KRISHNA DAS ROY Vs. KALI TARA CHOWDHURANI

JUDGEMENT

(1.) This appeal arises oat of an application for execution of a decree. The appellant brought a suit for arrears of rent against six persons who were the tenants and obtained a decree. It appears that three of them had died before the institution of the suit, and when the decree- holder brought the representatives of the deceased judgment-debtors on the record in the proceedings in execution of the decree, they objected to the execution on the ground that the decree was a nullity having been obtained against persons who were dead, and the Court of first instance gave effect to the contention, and the order of that Court was confirmed by the Court of Appeal below. The decree-holder has appealed to this Court, and it is contended on his behalf that although the decree was not binding upon the heirs of the judgment-debtors who were not living at the date of the suit, the liability of the judgment-debtors is joint and several and that the decree-holder is competent to proceed against such of the judgment- debtors as were not dead at the time of the institution of the suit and that as against them the decree was binding.

(2.) The first question for consideration, therefore, is whether the liability of joint promisors is a joint or a joint and several liability.

(3.) Now Section 43 of the Contract Act lays down that when two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. As pointed out in Hemendro Coomar Mullick v. Rajendrolall Moonshee 3 C. 353 : 1 C.L.R. 488 : 2 Ind. Jur. 758 : 1 Ind. Dec. (N.S.) 812 the section allows the promisee to sue one or more" of several promisors in one suit and so practically prohibits a defendant in such a suit from objecting that his co-contractors ought to have been sued with him. It was decided in that case, following the rule laid down in King v. Hoare (1844) 13 M. & W. 494 at. P. 505 : 14 L.J.Ex. 29 : 8 Jur. 1127 : 2 D & L 382 : 67 R.R. 694 : 153 E.R. 206 that a decree obtained against one of several joint promisors is a bar to a subsequent suit against the others. We are not concerned in this case with that question, upon which there is a difference of opinion, But as pointed out by Strachey, C.J. in Muhammad Ashari v. Radha Ram Singh 22 A. 307 : A.W.N. (1900) 73 : 9 Ind. Dec. (N.S.) 1236 the right of joint debtors to have all the co-contractors joined as defendants in any suit to enforce the joint obligation, which in England before the Judicature Acts could be enforced by means of a plea in abatement and since the Judicature Acts by an application for joinder, has been in India expressly excluded by Section 43 of the Contract Act.