The judgment established the principle that the liability of joint promissors is joint and several, and analyzed the effect of judgment against one joint promissor on a subsequent suit against the co-promissor, as well as the bar under Section 43 of the Civil Procedure Code.

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 Iyengars 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 Iyengars 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