that B. Bishun Narayan, who figures as opposite party No. 3, brought a suit in the Rent Court, against a number of under-proprietors, and obtained a joint decree against them. In execution of this decree he obtained a sum of Rs. 186-9 from two of the judgment-debtors, Ram Autar and Bhaggan, who now figure as opposite party 1 and 2. As this amount was in excess of what they were due to pay, they brought a suit for contribution against a number of the other judgment-debtors. Ultimately, only one of these defendants contested the suit. That was the present applicant, Ram Harakh. A decree was passed against various defendants for various amounts. As regards Ram Harakh the decree against him was for Rs. 25-5-6 but he was also saddled with the entire cost of the suit which amounted to about Rs. 35.

2. He applies to this Court on two grounds. The first is that the Small Cause Court had no jurisdiction because the suit was one such as is described in Article 41 of the Second Schedule for contribution by a sharer against a co-sharer. This contention is wrong. This exact point was decided in Suraj Bahksh Singh v. Raghubar Singh (1914) 1 O.L.J. 244. The true doctrine is that the rights of the co-sharers, inter se, merge in their rights and liabilities as co-judgment-debtors in regard to the decree, and suit for contribution being between judgment-debtors, does not fall under Article 41. The ruling I have quoted is that of a single Judge, but it was upheld by a Bench of this Court in Maharaj Sir Bhagwati Prasad Singh v. Raja Muhammad Abdul Hasan Khan (1918) 5 O.L.J. 109. That decision is binding on me. I may add that I agree with it.

3. The second point is that the applicant ought not to be saddled with the whole of the costs. But orders with regard to costs are discretionary orders and this Court will not ordinarily make use of its powers, under Section 25 to upset an order of the Small Cause Court as to costs. The applicant prolonged the proceedings after all the other defendants had admitted the justice of the plaintiff's claim, and it may very well be that he was rightly saddled with costs. The application is dismissed with costs.