JUDGMENT

Arthur Strachey, C.J. - This appeal raises an important question, never yet decided, whether the doctrine of King v. Hoare (1844) 13 M.&W. 494, and Kendall v. Hamilton (1879) L.R. 4 A.C. 504, as to the effect of a judgment on a joint contract upon a subsequent suit against co-contractors who were not parties to the former suit, should be applied in these Provinces, notwithstanding Section 43 of the Indian Contract Act, 1872.

2. The suit was a suit for sale on four mortgages executed in 1886,1888, 1889 and 1890, and was brought against seventeen persons who are admittedly members of a joint Hindufamily. In the plaint the plaintiff alleges that the defendants Nos. 16 and 17, Budh Ram Singh and Mahabir Singh, who are pro forma defendants only, were the managers of the joint family carrying on its business, and that as such managers and for the purpose of meeting necessary family expenses, these defendants borrowed money from the plaintiff's father and the plaintiff himself on the security of the mortgages in suit, which are mortgages of shares in zamindari property owned and possessed by the joint family. On these mortgages, which were executed by the defendants Nos. 16 and 17 in their own names, the plaintiff formerly sued those defendants only, and obtained a decree for sale for Rs. 12,857-1-3, which became final on the 5th May 1894. In execution of the decree the mortgaged property was advertised for sale. Thereupon the defendants Nos. 1 to 15 brought a suit against the decree-holder for a declaration that, as they had not been made parties to the first suit, as they should have been with reference to Section 85 of the Transfer of Property Act, 1882, they were not affected by the decree, and their interests in the family property could not be sold in execution of it. The Court trying that suit gave the declaration prayed for, on the authority of the decision of the Full Bench in Kallu and Others Vs. Bhawani Prasad, (1895) ILR (All) 537 Thereupon the plaintiff brought the present suit, claiming enforcement of the mortgages against the defendants Nos. 1 to 15 by sale of their interests. According to the pedigree annexed to the plaint, these defendants are brothers, brother's sons and cousins of Budh Ram Singh and Mahabir Singh. In defence the defendants raised various pleas, in which they denied that Budh Ram Singh and Mahabir Singh were managers of the joint family and that the loans were taken for purposes binding on the family, and other contentions to which it is unnecessary to refer. The Court below has dismissed the suit on a preliminary point of law. It has held in effect that by the decree of the 5th May 1894, against two only of the persons alleged to be jointly liable under the mortgages, the whole cause of action in the case of each mortgage was merged and could not be made the subject of a fresh suit against joint debtors not parties to the suit in which the decree was passed. The Subordinate Judge in his judgment says that he therefore dismisses the suit as barred by Section 43 of the Code of Civil Procedure. The reference to that Section is an obvious mistake, as Section 43 of the Code applies only where the former suit was between the same parties or between parties under whom the parties to the subsequent suit claim. Balmakund and Another Vs. Musammat Sangari and Another, (1897) ILR (All) 379 I think, however, that the reference to Section 43 of the Code is a mere slip, as the judgment is expressly based on the decision in Nuthoo Lall Chowdhry v. Shoukee Lall (1872) 10 B.L.R. 200 : S.C. 18 W.R. 458, which proceeded, not on the principle of splitting claims now embodied in Section 43 of the Code, but on the principle of King v. Hoare (1844) 13 M. & W. 494. The question is whether, having regard to that principle and to the provisions of Section 43 of the Contract Act, the principle is applicable to cases of joint liability in this country.

3. The case of Nuthoo Lall Chowdhry v. Shoukee hall (1872) 10 B.L.R.