Krishnaswami Aiyar, J.
1. The plaintiff is the Receiver of the Tanjore palace estate. Ramu Iyengar and Srinivasaragava Iyengar executed muchilikas each for a separate moiety of certain lands in favour of the previous receiver promising to pay rent. The 1st and 2nd defendants purchased the interests of the said two persons in respect of each moiety under a separate sale-deed executed by each. The present suit is instituted for the recovery of rent for 6 Faslis from 1310 to 1315. The District Munsif dismissed the suit. The Subordinate Judge on appeal has passed a decree for a moiety of rent due for Fasli 1311, holding the claim as regards Faslis 1310 and 1311 in relation to the share which had belonged originally to Srinivasaragava Iyengar and likewise the claim for rent up to the 15th of December 1901, as regards the moiety that was originally owned by Ramu Iyengar barred under Section 43 of the Civil Procedure Code, Act XIV of 1882. The plaintiff had instituted two Small Cause Suits Nos. 15 of 1902 and 598 of 1903 in respect of each moiety against the first defendant and recovered judgment. At the time of the institution of Small Cause Suit No. 598 of 1903, the claim for rent for Faslis 1310 and 1311, as to Srinivasaragava Iyengar's moiety has accrued but was not included in the suit. At the time of the institution of Small Cause Suit No. 15 of 1902, the claim for rent up to the 15th December 1901 as to Ramu Iyengar's moiety has also accrued, but was omitted to be included in the suit. There can be no doubt that under Section 43 of the Civil Procedure Code, the liability of the first defendant for the rent omitted to be claimed in the former suits must be deemed to be at an end, for, that section provides that the plaintiff shall not afterwards sue in respect of the portion omitted. The decree, therefore, as against the first defendant is right. But the question is raised that the second defendant ought to have been made liable for the rent of Faslis 1310 and 1311 in respect of both the moieties. It is true that Section 43 of the Civil Procedure Code does not bar the claim against the second defendant. It was assumed in the argument addressed to us on both sides that the 2nd defendant was a member of the joint family along with the first defendant and liable with him to pay the rent. It was, however, argued firstly that the rule in King v. Hoare (1844) 13 M.& W. 494. according to which a joint promissor is not liable in a subsequent suit when judgment had been previously recovered against the co-promissor is not applicable to the mofussil in India, secondly that even if it is the liability of the first and second defendants was joint and several and, therefore, the rule itself had no bearing thereby. That the Small Cause Suits not having any reference to the rents of the Faslis 1310 and 1311, the cause of action for those rents had not merged into the judgment so as to operate as a bar to the present suit against the second defendant. As regards the first and second contentions, the agreement is based on Section 43 of the Indian Contract Act, IX of 1872, which makes the liability of joint promissors joint and several. Although an action upon a joint promise against one only of the joint promissors was met by a plea in abatement before the Judicature Acts and that plea has been abolished by Order XXI, Rule 20, the rule of non-liability of the joint promissor in the second suit is still retained as a rule of substantive law and not as a rule as procedure. See Kendall v. Hamilton (1877) 4 A.C. 504 In re Hodgson Becket v. Ramsdale (1886) 31 Ch. D. 177, Hammond v. Schofield (1891) 60 L.J.Q.B. 539 : 1 Q.B. 453, Hooare v. Niblett (1891) 1 Q.B. 781. But it is clear law in England that the foundation of the, rule is that the liability of the joint promissor is joint and that the cause of action which is one and indivisible transit in Bern judicature and is, therefore, not available for a subsequent suit against a co-promissor. The question arises whether Section 43 of the Indian Contract Act lays down a mere rule of Procedure or makes the liability of each co-promissor joint and several. Sir Frederick Pollock observes in his notes to Section 43 of the Indian Contract Act, as far as the liability under a contract is concerned, it appears to make all joint contracts joint and several. See Pollock and Mulla on the Indian Contract Act, 1905, p. 185. And after referring to the difference of opinion among the Indian High Courts as to the effect of the judgment against one of the joint promissors as regards the other he adds: 'We think it the better opinion that the enactment should be carried out to its natural consequences and that notwithstanding the English authorities founded on a different substantive rule, such a judgment remaining unsatisfied ought not in British India to be held a bar to a subsequent action against the other promissor or promissors' (p. 186) Muhammad Askari v. Radhe Ram Singh 22 A.k 307, upon a full revision of all the Indian cases, Chief Justice Strachey and Banerji, J., have taken the same view. Also Section 44 of the Indian Contract Act departing from the English Law lays down an analogous principle that the release of a joint-debtor does not operate as a discharge of the co-promissors. It must, however, be admitted as pointed out by Strachey, C.J., himself, in Muhammad Askari v. Radhe Ram Singh 22 A.k 307 that the contrary opinion was expressed in many cases and often assumed in others. So far as this Presidency is concerned we may refer to the following cases. Gurusami v. Chinnamannar and Gurusami Chetti v. Sadasiva Cheiti 5 M.k 37, Chockalinga Mudali v. Subbaraya Mudali 5 M. k133, Umamakheswara v. Singaperumal 8 M.k 376, Narayana Chetty v. Lakshmana Chetty 21 M.k 256 and Chinnappa Rowthen v. Robert Fischer 30 M.k 495 : 17 M.L.J. 411. The first of these cases came up from the Original side of the Court to which rules of the English law were deemed applicable. The second case was a decision with reference to the mofussil but has itself been overruled in Ramakrishna v. Namasivaya 7 M.k 225, on the ground that the liability of the sons was not joint with that of the father under the Hindu law but several. The other cases simply refer to the rule in King v. Hoare (1844) 13 M.& W. 494 with apparent assent and do not involve the decision of the question whether it applies to the mofussil in India in the face of Section 43 of the Indian Contract Act. It must also be pointed out that Mr. Justice Muthusami Iyer gave his assent to the applicability of the rule. In a hesitating manner see Gurusami v. Chinnamannar and Gurusami v. Sadasiva 5 M.k 37 and that Mr. Justice Markby in Himendra Coomar Mullick v. Ragen Lall Moonshee 3 C.j 353, which was followed in Gurusami v. Chinnamannar and Gurusami v. Sadasiva 5 M. k37 expressed himself in somewhat doubtful language as regards the extension of King v. Hoare (1844) 13 M.& W. 494 to India. The rule itself has been modified in England to some extent by the Statute 19 and 20, Vict. Ch. 97, which enacts that a creditor shall not be barred in a subsequent suit against certain of the joint promissors, who were beyond the seas at the time of the former suit against the co-promissor; see Hukamchand's Civil Procedure Code, p. 554. Against a plaintiff who obtains judgment in default of appearance against one of two joint defendants does not abandon his right to proceed to judgment against the other defendant Meheod v. Power (1898) 2 Ch. 295 It was also pointed out by Mr. Justice Muthusami Iyer and by Mr. Justice Markby in the case already referred to that a rule similar to that in King v. Hoare (1844) 13 M.& W. 494 which obtained originally under the Roman Law was afterwards abolished. See Sandar's Institutes of Justinian XI Edition p. 338. Says Hunter in his Roman Law II Edition p. 560. The liability of a correal or joint obligation to be extinguished by litis contestatio, is like acceptilation an incident of Stipulatio, and not correality. Even in the case of Stipulatio, the contract might be so framed as to avoid that inconvenient result. Finally Justinian enacted that even in the case of Stipulatio abtis contestatio should have no effect upon the objection, see also p. 562 Hunter's Roman Law II Edition. It is true there is a general consensus of opinion in favour of the rule in King v. Hoare (1844) 13 M.& W. 494 in the States of America. But the various devices adopted by means of special statutes and otherwise to relax the severity of the rule, are a clear indication of the inconvenience felt in a strict adherence to it. See Black on Judgment Sections 770 to 772. Although, therefore, there is much to be said against the extension of the rule in King v. Hoare (1844) 13 M.& W. 494 to India, I do not feel justified in rejecting it without a reference to the Full Bench. And it is not necessary to express a final opinion on the question in this case. It was argued that the rents for Faslis 1310 and 1311 were not the subject of the former action and, therefore, the cause of action with respect to them had not merged into the judgments in the Small Cause suits so as to open the door for the rule in King v. Hoare (1844) 13 M.& W. 494 This involves the consideration of the question of the foundation of that rule. Baron Parke in King v. Hoare (1844) 13 M.& W. 494 and the majority of Lords in Kendall v. Hamilton (1877) 4 A.C. 504 stated it to be the merger of the cause of action in the judgment. There can be no such merger where the rents had not been sued for at all. Although under Section 43 of the Civil Procedure Code, a subsequent suit against the same defendant is barred for rents which had accrued due it is by the force of a special rule that relief not claimed in respect of a cause of action shall not be claimed in a subsequent action and not on the principle of merger in a judgment recovered. Section 43 of the Civil Procedure Code operates to bar the second suit even where the first was dismissed and not decreed for its applicability depends upon the frame of the suit instituted and not upon the result. See Hukam Chand's Civil Procedure Code page 551 and the observation of Sheppard J. in Ittappan v. Manavikrama 21 M. k153. It seems, therefore, to follow there being no merger of the claim of the rents of Faslis 1310 and 1311 in the judgment in the Small Cause suits and the bar under Section 43 of the Civil Procedure Code only applying to the present claim against the first defendant it is not open to exception. In modification of the decree of the lower appellate Court I would direct the second ' defendant to pay to the plaintiff the sum of Rs. 314-1-6 being the amount claimed for Faslis 1310 and 1311 with further interest at 6 per cent, per annum from the date of this decree.
2. I concur in the consideration of my learned brother and in the modification of the Sub-Judge's decree which he proposes.