Kuhafa Et Al., V. Vairavan Chettiar

1949 Present : Wijeyewardene C.J. and Pulle J.

KUHAFA et al., Appellants, and VAIRAVAN CHETTIAR,
Respondent

S. C. 273-D. C. Galle, 8,540

Action on cheque-Several defendants-Joint and several liability-Judgment obtained against some defendants-No bar to action against the other defendants-Bills of Exchange Ordinance (Cap. 68), sections 55, 57.

Where parties are jointly and severally liable a creditor recovering judgment against one of them is not precluded thereby from subsequently recovering judgment against the others,

APPEAL from a judgment of the District Judge, Galle.

In an action on a cheque instituted under Chapter 53 of the Civil Procedure Code the plaintiff sued the drawer, the payee and two endorsees. Judgment was at first entered against the 1st and 2nd defendants for failure to obtain leave to appear and defend within seven days of the service of summons. Subsequently, after trial, judgment was entered against the 3rd and 4th defendants also. The 3rd and 4th defendants thereupon appealed on the ground that plaintiff was not entitled to ask for judgment against them, as judgment had already been entered against the 1st and 2nd defendants.

M. H. A. Aziz, for 3rd and 4th defendants appellants.

H. W. Jayewardene, with L. C. Gunaratne, for plaintiff respondent.

Cur. adv. vult.

October 31, 1949. WIJEYEWARDENE, C.J.-

This is an action on a cheque instituted under Chapter 53 of the Code.

The cheque was drawn by the first defendant in favour of the second defendant. The third and fourth defendants were successive endorsees of the cheque. The fourth defendant endorsed the cheque for valuable consideration to the plaintiff. Summons was served on the first and second defendants on May 18, and judgment was entered against them on June 24, as they failed to obtain leave to appear and defend the action within seven days of the service as required by Court. Summons appears to have been served on the third and fourth defendants in July and 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 war. not entitled to ask for judgment against the third and fourth defendants, as judgment had already been entered against the first and second defendants. The appellants' Counsel relied on some decisions of this Court where it was held that judgment against one debtor on a joint debt was a bar to any further proceedings against the remaining debtors. As Mr. H. W. Jayewardene pointed out, these decisions are not relevant in the present case. The defendants in this case are liable jointly and severally to pay the amount of the cheque (vide Halsbury's Laws of England, volume 2, paragraph 887). Where the parties are jointly and severally liable, a creditor recovering judgment against one is not precluded thereby from recovering judgment against the others (Blyth v. Fladgate [(1891) 1]Chancery 337 at 353 ). This principle which is recognised in section 89 of our Civil Procedure Code stated follows in Lechmere v. Fletcher [(1893) 149 English Reports]: -

" There are many cases in the books as to joint and several bonds from which it appears, that, though you have entered judgement on a joint and several bond against one obligor, you are still at liberty to sue the other ; unless indeed the judgment has been satisfied; but so long as any part of the demand remains due. you are at liberty to sue the other notwithstanding you have obtained judgment against one. This, I think, establishes the principle, that where there is a joint obligation, and a separate one also, you do not, by recovering judgment against one, preclude yourself from suing the other ".

I would dismiss the appeal with costs.

PULLE J.-

I agree. Under section 55 of the Bills of Exchange Ordinance (Cap. 68) the drawer of a bill and the endorsees thereof inc

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