Crowe, J.:— The preliminary issues raised in this suit are —
(1) Whether the judgment recorded against first defendant in this suit on 29th January, 1901, is not a bar to further proceedings against second defendant.
(2) Whether the suit should not be dismissed against the second defendant with costs;
This is a suit against Marathi merchants for the price of certain iron sola and delivered to the defendants jointly, who are alleged to have traded in partnership. On the 29th January, 1901, the defendants appeared and the first defendant admitted the claim. The second defendant applied for an adjournment, which was granted on certain terms and judgment was passed against the first defendant. It is now contended on behalf of the second defendant that it being a joint cause of action, the debt has become merged in the judgment according to the maxim transient in rem juaicatam and that the rule laid down in King v. Hoare and enunciated more clearly in the House of Lords'case Kendall v. Hamilton) and followed in number of subsequent cases applies to the present case. I he judgment in Kendall v. Hamilton is a most instructive one on the point, not only because of the high authority from which it proceeded, but from the fact that the subject was treated in lengthy judgments by six of the Judges who heard the appeal, and that one Judge, Lord Penzance, dissented from the opinion of the majority.
It has been contended that their Lordships' ruling has been consistently followed in a number of Indian cases, among the most important of which are Hemendro Coomar v. Rajendro Lall Gurmami v. Samurti Chinm Lukmidas Khimji v. Punhotam; and that the case of McLeod v. Power is exactly on all fours with the present case. In the Calcutta case, Markby, J., remarked, after holding that the doctrine laid down in King v. Hoare was binding on the Courts in India: “If I am at liberty to enter upon the general question of convenience, I should hesitate much before applying to this country without any qualification the rule laid down in King v. Hoare.”
It has been contended by Mr. Lowndes for the plaintiff, first, that the rule in King v. Hoare is a rule of procedure (and for that proposition he relies on the judgment of Lord Penzance and Lord O'Hagan in the case of Kendall v. Hamilton above referred to), and that being so the provisions of section 153, Civil Procedure Code, apply to the case and that the law as laid down in the Civil Procedure Code must be observed here in India. Secondly, he has argued that the rule in King v. Hoare was founded on the principle that a contract by a partnership in England was a joint contract, and not a joint and several contract—that in India since the passing of the Contract Act, 1872, the effect of section 43 of that Act is to convert such a joint contract into a joint and several one, and he relies further on the judgment of Strachey, C.J, in Muhammad Askari v. Radhe Ram Singh Their Lordships there held that the effect of section 43 of the Indian Contract Act, 1872, being to “exclude the right of a joint contractor to be sued along with his co-contractors, the rule laid down in King v. Hoare and Kendall v. Hamilton is no longer applicable to cases arising in India (at all events in the mofussil) since the passing of the Act, and that a judgment, obtained against some only of the joint contractors and remaining unsatisfied, is no bar to a second suit on the contract against the other joint contractors. He further relies on the obiter dictum of the late Farran, O.J, in Motilal v. Ghellabhai who held in reference to section 43 of the Contract Act that “as far as the liability under a contract is concerned, it appears to make all joint contracts joint and several.”
Now it is necessary to ascertain, as far as possible, the grounds on which the rule in King v. Hoare was arrived at. In Kendall v. Hamilton the reason for the rule was stated by Earl Cairns, L.C, to be (page 515) “the right of persons jointly liable to pay a debt to insist on being sued together.” So also Lord Hatherley observed (page 522)—“Each of the co-contractors has a right to be sued and to have the matter settled at once, instead of its being settled piecemeal.” So also in In re Hodgson Lord Bowen in considering the question, what was actually decided in King v. Hoare and Kendall v. Hamilton, explained the grounds of the rule as follows (page 188):—“It is based, rightly or wrongly, on the idea that a joint-debtor has a right to demand, if he pleases, that he shall be sued at one and the same time with all his co-debtors. To enforce this right, he is only entitled to plead in abatement, but the right is one of considerable business value, and is so recognised by the law.”
Now that being, by the clearly expressed opinion of one of the authorities, the basis of the doctrine, and in the present case the plaintiff having conformed to the view of the law on which the rule is based, and having brought his suit against both the joint co-contractors in one suit, the question arises, whether I am justified in extending the basis of the rule. Mr. Inverarity, who appeared for the defendants, says that I am, and he grounds his contention on the judgment of Byrne, J., in the case of McLeod v. Power There one joint-debtor had consented to judgment and It was held that the rule in King v. Hoare applied, where both joiat-debtors were originally made defendants to and had entered appearance in the same action and judgment by consent had been obtained against one of them in that action. There can be no doubt that the decision in that case has extended the operation of the rule Proceedings had been already taken against the other defendant in the same action. In Weall v. James it was held that where joint contractors were sued and one only obtained leave to defend, the other submitting to judgment, the plaintiff could go on with the action against the former, effect being given to order xiv. rule 5. With the exception of these two cases, in all the cases cited both from the English and Indian authorities, a second action had been brought. Byrne, J., apparently bases his judgment on the fact that there is nothing in the rules which will enable him to draw a distinction between the case of separate actions being brought against the joint contractors and one single action being brought against them, and he treats the question as one of procedure; remarking that the rules do provide two oases for, what he terms, the non-observance of the rule. Those cases are where one of the co-defendants only had leave to defend and where plaintiff has obtained judgment by reason of default on the part of one of the defendants If, therefore, I felt inclined to follow the authority of McLeod v. Power, I should have to follow it consistently throughout, and should apply the provisions of section 153 of the Civil Procedure Code, by which we are governed in India, which lays down as a matter of procedure that where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or fact, the Court may at once pronounce judgment for or against such defendant, and the suit shall proceed only against the other defendants. Mr. Justice Byrne referred to the possibility of its being a casus omissus in the English rule of procedure which it might be necessary to remedy hereafter, but in India fortunately the Legislature has not left the point unprovided for.
I prefer, however, to base my judgment in this case on the ground that the rule in King v. Hoare strictly construed does not cover the facts of the present case. The principle that judgment recovered against a joint-debtor is a bar to a further action to be prosecuted against another joint-debtor does not, in my opinion, bar the prosecution of an action already commenced against the co-debtors jointly against the second of such joint debtors from the fact that one joint-debtor has admitted judgment.
With regard to the argument based on the provisions of section 43 of the Contract Act, it seems to me that that section merely takes away the right of a joint-debtor to be sued jointly and to plead in abatement a right which was abolished in England by the Judicature Acts It is still open to a defendant to apply to the Court for joinder of a person who ought to have been included in the action and, to use the words of Earl Cairns, L.C, in Kendall v. Hamilton, “the application to have a person so omitted included as a defendant ought to be granted or refused on the same principles on which a plea in abatement would have succeeded or failed” Section 32 of the Civil Procedure Code gives the Court absolute discretion, either on application or suc motu, to dismiss or add parties.
It is not necessary to consider the question raised in the third portion of Mr. Lowndes' argument, whether the Court, as suggested by Blackburn, J. in Munster v. Cox would be justified in setting aside all proceedings after appearance in order to nullify the operation of the judgment against one defendant as a defence. But looking to the circumstances of this case I may say that if the necessity had arisen, I should have been tempted it such were possible to consider any application directed to that end.
For these reasons I hold that the judgment recorded against the first defendant in this suit on the 29th January, 1901, is not a bar to further proceedings in this suit against the second defendant, and that the suit should not be dismissed against the second defendant with costs. Costs of this preliminary issue to be borne by defendant 2.
Attorneys for plaintiffs:— Messrs, Little & Co.
Attorneys for defendants:— Messrs. Virji and Madhavji.