MAARTENSZ S.PJ.—Alanoor Bhai v. Edwin.07
3938Present: Maartensz S.P.J.
ALANOOR BHAI v. EDWIN.
62—C. R. Kurunegala, 10,377.
Public Servants’ (Liabilities) Ordinance, No. 2 of 1899, ss. 4 and 6—Promissorynote by two persons—One a public servant—Note'not void against theother.
A joint promissory note by two persons, one of whom is a public servant,is not void against the other.
PPEAL from a judgment of the Commissioner of Requests,Kurunegala.
This was an action on a joint promissory note made by two persons ofwhom the first defendant was a public servant. The defendants pleadedthe benefit of the Public Servants’ (Liabilities) Ordinance; No. 2 of 1899,and the plaintiff’s action was dismissed on the ground that the note wasvoid. The plaintiff appealed against this order in so far as it affectedthe second defendant and made only her a respondent to the appeal.
W. Fernando (with him A. E. R. Corea), for plaintiff, appellant.—The benefit of the Public Servants’ (Liabilities) Ordinance can be invokedonly by a public servant. Section 4 makes the note void only as againsthim. Narayan Cketty v. Silva1 is an authority for the proposition thatthe note was rendered void and of no effect as against a public servant.The object of the Ordinance is to protect public servants.
N. E. Weerasooria, K.C. (with him Stanley de Zoysa), for second defend-ant, respondent.—Section 4 of the Public Servants’ (Liabilities) Ordinancerenders the promissory note and also all proceedings void. SamsudeenBhai v. Gunawardene'. Also Parangodun 'v. Raman ’. The document isabsolutely void and no action is maintainable on it. The note cannot bevoid as against one and valid as against the other. Further, the appealshould be against both defendants, as the action is on a joint note.Dismissal against one enures to the benefit of the other. (Pirie v.Richardson'.) Judgment against one of two joint debtors is a bar to anaction against the other. (Suppraya Reddiar v. Mohamed and another'.)The rights on the note are merged in the judgment which affects bothdefendants. There is only'one cause of action, and the dismissal of theaction as against one defendant extinguishes the liability of the othertoo. It is not material .whether the election to sue' one and not theother is voluntary or not. The rule applies equally in the one case asin the other, that on the discharge of one of the joint debtors, the otheris also discharged.
Cur. adv. vult.
August 4, 1938. Maartensz S.P.J.— .
This is an action for the recovery of the balance amount due on a jointnote made-by the defendants in favour of the plaintiff.
The defendants who are husband and wife set up various defences butthe only one which appears to have been pressed at the trial was that
1 35 N. L. ft. 210.-316 Law Rec. 74
2 37.N. L. R. 367; 14 Law Rec. 196.* (1927) 1 K. B. 44H
*17 Law Rec. 136; 10 C. L. W 41
MAARTENSZ S.P.J.—Alanoor Bhai v. Edwin.
“ the first defendant having been a public servant at the date of executionof the promissory note in suit the said promissory note and these proceed-ings are void in law and the plaintiff is not entitled to have and maintainthis action”. The first defendant was admittedly a public servant.
The learned Commissioner upheld this defence and dismissed the actionagainst both defendants.
The plaintiff appeals from the dismissal of the action against the seconddefendant.
The defence put forward by. the defendants is based on the provisions ofsection 4 of the Public Servants’ (Liabilities) Ordinance, 1899. TheOrdinance enacts that no action shall be maintained against a publicservant upon, inter alia, any promissory note made by him; and therelevant portion of the section 4 reads as follows:—“ All proceedings anddocuments in or incidental to an action in contravention of this Ordinanceshall be void”.
I am not prepared to dissent from the decision in the case of NarayanChetty v. Silva1, that the promissory note sued on is a document of thedescription referred to in section 4.
The question for decision therefore is whether the second defendantwho is not a . public servant can plead the provisions of section 4 of theOrdinance. This question is not covered by authority and must bedetermined by first impression. The section, it is true, is expressed invery general terms; but I am of opinion that these terms are restricted-by the purpose for which the Ordinance was enacted.
It was enacted, according to the.preamble, “To protect public servantsfrom legal proceedings in respect of certain liabilities ”, and I cannotconceive that the Legislature ever intended that persons who were hot., public servants should be protected by any of the provisions of theOrdinance. I accordingly hold that the promissory note sued on is notvoid as against the second defendant.
Another plea was raised in appeal, namely, that the note sued on beinga joint note, the plaintiff’s appeal cannot succeed as he has not .appealedagainst the dismissal of his action against the first defendant. I do notthink the plea can be referred to any principle of law. The case ofReddiar v. Mohamed”, where it was decided that if judgment is takenagainst one of the makers of a joint note, judgment could not be enteredagainst the other or others, has no application; nor has the case of Piriev. Richardson ”, where it was held that “ a successful defence by one jointcontractor, which is common to the whole contract, enures for the benefitof the others whether they have pleaded it or not ”; for the successfuldefence of the first defendant is not one which is common to the wholecontract, but to himself personally.
I am accordingly of opinion that this plea also fails. I set .aside somuch of the decree as directs a dismissal of plaintiff’s action against thesecond defendant and enter judgment for plaintiff against the seconddefendant as prayed for with costs in both Courts.
* 11 Law Bee. 13C; 10 C. L. IK. 4t.
» (1933) 35 N. L. R. 210.
ALANOOR BHAI v. EDWIN