KANNAYYA REDDI Vs. MUTHU REDDI

JUDGEMENT

(1.) THE point raised in this petition is whether the claim of the plaintiff, who is the petitioner in this Court, for contribution is not maintainable. This objection to the claim was not made in the trial Court which passed the decree in favour of the plaintiff; it was only in the lower appellate Court that for the first time it was contended that on the admission of the plaintiff in his evidence that the debt in respect of which a decree had been passed against the plaintiff and the defendant had been borrowed by himself and the defendant for the purpose of a partnership trade carried on by them, the claim for contribution was not maintainable. It is not possible to say that the admissions of the plaintiff clearly show that the borrowing itself was a partnership transaction. It is one thing to say that money was borrowed as it Was required for the partnership trade by both the partners, the borrowing itself not being a partnership transaction though the partners borrow it in order to advance it to the partnership as capital, and it is quite another thing to say that the borrowing itself was by the partnership. In any case the "present claim is not based on the ground that as a partner the defendant is liable to contribute. THE basis of the claim is a joint decree made against the plaintiff and the defendant in execution of which the plaintiff alone had to pay the entire amount due under the decree. In such a case the law of partnership does not prohibit the entertainment of a claim for contribution. It is only when the claim for: contribution is based on the contract of partnership or intimately bound up with the relation of partnership that it would be excluded by the general doctrine that as between partners there can be no claim for contribution. I have had occasion already to consider the question and I have expressed my opinion that in cases of this kind where the claim for contribution is based on the payment by the plaintiff in its entirety of a joint decree debt due by him and by the defendant, the claim for contribution cannot be defeated even if the original debt in respect of which the, decree was passed was a partnership debt. THE advocate for the petitioner has relied on two cases, namely, those reported in Subbarayudu V/s. Adinarayudu (1894) I.L.R. 18 Mad. 134 and Ellappa Mudaliar v. Swaminatha Mudaliar (1933) 38 L.W. 316. THE latter case was one in which the decree had been obtained by a stranger in respect of a partnership debt and the plaintiff alone had to pay up the whole of the decree amount and it was held that the plaintiff was entitled to recover contribution. THE decree of the lower appellate Court therefore is not in accordance with law and must be set aside. It is accordingly set aside and the decree of the trial Court is restored. THE petitioner, who is the plaintiff in the suit, will be entitled to his costs in this and in the lower appellate Court.