1. The suit is one for contribution. A suit was filed on a promissory note against the plaintiff and the 1st defendant and a decree was passed against them jointly. The whole of the decree amount was collected from the plaintiff, who seeks to recover half of it from the 1st defendant. The latter's defence is that he and the plaintiff were engaged in an illegal partnerships that the money was borrowed for that partnership and that, under the circumstances, a suit for contribution does not lie.
2. It has been repeatedly held in this country, following the old English case of Merryweather v. Nixan (1799) 8 Term Rep. 186 that a suit for contribution between wrong-doers does not lie. In a case from Scotland Palmer v. Wick and Pulteneytown Steam Shipping Company, Ltd. (1894) AC 318 the House of Lords refused to follow that decision, holding that it was not founded on any principle of equity. The Lord Chancellor said in his judgment:
Why, then, should a co-debtor, who has paid the whole sum due. .... when he seeks to recover the share of his co-debtor, be subject more than other co-obligants to the answer that, the entire debt having been discharged, nothing remains due on the judgment, and that 'it can, therefore, no longer be proceeded on? The only answer, as it seems to me, must be that the joint debt resulted from a joint wrong and that the law will not permit or assist any wrongdoer to recover contribution from another. It will be observed, however, that this is to allow the defender to. set up his own wrong by way of answer, for the pursuer makes out a prima facie case by the production of the judgment. He has no need to rely on the joint wrong, or to go behind the judgment.
3. He then went on to remark on Merryweather v. Nixan (1799) 8 Term Rep. 186 that it did not appear to him to be founded on any principle of justice or equity or even of public policy, which justified its extension to the jurisprudence of other countries. It seems strange that a decision so characterised should have been imported into the law of India. Lord Watson took the same view remarking that the merits of the rule were not such as to commend it to universal acceptation. He further observed:
This is not an action brought by one delinquent against whom decree has passed in order to obtain contribution from his co -delinquent who has not been sued. The respondent company do not require to allege and prove either delict or quasi-delict as the foundation of their claim, which rests upon a decree constituting a civil debt against the appellant as well as against themselves. There might be some principle in a Court of law refusing to permit a suitor to aver and prove his own crime or moral delinquency as the medium of recovering from one whom he alleges to have been a co-delinquent. But the case is very different where the injured party's claim of damage is liquidated by a joint and several decree against all the delinquents. In that case--which is the present case--the sum decreed is simply a civil debt.... In this case, it is the appellant who seeks to escape from the natural import of the decree, by going behind it in order to establish his own delinquency.
4. Now that is precisely the position here. The plaintiff produces the decree and proves that he has satisfied it. He is under no necessity to rely on the joint wrong or to go behind the decree. It is the defendant, on the other hand, who seeks to avoid the decree by alleging and proving his own co-delinquency. If any principle of public policy is involved, it is, it seems to me, that a suitor should not be allowed to succeed by setting up his own delinquency. That principle has been laid down in a decision of this Court in V. Kamayya and Anr. v. G. Mamayya (1916) 32 MLJ 484 and I think that it should be applied in this case. The plaintiff can succeed on producing the satisfied decree. There is nothing else that he has to do. The defendant cannot succeed except by alleging and proving his own delinquency and therefore must fail. The suit is decreed with costs throughout.