040-NLR-NLR-V-51-KUHAFA-et-al-Appellants-and-VAIRAVAN-CHETTIAR-Respondent.pdf
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Kuhafu v. Vairavan Chettiar
1949Present: Wljeyewardene C.J. and Pulle J.KUHAFA et al., Appellants, and VAIRAVAN CHETTIAR,Respondent
S. C. 273—D. C. Gaik, 8,540
Action on cheque—Several defendant*—Joint and several liability—Judgmentobtained against some defendants—No bar to action against the otherdefendants—Bills of Exchange Ordinance {Cap. 6$), section* 55, 57.
Where parties are jointly and severally liable a oroditor recoveringjudgment against one of them is not precluded thereby from subsequentlyrecovering judgment against the others.
A.PPEAL from a judgment of the District Judge, Galle.
In an action, on a cheque instituted under Chapter 53 of the CivilProcedure Code the plaintiff sued the drawer, the payee and two endorsees.Judgment was At first entered against the 1st and 2nd defendants forfailure to obtain leave to appear and defend within seven days of theservice of summons. Subsequently, after trial, judgment was enteredagainst the 3rd and 4th defendants also. The 3rd and 4th defendantsthereupon appealed on the ground that plaintiff was not entitled to askfor judgment against them, as judgment had already been enteredagainst the 1st and 2nd defendants.
M. H. A. Aziz, for 3rd and 4th defendants appellants.
W. Jayevardene, with L. C. Gunaratne, for plaintiff respondent.
Cur. adv. vult.
WLJEYEWAHDEMK C.J.—Kuhafa t». Yaimtxi/» Chclliar
177
October 31, 1049. Wu eye warden e C.J. -This is an action on a cheque instituted undor Chapter 53 of tho CodeThe cheque was draw n by the first defendant in favour of the seconddefendant. The third and fourth defendants were successive endorseesof the cheque. The fourth defendant endorsed the cheque for valuableconsideration to the plaintiff. Summons was served on the first Midsecond defendants on May 18, and judgment was entered against themon June 24, as they failed to obtain leave to appear and defend theaction within seven days of the service as required by Court. Summonsappears to have been served on the third and fourth defendants in Julyand they obtained leave to appear and defend the action. After trial,the District Judge entered judgment against them also.
The only point argued before us in appeal was that the plaintiff wasnot entitled to ask for judgment against the third and fourth defendants,as judgment had already been entered against the firat and seconddefendants. The appellants' Counsel relied on some decisions of thisCourt where it was held that judgment against one debtor on a jointdebt wan a bar to any further proceedings against the remaining debtors.As Mr. H. W. -Tayewardene pointed out, these decisions are not relevantin the present ease. The defendants in this case are liable jointly andseverally to pay the amount of the cheque (vide Halsbury’s Laws ofEngland, volume 2, paragraph 887). Where the parties are jointlyand severally liable, a creditor recovering judgment against one is notprecluded thereby from recovering judgment against the others (B[ythv. Fladgaie1). This principle which is recognised in section 89 of’onrCivil Procedure Code is stated as follows in Lechmere v. Fletcher 2 :—
“ There are many cases in the books as to joint and several bonds,from which it appears, that, though you have entered judgmenton a joint and several bond against one obligor, you are still atliberty to sue tho other; unless indeed the judgment has beensatisfied; but bo long as any part of the demand remains due,you are at liberty to sue the other notwithstanding you haveobtained judgment against one. This, I think, establishes theprinciple, that where there is a joint obligation, and a separateone also, you do not, by recovering judgment against one,preclude yourself from suing the other1 would dismiss the appeal with costs.
Pult.e J.—
I agree. Under section 55 of the Bills of Exchange Ordinance (Cap. 68)the drawer of a bill and the endorsees thereof incur distinct obligationstowards the holder who is entitled under section 57 to recovor from anyparty liable on tho bill. The entering of judgment against one partywould result in the merger of only the cause of action against that partyand the holder of the bill would still be entitled on the distinct causesof action against the remaining parties to proceed to judgment againstthem.
Appeal dismissed.
' (1MJ) 1 Chancer>j Ml at -iM.* [VM-3) 14'J English Hfporte >4.9 at ,i-U.
I*J. N . A 94570 0/50)