SILUVAIMUTHU MUDALIAR Vs. MUHAMMAD SAHUL

JUDGEMENT

(1.) The Subordinate Judge has found that the defendants 1 to 3 as a firm owed money to Ramaswami Mudaliar and Mahalinga Mudaliar as a firm. Ramaswami Mudaliar and Mahalinga Mudaliar dissolved their partnership and divided between them the outstanding debt due to them from the firm of defendants 1 to 3. After that Ramaswami Mudaliar assigned his share of the debt to plaintiff. Plaintiff, alleging that the whole debt was Rs. 599-12-o, out of which Ramaswami's share was Rs. 449-12-0, sued to recover the latter amount with interest. He presented his plaint without impleading Mahalinga on 6 October, 1922. More than a year later, Mahalinga having died, meanwhile, he added Mahalinga's representative as defendant 4 on 1 December, 1923. By that date, it is admitted, the claim against the firm of defendants 1 to 3 would have been barred by limitation. The Subordinate Judge holding that Mahalinga or his representative was a necessary party and that therefore the suit was not properly instituted until 1 Decejmber, 1923, has found that the suit is barred by limitation. Plaintiff in this petition objects to that finding.

(2.) It appears that, when defendant 4 was added as Mahalinga's representative, he stated that Mahalinga's share of the debt, viz., Rs. 150, had been paid to him. It is urged for plaintiff that in those circumstances he was competent tc.sue alone for the balance] of the debt. The answer to this is that until Mahalinga's representative was brought on record there was no suggestion that the suit was for the whole unpaid balance. Another argument urged for plaintiff by Mr. Ananta Aiyar is that, even if this statement that Mahalinga received payment of his share must be disregarded for the present purpose, under Rule 4 of Order 30, Civil Procedure Code, Ramaswami as surviving partner of his firm, and therefore plaintiff as Ramaswami's assignee, could sue alone for the whole debt and, if plaintiff chooses to sue for part of it only, the result is merely that he must be treated under Rule 2 of Order 2, Civil Procedure Code, as having relinquished the remainder. In regard to this contention, it must be noticed that Mahalinga did not die until after the period of limitation had expired and that apart from that, plaintiff sued as the assignee of part of the debt, not as representing the firm of Ramaswami and Mahalinga. Mr. Ananta Aiyar further contends that Ramaswami and Mahalinga were entitled to split up their claim and each sue separately for his own share. That is against the principle of Section 45 of the Contract Act. And it may be noticed that even in Annapiirnamma V/s. Akkayya (1912) I.L.R. 36 M 544 : 24 M L J 333 (F B) in which the majority of the Full Bench decided that one joint promisee can by himself give a valid discharge of the entire debt, it appears to have been assumed and was stated explicitly by Sankaran Nair, J., that, if a suit is brought to recover a debt due to joint promisees, all of them must be impleaded and the, suit must be for the entire debt. Moreover, when two joint promisees have divided as between themselves their claim to recover the debt due to them jointly, it is obvious that, if the first sues for his share without impleading the second, the debtor cannot be protected from a second suit by the second promisee in which it may be denied that the first promisee is entitled to so much out of the amount of the debt as he has claimed in his suit. In my opinion it is clear that in the present case Mahalinga or his representative was a necessary party to the suit. As the representative was not brought on record until after the period of limitation had expired, the whole suit was barred.

(3.) It is unnecessary to discuss the effect of not bringing defendants 2 and 3 on record in time. This petition is dismissed with costs.