Palepu Narayanamurthi v. Komali Chandrayya

The suit is one for contribution. A suit was filed on a promissory note against the plaintiff and the 1st defendant and a decree was passed against them jointly. The whole of the decree amount was collected from the plaintiff, who seeks to recover half of it from the 1st defendant. The latter's defence is that he and the plaintiff were engaged in an alleged partnership, that the money was borrowed for that partnership and that, under the circumstances a suit for contribution does not lie.

It has been repeatedly held in this country, following the Old English case of Merryweather v. Nixan that a suit for contribution between wrong-doers does not lie. In a case from Scotland Palmar v. Wick and Pulteneytown Steam Shipping Co.(3), the House of Lords refused to follow that decision, holding that it was not founded on any principle of equity. The Lord Chancellor said in his judgment:

“Why, then, should a co-debtor who has paid the whole sum…………….when ha seeks to recover the share of his co-debtor, be subject more than other co-obligates to the answer that, the entire debt having been discharged, nothing remains due on the judgment and that it can therefore no longer be proceeded with? The only answer, as it seems to me, must be that the joint debt resulted from a joint wrong and that the law will not permit or assist and wrong-doer to recover contribution from another.”

It will be observed however, that this is to allow the defender to set up his wrong by way of answer, for the pursuer makes out a prima facie case by the production of the judgment. He has no need to rely on the joint wrong or to go behind the judgment. He then went on to the remark on Merryweather v. Nixan that it did not appear to him to be founded on any principle of justice or equity or even of public policy, which justifies its extension to the jurisprudence of other countries. It seems strange that a decision so characterised should have been imported into the Law of India. Lord Watson took the same view, remarking that the merits of the rule were not such as to commend it to universal acceptation. He further observed:

“this is not an action brought by one delinquent against whom a decree has been passed in order to obtain contribution from his co-delinquent who has not been sued. The respondent company do not require to allege and prove either debit or quasi debit as the foundation of their claim, which rests upon a decree constituting a civil debt against the appellant as well as against themselves. There might be some principle in a Court of law refusing to permit a suitor to aver and prove his own crime or moral delinquency as the medium of recovering from one whom he alleges to have been a co-delinquent. But the case is very different where the injured party's claim of damage is liquidated by a joint and several decree against all the delinquents. In that case—which is the present case—the sum decreed is simply a civil debt…………In this case, it is the appellant who seeks to escape from the natural import of the decree, by going behind it in order to establish his own delinquency.”

Now that is precisely the position here. The plaintiff produces the decree and proves that he has satisfied it. He is under no necessity to rely on the joint wrong or to go behind the decree. It is the defendant, on the other hand, who seeks to avoid the decree by alleging and prove his own co-delinquency. If any principle of public policy is involved, it is, it seems to me, that a suitor should not be allowed to succeed by setting up his own delinquency. That principle has been laid down in a decision of this Court in Kamayya v. Mamayya and I think that it should be applied in this case. The plaintiff can succeed on producing the satisfied decree. There is nothing else that he has to do. The defendant cannot succeed except by alleging and proving his own delinquency and therefore must fail. The suit is decreed with costs throughout.

C. K.Suit decreed.