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Bhaskaruni Venkatanarayana Vs. Bhaskaruni Lakshmibayamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad98
AppellantBhaskaruni Venkatanarayana
RespondentBhaskaruni Lakshmibayamma
Cases ReferredAbraham Servai v. Raphial Muthirian
Excerpt:
- - that was distinctly held in putti narayanamurthi v......determined by the terms of the decree ifself, i do not think any one of them is entitled to keep alive a debt for a number of years and then pay it and then ask for contribution. as the district judge rightly observes the plaintiff could not be said to have acted on behalf of the others. in the face of the clear terms of ex. a, i do not think the plaintiff is entitled to keep alive a debt for a number of years, then pay it, and then ask for contribution from the defendant. if the debt had been realized by the promisee from anyone of the parties to the partition decree, no doubt, others would be liable to contribute their share. but here such a contingency has not arisen. the plaintiff renewed the note on 29th august 1915, and he paid the amount only in 1919.3. in the circumstances of.....
Judgment:

Devadoss, J.

1. The plaintiff's suit is for contribution which has been dismissed by both the lower Courts. The plaintiff has preferred this second appeal. The contention of Mr. Raghava Rao is that the renewal of the original por-tend by his client was not the incurring of a new debt as the learned District Judge thinks and, therefore, he is entitled to a decree for contribution. No doubt in the case of joint promisors if one promisor is made to pay the amount, the other promisor is bound to contribute towards such payment and the cause of action does not arise till the amount of the original debt is paid off. The mere renewal of a note is not equivalent to payment. That was distinctly held in Putti Narayanamurthi v. Marimuthu Pillai [1903] 26 Mad. 322 and even though a joint promisor is exonerated on the ground of limitation in the suit brought by the promisee against the promisors, if a decree is obtained against one of them and that promisor pays off the decree he is entitled to contribntion from the other promisor notwithstanding his being exonerated in the suit of the promisee [Vide Abraham Servai Raphial Muthirian (2).] If the defendant is one of the joint promisors as in Abraham Servai v. Raphial Muthirian [1916] 39 Mad. 288 that case would apply to this and the plaintiff would be entitled to a decree, but this case is slightly different from the ease of joint promisors for under the partition decree it was provided:

That in the event of the above debts as per Sch. 3 hereto being realized by the creditors from one or more of the parties jointly held liable, the others jointly liable for them to pay their shares to the persons from whom the said debts have been realized.

2. There is no provision in this for one of the parties to the decree renewing a note or keeping alive the debt for a long time without any reference to the other persons. It is suggested that Kesava Rao whose widow is the defendant, was alive at the time when the por-note was renewed, i. e., 29th August 1915, and he was not asked to pay his quota. Whether Kesava Rao was alive or not, inasmuch as the liability of the parties to the decree has been determined by the terms of the decree ifself, I do not think any one of them is entitled to keep alive a debt for a number of years and then pay it and then ask for contribution. As the District Judge rightly observes the plaintiff could not be said to have acted on behalf of the others. In the face of the clear terms of Ex. A, I do not think the plaintiff is entitled to keep alive a debt for a number of years, then pay it, and then ask for contribution from the defendant. If the debt had been realized by the promisee from anyone of the parties to the partition decree, no doubt, others would be liable to contribute their share. But here such a contingency has not arisen. The plaintiff renewed the note on 29th August 1915, and he paid the amount only in 1919.

3. In the circumstances of this case, the plaintiff is not entitled to a decree against the defendant. The second appeal fails and is dismissed with costs.


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