Report No. 13
67. Section 43.-
The Contract Act treats all contracts as joint and several. The necessary consequence is that it is not open to one promisor who is sued to compel the promisee to sue others. There has, however, been considerable divergence of opinion on the effect of a judgment obtained by the promisee against one out of a number of promisors. In the words of the Federal Court,1 unlike English Law, the Indian Law makes a general liability joint and several, in the absence of an agreement to the contrary. It is, therefore, open to the promisee to sue any one or some of the joint promisors and it is no defence to such a suit that all the promisors should have been made parties. We think that Strachey, C.J., correctly stated the law in Muhammad Askari v. Radhe Ram, 22 All 307 when he said:
"The doctrine now rests not so much on King v. Hoare, 153 ER 206, as on the judgment of the Law Lords in Kendall v. Hamilton, (1879) 4 AC 504. As explained in these judgments the doctrine that there is in the case of a joint contract a single cause of action which can only be once sued on is essentially based on the right of joint debtors in England to have all their contractors joined as defendants in any suit to enforce the joint obligation. The right was in England enforceable before the Judicature Act by means of a plea in abatement, and since the Judicature Acts by an application for joinder which is determined on the same principles as those on which the plea in abatement would formerly have been dealt with.
In India that right of joint debtors has been expressly excluded by section 43 of the Contract Act, and, therefore, the basis of the doctrine being absent, the doctrine itself is inapplicable. Cessante ratione legis, cessat ipsa lex."1 The result is that a decree obtained against some of several joint promisors remaining unsatisfied ought not to be held as a bar to a subsequent action against the other promisors. We recommend that this result may be incorporated in the Act by inserting a new section.2
1. 22 All 307 (311,312).
2. Vide section 44A, App I.
In this connection, we suggest that while revising the Code of Civil Procedure it should be considered if it is necessary to introduce a specific provision making it clear whether a joint promisor can, when sued for contribution by his co-promisor, resist the suit on the ground that in the creditor's suit (to which the joint promisor was not a party) the co-promisor (suing for contribution) did not negligently or otherwise, set up defences which could have been legitimately raised to defeat the claim.
68. Sections 45-48.- No change is considered necessary in sections 45 to 48.
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