S P ABRAHAM SERVAI Vs. RAPHIAL MUTHIRIAN

JUDGEMENT

(1.) The plaintiff and the defendant in this case were joint executants of a promissory note. It is common ground that each received part of the sum borrowed and the correctness of the Lower Court s, finding as to its division between them and the amount repaid by each cannot be disputed. They were however sued by their creditor for the balance due; and a decree was passed against the plaintiff for the whole, the defendant being exonerated on his plea of limitation. The plaintiff satisfied the decree and sues the defendant for contribution. The Lower Court held that, notwithstanding the defendant s exoneration, it was equitable that his should contribute towards the discharge of the common debt. This Civil Revision Petition has been argued against that decision. It has been referred to a Bench by a learned Judge sitting in the Admission Court.

(2.) As pointed out by the learned Judge, the facts in Ramayya v. Veerapurani Venkatappiah (1910) M.W.N. 889 on which the Lower Court relied, differed materially from those now in question, because in it there was no decision on limitation or any other ground, such as there is here, against any of the defendants, and some had not been sued by the creditor. The principle there recognised is merely that liability for contribution between co-contractors is enforceable, although the suit to enforce it is brought after a suit on the original liability would be barred. Here the point is that the original liability was held unenforceable against the defendant not only before the present suit was brought, but also before the plaintiff was, held liable or made any payment.

(3.) The argument, apart from authority, has been presented as follows. The defendant has been exonerated; and the debt must have been kept alive against the plaintiff by some act on his part, for which it is not suggested that the defendant is responsible. Whether the plaintiff is regarded as the defendant s joint contractor, or as he contends that he should be, as his surety in respect of the amount which he has had to pay on the defendant s behalf, is immaterial, because he could not affect the defendant s position in either capacity. The debt having been held unrecoverable from the defendant directly, it is unjust that it should be recovered from him indirectly in consequence of the plaintiff s conduct, which he did not authorise. This treats the defendant s liability as originating in or at least as depending on the fact that a decree preceded the plaintiff s payment. But on the other side it is contended that it should be placed on a broader basis with reference to an earlier stage in the transaction, the separate contract between the parties, when the debt was incurred, to indemnify each other for any excess payment made by one for the other, which was independent of the creditor s suit and its result. We have to decide which of these views is correct.