ARUNACHALAM SERVAI Vs. KNOTTAM BEER VARU ROWTHER

JUDGEMENT

(1.) The point taken and argued with considerable strenuousness by Mr. K.V. Sesha Ayyangar, the learned vakil for the appellant in this second appeal is one of considerable legal interest. The respondent as plaintiff instituted the original suit for levying contribution from the defendant on the ground that both of them having been joint judgment-debtors under a decree, he the plaintiff was compelled to pay for the satisfaction and discharge of that decree the amount claimed in the plaint over and above the amount he was liable to pay as and for his share. The defence raised by the appellant before us was that the debt in respect of which the decree was passed by the Court was really the debt of a partnership in which the plaintiff and the defendant were partners and that therefore, firstly, the plaintiff was not entitled to sue for contribution and could, if at all, have only sued for a taking of the partnership accounts, and secondly, that, even if it should be held that the plaintiff could maintain such a suit, the defendant should have been permitted in equity to require such accounts to be taken and show thereon that the plaintiff would not be entitled to recover the amount claimed because of his being in possession of the funds of She partnership sufficient to make up the amount claimed. With reference to such claim and such pleas thereto it would be proper to make some observations in limine.

(2.) Prima facie, when there is a decree against two persons jointly and severally, each is liable to contribute equally to discharge the decree, and there is always in such cases an implied contract of indemnity that, if one of them should be compelled to pay up more than his share, the other is bound to make good the same. This is, however, on the basis that the obligations of the defendant inter so are determined only by the decree and are not subject to any other rights or obligations. No doubt if it should be established that, having reference to the facts of the particular case, such implied contract as between co-judgment-debtors should be deemed to be displaced, then the legal principle may not be applicable. Thus if, for instance, one of the judgment-debtors should have had the decree passed against him merely because he was the guarantor of the debt which was exclusively payable by the other judgment-debtor as the principal, then it follows that the implied obligation of the principal debtor under the contract of guarantee to keep the guarantor indemnified from any loss or damage would displace or be available to be set off against the other implication of indemnity. Again, if the judgment-debtors inter se should be found to have enjoyed the original consideration for the debt which became merged in the decree in unequal proportions, it follows that it is such proportion that will govern, as between them, their mutual obligations under the decree. Again it was open to the defendant to set up and prove that as a fact that the plaintiff discharged the decree not from his own funds but only from partnership moneys and that therefore the very cause of action for the plaintiff failed. But such a case has not been made by what has been found by the lower appellate Court. In all cases, when what is prima facie shown is only the decree, the liability is on the other party to allege and prove that the obligation either does not subsist altogether or subsists only to a smaller extent than claimed, by reason of other legal rights and obligations inter se. When both the judgment- debtors are partners in a business and the judgment debt is a partnership debt, the discharge of that debt has been held not to give to the partner so paying off a right to levy contribution from his other partner without reference to the partnership accounts, because on the legal principle that under the contract of the partnership each partner is only the agent of the other and the rights of the partners are not with reference to single items of transactions, but to the taking of the entire accounts of the partnership. But such a principle is inapplicable to the case of a debt which is not properly and legally a partnership debt. A partnership debt is a debt of the partnership and not merely a debt which is somehow merely connected with the partnership. A partnership debt has various legal incidents as such and it is only to such debts properly so called that the rule above enunciated can be applicable. In the present case, however, on; the facts it is abundantly clear that the debt which is also a decree debt is not in any real sense of the word a partnership debt. If for the purpose of paying off a debt which is a partnership debt two partners especially after dissolution go and borrow on their own individual credit and raise money sufficient to pay off the partnership debt, it would be a travesty to call the new debt a partnership debt. That is what has been found.

(3.) On that finding it follows that none of the questions raised by the learned vakil for the appellant in this ease really arise. But the matter having been argued before us at considerable length, we may as well briefly refer to some of the aspects of the question. The decision that was strongly relied on by the vakil for the appellant is Damodara Shanbhaga V/s. Subroya Pai [1917] 6 M.L.W. 742. In that case Sadasiva Iyer, J., after a re-" view of the authorities came to the conclusion that where a decree was obtained against two persons who were trading as a firm and one of the partners had to pay up the whole amount, he or his assignee could not maintain an action for contribution against the other partner. On the findings in that case on which the judgment is based, namely, that the decree-debt which was discharged was a partnership debt and that the partnership was still subsisting, it follows that the decision in that case has no application to the facts of the case before us. We are not also concerned to discuss some of the obiter dicta of the learned Judge in the course of his judgment. As observed by the learned Judge himself in that case, we are not prepared to say that even in respect of a partnership debt entirely discharged by one of the partners, whether during the subsistence of the partnership or after dissolution, there may not be special circumstances entitling him to recover contribution from the other partner. But what has been strongly urged by the learned vakil for the appellant before us was not so much that the plaintiff had no right of contribution, but that the plaintiff should not be allowed to levy such contribution without allowing the defendant to have the accounts of the partnership taken for the purpose of finding whether on the whole of the accounts, including the suit item, there was any liability or not on the part of the defendant.