TIRUMALAI SAVURI NAICKER Vs. ROYAR ALIAS KACHIRAYA THEVAR

JUDGEMENT

(1.) Section 69 of Indian Contract Act, in my opinion, applies to the case of a surety who pays a decree debt which other persons besides the judgment debtor for whose appearance he made himself liable, were bound by law to pay.

(2.) I consider that the surety is not the less interested in the payment of the money (i.e. the decree debt) because the decree holder could legally compel him to pay the debt of the principal debtor. Even if the other judgment debtors are not to be regarded as principal debtors by a strict interpretation of the words of Section 126 (in which case Section 140 would apply to the case) the surety's liability is not co-extensive who that of the other judgment debtors because he is invested by Section 140 with a right they do not possess, namely, all the rights which the creditor had against the principal debtor, where as the judgment debtors have inter se only the inferior right of contribution, that is, a right to recover a pro-portionate amount of the joint debt from a co-debtor. It was held in Jagapati Raju V/s. Sadrusannama Ared (1915) I.L.R. 39 Mad 795 that a right of contribution did not come within Section 69 of the Indian Contract Act.

(3.) A surety's right stands on a higher footing than a right for contribution.