PTTLLE, J.—Dias v. Eastern Hardware Stores, Ltd.
1955Present: Pulle, J., and H. N. G. Fernando, J.DIAS, AppeUant, and EASTERN HARDWARE STORES LTD.,
S. C. 185—D. G. Colombo, 14,496/S
Promissory note—iJoint debt—Judgment entered against one debtor—Does it alwaysexhaust cause of action against the co-debtors?
Where, in an action for the recovery of a sum of money due on a joint pro-missory note given by two defendants, judgment is entered in favour of theplaintiff in oonsequence of the default of both the defendants in appearing,subsequent vacation of the decree against the first defendant does not entitlehim to contend that the plaintiff cannot maintain the action against him onthe ground that on a joint liability incurred by him and the second defendanta decree has already been entered against the latter. In such a case, a judgmentagainst one joint debtor does not so exhaust the cause of action as to debarfurther proceedings against his oo-debtor.
-t XPPEAL from a judgment of the District Court, Colombo.
Walter Jayawardene, with K. Viknarajah, for the 1st defendant-appellant.
H. V. Perera, Q.C., with S. Subramaniam, for the plaintiff-respondent
Cur. adv. vult.
July 27, 1955. Pitllb, J.—
The appellant in this case is the 1st defendant in an action institutedunder Chapter LIII of the Civil Procedure Code against her and the 2nddefendant for the recovery of a sum of Rs. 11,153 • 60 and interest alleged
PULLE, J.—Dias v. Eastern Hardware Stores, Ltd.
to be due on a joint promissory note. The prayer in the plaint asked forjudgment against the two defendants jointly and not jointly and severally.The question we have to decide is whether the circumstances in which adecree entered against the appellant was vacated resulted in the plaintiffsbeing debarred from further prosecuting their claim against her, inasmuchas there was of record an unvacated judgment against the joint debtor,the 2nd defendant.
The defendants failed to appear within the time prescribed in thesummonses and on the 22nd April, 1953, the proctor for the plaintiffsmoved to enter judgment against them and the court made the order,
“ Judgment for plaintiff as prayed for with costs. ”
The formal decree entered upon the same day, however, orderedthe defendants to pay the sum due “ jointly and severally ”.
On the 25th April, 1953, the appellant moved by petition and affidavitto have the decree entered against her vacated on the ground that thesummons and the copy of the plaint served on her were not in the Sinha-lese language. The court on the 6th July, 1953, held that the service ofsummons was irregular, vacated the decree entered against her andordered fresh summons. On the fresh summons being served she ap-peared and moved to defend the action unconditionally. Of the groundsurged one was that the plaintiff could not maintain the action against herbecause on a joint liability incurred by her and the 2nd defendant a decreehad already been entered against the latter. Pending an inquiry into herapplication the plaintiffs on the 9th February, 1954, moved to have thedecree against the 2nd defendant vacated because the one of 22nd April,1953, had been entered per incuriam and because the decree against theappellant had been vacated. The learned District Judge granted theplaintiff’s application and ordered the appellant to provide security in asum of Rs. 5,000 as a condition of filing answer. The present appeal isfrom this order.
The authorities which lay down the principles underlying the rulethat a judgment against one of two joint debtors discharges the secondare reviewed in the judgments of Abrahams, C.J., and Poyser, J., inSuppaiya Reddiar v. Mohamed et al. x. The position is explained byBowen, L.J., in In re Hodgson, Backett v. Ramsdale 2 as follows :
“ There is in the cases of joint contract and joint debt as distinguishedfrom the cases of joint and several contract and joint and several debt,only one cause of action. The party injured may sue at law all the jointcontractors or he may sue one, subject in the latter case to the right of thesingle defendant to plead in abatement; but whether an action in thecase of a joint debt is brought against one debtor or against all thedebtors, or continued against one debtor or all the debtors, it is for thesame cause of action—there is only one cause of action. This rule thoughthe advantage or disadvantage of it may have been questioned in timeslong past, has now passed into the law of this country. I should only
(1886) 31 Ch. D. 177 at 188.
(1937) 39 N. L. R. 4o9.
PULLE, J.—Dias v. Eastern Hardware Stores, Ltd.
wish to observe that whether or no the rule by the right of pure reasonand unassisted by authority might or might not have recommendeditself to modem minds, the rule is by no means a technical rule. It isbased, right or wrongly, on the idea that a joint debtor has a right todemand, if he pleases, that he shall be sued at one and the same timewith all his co-debtors. To enforce this right he is only entitled to pleadin abatement, but the right is one of considerable business value, and is sorecognised by the law. In order to protect each of the joint debtors, thelaw treats the cause of action as being a joint one, and as capable of beingmerged whenever it is pursued to a judgment. It is absorbed and mergedin the judgment which is recovered against one of the debtors not onlyas against him but as against all the rest, and the object is to prevent theprejudice which the law conceives might arise to a joint debtor who isnot being sued, if he were left with future litigation still hanging over hishead. All his liability is merged therefore in the judgment,—the olddebt disappears and the judgment is left in its place. ”
It has to be borne in mind in this case that the plaintiffs did not movefor and obtain judgment only as against the 2nd defendant. Had theydone so they would have been faced with the defence of the appellant thattheir cause of action against her had already merged in the judgmentagainst the 2nd defendant. On the basis that they were entitled to adecree ordering both defendants to pay jointly the amount due, theymoved for judgment on the 2nd April, 1953. It has been conceded thatthe decree actually entered was erroneous and the legal effect of vacatingit as against the appellant must be considered on the footing that a properdecree, not joint and several but only a joint one, was drawn up. Theargument that upon the decree against the appellant being vacated therewas left no cause of action against her presupposes that the joint decreecould still survive. I agree with the learned Additional District Judgewhen he says that in the case of a joint decree there is only one decreeagainst all the defendants, so that when such decree is vacated at theinstance of any one defendant there would be no decree subsisting againstthe other defendant. A joint decree being one is indivisible. It cannotsurvive in part.
It has been freely recognized that the rule that a judgment againstone joint debtor so exhausts the cause of action as to debar furtherproceedings against his co-debtor can work injustice in many cases. Ido not think that this rule should be extended beyond the limits withinwhich it has been applied. The plaintiffs at no time took up any otherposition than that they wanted a single decree against both defendantsand they should not be deprived of this opportunity solely for the reasonthat the appellant succeeded in showing that there was a defect in theservice of summons on her in the first instance.
In my opinion the appeal fails and should be dismissed with costs.
H. N. G. Fernando, J.—I agree.
DIAS, Appellant, and EASTERN HARDWARE STORES LTD., Responent