Atul Chandra Gupta, Jatindranath Sanyal, Jatindra Mohan Chaudhury, Joy Gopal Ghose and Sisir Kumar Basu for the Respondents.

The Judgment of the Court was as follows:—

On the 7th January, 1929, ten persons jointly borrowed Rs. 18,000 from the Coochbehar Loan Company, Ltd., hereafter called the Company, on a promissory note, carrying interest at 9 per cent, per annum. Of these ten persons five were and are residents and subjects of the Cooch Behar State but the remaining five persons were and are British subjects and residents of British India. On the 6th January, 1932, the Company instituted a suit to recover its dues against the said ten persons in the Court of the Civil Judge at Cooch Behar and on the 1st April, 1932, recovered an ex parte decree for Rs. 21,203 and costs. The five persons who are British subjects and residents of British India (Defendants Nos. 1 to 5 of this suit) did not at any stage appear in the Cooch Behar Court, and so did not submit to the jurisdiction of that Court. After the said decree a sum of Rs. 12,236 was realised by the Company from the five persons who were residents of Cooch Behar and subjects of that State. They are Defendants Nos. 6 to 10 in this suit. Thereafter the Company applied on the 17th January, 1934, to execute the said decree against Defendants Nos. 1 to 5 in a British Indian Court, namely the Court of the Subordinate Judge at Jalpaiguri, as in the notification issued by the Governor-General in Council under sec. 44 of the Civil Procedure Code, Civil Courts of Cooch Behar are included. The Subordinate Judge at Jalpaiguri, however, by his order, dated the 17th March, 1934, refused to execute that decree, on the ground that the decree of the Civil Court of Cooch Behar passed against the said Defendants (Defendants Nos. 1 to 5) was void as that Court had no jurisdiction over them, as they were neither residents of Cooch Behar, nor subjects of the Cooch Behar State, nor had they submitted to the jurisdiction of that Court. On the same date on which the application for execution was filed in the said Court, that is the 17th January, 1934, the suit in which this appeal arises was filed by the Company in the Court of the Subordinate Judge at Jalpaiguri against the aforesaid ten persons to recover the balance, namely the sum of Rs. 11,959. The suit was for enforcement of the judgment of the Cooch Behar Court against Defendants Nos. 1 to 5, alternatively it was based on the original cause of action, namely on the promissory note, and a decree against Defendants Nos. 1 to 5 for the balance due was prayed for. To save the suit from the bar of limitation, so far as it was based on the original cause of action, acknowledgment of liability on the part of the Defendants was pleaded. The claim to enforce the judgment of the Cooch Behar Court against the said Defendants was given up by the Company in the lower Court and that claim has not been reiterated before us.

The learned Subordinate Judge by his judgment, dated the 4th December, 1936, held that the Company had the right to fall back upon the original cause of action and that the suit based on the promissory note was not barred by limitation by reason of acknowledgment of liability by Defendants Nos. 1 to 4 and of Defendant No. 5, who had died during the pendency of the suit and whose heirs are Defendants No. 5(a) and 5(b). He accordingly decreed the suit against Defendant Nos. 1 to 5(b). Defendants Nos. 1 to 5(b) have preferred this ??? It is contended on their behalf ???

(1) the suit based on the ??? note is not maintainable and ???

(2) in any event it is barred by limitation.

The first point has been urged on two grounds:

(a) that the original cause of action, no longer subsists after the judgment of the Cooch Behar Court, it being merged therein and

(b) even if that be not the position, the Company having sued and obtained an effective decree in the Cooch Behar Court against some of the joint promisers, e.g, Defendants Nos. 6 to 10, cannot again sue the other joint promisers, (Defendants Nos. 1 to 5) on the promissory note.

It is a well established principle of Private International Law that a foreign judgment only creates a new obligation to pay but does not extinguish the original cause of action for the debt. A foreign judgment involves no merger of the original cause of action. The creditor thereupon has the option of bringing an action in a domestic tribunal on the foreign judgment which he has recovered or of bringing in a domestic tribunal a suit upon the original cause of action. Tindal, C.J, speaking of a foreign judgment in Smith v. Nicolls observed thus:

“If therefore the judgment has not altered the nature of the rights between the parties, it appears to me that the Plaintiff has the option, either to resort to the original ground of action or to bring an assumpsit on the judgment recovered.”

Such being the principle, it does not matter whether the procedure for enforcing a foreign judgment is by a suit or by an application in the form of execution. The mere fact that by reason of the notification issued by the Governor-General in Council under sec. 44 of the Civil Procedure Code, the Plaintiff had the right to enforce the foreign judgment by an application for ??? would not in our judgment ??? the legal character of the foreign judgment. In law it would still be regarded as only creating an independent obligation on the judgment-debtor to pay the sum adjudged without involving a merger of the original cause of action. The case of Chormal Balchand v. Kasturi Chanel was a case where the Plaintiff had sued on the foreign judgment and not on the original cause of action. The effect of the notification issued under sec. 44 of the Code of Civil Procedure was, however, considered and it was held that only the procedure for enforcing the foreign judgment in a British Indian Court had been changed thereby, leaving all the incidents of a foreign judgment untouched. In the case before us there is an additional reason for holding that the original cause of action against Defendants Nos. 1 to 5 has not been merged in the judgment of the Cooch Behar Court, because from the point of view of Private International Law the judgment of that Court against Defendants Nos. 1 to 5 is a nullity and has been so adjudged by a competent British Indian Court. We accordingly hold that the Company's suit in the Court of the Subordinate Judge at Jalpaiguri, regarded as a suit based on the original cause of action, e.g, on the promissory note, is a good suit. The first branch of Dr. Sen Gupta's argument on the first point is accordingly overruled.

The second ground in supwrt of the first point has been urged in the following manner. It is said that a joint promise by two or more promisers creates a joint liability and that this is the law in India. The only effect of sec. 43 of the Indian Contract Act is to give the promisee the right to sue any one of the joint promisers, without impleading the others in the suit, but it does not make the liability of joint promisers joint and several. A decree recovered against some of the joint promisers accordingly bars a second suit against the rest. For these propositions reliance has been placed on the judgment of Garth, C.J and Markby, J., in Hemendra Coomar Mullick v. Rajendralall Moonshee. The rule laid down in that case is invoked by the Appellants' Advocate by saying that as the decree passed against Defendants Nos. 1 to 5 by the Cooch Behar Court is a nullity, they must be regarded as not being parties in the Cooch Behar Court and the suit filed in the Cooch Behar Court must be regarded as having been filed against Defendants Nos. 6 to 10 only. We will assume that this is the true position.

There cannot be any dispute that if the liability is joint and several, a judgment obtained against some would be no bar to a suit against the others. In Hemendra Coomar Mullick's case it was held that a promissory note executed by several persons jointly creates in India a joint and not a joint and several liability. The rule laid down in King v. Hoare, a case of joint contract, and in Brinsmeed v. Harrison(5), a case of joint tort, was applied and it was held that a judgment, though unsatisfied, obtained against some of the joint promisers barred a second suit against the rest. The cases of Hemendra Coomar Midlick v. Rajendralall, King v. Hoare and cases of the same type where the same rule was laid down, e.g, Kendall v. Hamilton, etc., were all cases where both the suits, the first and the second, had been brought in domestic Courts.

In India there is a divergence of judicial opinion as to the effect of sec. 43 of the Indian Contract Act. In Hemendra Coomar Mullick's case it was held that section had not the effect of making the liability of joint promisers joint and several, and had not the effect of making inapplicable in India the rule laid down by Baron Parke in King v. Hoare. This view has been adopted in Madras. In Muhamad Askari v. Radhe Ram(7), Strachey, C.J and Banerjee, J., took a different view. In Bombay Farran, J., also took a different view of sec. 43 of the Contract Act. [Motilal v. Ghellabhai(8)]. In Shivlal Matilal v. Bridhichand Jivraj(9), Macleod, J., reviewed the leading cases on the subject and agreed with the view taken in Hemendra Coomar Mullick's case. In this Court the principle laid down therein has been followed in many cases. In Krishnadas Roy v. Kalitara(10), however, the specific question we have to decide was not decided, but there are observations in the judgment of both Chatterjee, J., and Richardson, J., which imply that a joint contract in India creates a joint and several liability on the part of the joint promisers. The matter again came up for decision in Miss Moselle Solomon v. Martin and Co.(11). The learned Judges Lort Williams, J. and Jack, J., differed on this point, though they agreed in decreeing the appeal on other grounds. In this state of the case-law we would have referred the matter to the Full Bench, but in the view we are taking that course is not necessary. We would proceed upon the assumption that the rule laid down in Hemendra Coomar Mullick's case is a good rule when both the suits are suits filed in domestic Courts. The observation made in that case must be taken to relate to suits in domestic tribunals, for Garth, C.J and Markby, J. were dealing with the previous judgment of a domestic and not of a foreign Court. The rule laid down by them was expressly based on the decision in King v. Hoare. We will have therefore to examine the grounds on which King v. Hoare and other English cases have proceeded.

Baron Parke first considered the case of only one debtor or one wrongdoer. He observed that on a judgment being recovered in a Court of record, the judgment was a bar to the original cause of action, because it is thereby reduced to a certainty and the object of the suit attained. It would be useless and vexatious to subject the Defendant again to another suit to obtain the same result. The second suit would be barred on the principle that the matter had passed by the result of the first suit to the domain of judgment transit in rem judicatam. The original cause of action, so to say, had merged in the judgment rendered. It had thereafter no existence, and so could not be enforced by a separate action. Baron Parke then considered the case of more than one joint debtor or more than one joint tort-feasor. He said that in such cases as the liability was joint, there was one cause of action for the breach of the joint contract or for the joint tort, and not as many causes of action in number as were parties to the joint contract concerned in the breach or as many persons concerned in the joint tort. As soon therefore there was a judgment against one or some of them, the cause of action which was a single one merged in the judgment on the same principles for ??? in the case where there was ??? one debtor or one tort-feasor, ??? the judgment in law nothing of original cause of action was left. In some cases which were decided after King v. Hoare it was said that Baron Parke had only laid down a rule of procedure but this view of King v. Hoare was negatived by the House of Lords in Kendall v. Hamilton. In that case it was also pointed out that the rule formulated in King v. Hoare did not proceed upon the principle of election, namely that the Plaintiff by suing some out of several joint debtors had elected to take them as his debtors to the exclusion of those whom he had not joined in the action, but that it proceeded upon two principles of substantive law. The first was the principle of the merger of the cause of action in the judgment—transit in rem judicatam—and the second was a principle of public policy that there should be an end of litigation—there should not be a vexatious succession of suits on the same cause of action—nemo debet bis vexari pro uma et eadem causa. Such being the basis of the rule laid down in King v. Hoare, the said rule cannot in our judgment apply where the first judgment pronounced against some of several joint promisers or contractors is a judgment not of a domestic Court but of a foreign Court, for a judgment of a foreign Court does not operate in merging in it the original cause and the principle of nemo debet bis vexari, etc., also does not apply. The original cause of action still subsists in such a case and a second suit based on it can still be filed in a domestic tribunal. On the principle analogous to the principle of cessante ratio legis cessat ipsa lex the rule formulated in King v. Hoare, and here in India in Hemendra Coomar Mullick v. Rajendralall Moonshee, should not be applied to the case before us, because the judgment in the previous suit was a judgment of a foreign Court. If that foreign judgment had been fully satisfied, a suit in the domestic tribunal would have been barred but then on a different principle. The application of the rule laid down in King v. Hoare and Hemendra Coomar Mullick's case to a type of case which we have before us would work great injustice. When a creditor lends money to several persons on a joint promissory note or when a person enters into a joint contract with several persons, he relies upon the joint credit, the credit of all of them. According to the English rule he has to sue them all in one suit, and when all are residents or subjects of the same State he gets an effective decree against all which he can execute against the property of one and all the Defendant judgment-debtors. In India he can sue one or some without making others parties, but that is his own option. He can sue all or some in one action. If, however, some of the joint promisers be the residents or subjects of one State and the others of another State and if the rule laid down in King v. Hoare and Hemendra Coomar Mullick's case be made applicable to such a case, the promisee would on the breach of that joint contract be compelled to make his election of either proceeding against the first set or the second set of joint promisers. That rule would have the effect of compelling him to have recourse to the security of some of the joint promisers only, when by entering into the contract he intended to have the security of all of them. For the aforesaid consideration also we think that the rule formulated in King v. Hoare and Hemendra Coomar Mullick's case should not apply to such a case. The promisee who has the right to sue on the original cause of action both in the foreign Court and in the domestic Court, may in such a case sue those promisers who are residents or subjects of the foreign State in the foreign Court and so get against them an effective judgment in that Court and may also sue the others who are residents or subjects of British India in a British Indian Court on the original cause of action and so get an effective judgment against them. Any other view would work hardship. In Lukshmishankar v. Vishnuram the learned Judges held that a decree passed in a foreign Court (Court at Baroda) against one person on a joint khata account did not bar a suit in a British Indian Court against his partners, though the liability was joint. Though the reason for the decision given was that the judgment of the Baroda Court was not res judicata in the suit in British India, and not the reasons on which we support our judgment, the result is the same. We accordingly overrule this branch of the argument of the Appellants' Advocate on the first point.

We do not also see any substance in the second point, the point regarding limitation. On the 27th January, 1931, the Company wrote a letter to all the Defendants. By that letter it demanded payment within two months and threatened them with a suit if the demand was not complied with. In reply to this letter Defendant No. 1 wrote a letter to the Company on the 28th January, 1931, (Ex. 27). That letter contains an acknowledgment of liability by him and the suit against him is saved. The Company led uncontradicted evidence that the other Defendants authorised Defendant No. 1 to write that letter on their behalf. The learned Subordinate Judge has discussed that evidence and we do no think it necessary to re-iterate the reasons given by him for holding that Defendant No. 1 was their agent in the matter of acknowledgment of liability. We accept the findings of the learned Subordinate Judge in this respect and hold that the suit is in time against all the Defendants Appellants.

The result is that this appeal fails. It is accordingly dismissed with costs to the Plaintiff Company.

The application for adducing additional evidence is rejected.

P.C