Decided on September 24,1970



- (1.) THIS revision arises out of a suit filed by the petitioner as an assignee of a promissory note dated 26-9-1966 executed by the respondent for a sum of Rs. 3000 in favour of the petitioner's assignor. The said suit was resisted by the respondent. he also filed an application under O. 8-A, Rule 1 of the Civil Procedure code for impleading the husband of the assignor as a party defendant to the suit contending that the consideration for the promissory note was paid by the assignor's husband, that he had received the entire amount due under the promissory note and had passed a receipt to him in full discharge of it, and that as such he is entitle to be indemnified for the payments made to him in the event of the petitioner succeeding in getting a decree against him. This application was resisted by the petitioner on the ground that the assignor's husband cannot be made a party to this suit, that the remedy of the respondent, if any, was to file an independent action against him for the amounts alleged to have received by him and that the provisions of O. 8-A, Rule 1 cannot therefore be invoked in this case. The lower court had noted that the respondent had filed three receipts along with his written statement to prove his case of payment of the amounts to the assignor's husband in full discharge of the promissory note debt and held that, in the circumstances of the case, the third party procedure under Order 8-A, Rule 1, c. P. C. The plaintiff challenges the order of the lower court as incorrect and erroneous.
(2.) THE learned counsel for the petitioner relies on the decision in Sundaram Ammal v. Krishnaswami Reddiar. wherein a Division Bench of this court held that it is not open to the promisor of a note to contend that some one, other than the payee on the face of the note is the real owner of the note, and contends that the case now put forward by the defendants is that the assignor's husband is really the payee under the promissory note and not the assignor and that such a contention cannot be put for forward in the suit to enforce the promissory note. I do not accept this contention. The defendant in this case merely says that the amounts due under the promissory note have been paid to the assignor's husband treating the payment made to the assignor's husband as payment made to the assignor. hence the above decision cannot stand in the way of the respondent.
(3.) THE learned counsel then cites the decision of Ramachandra Iyer, J, (as he then was) in Pattabhiraman v. Ganapathi Kannappa Mudali, where it has been held that, though Order 8-A will apply also to suits on promissory notes and the court should not refuse to adopt third party procedure merely on the ground that the suit is based on a negotiable instrument, before a third party notice could be issued it is necessary for the court to find whether the defendant is entitled to an indemnity or contribution from the third party concerned. In that case, in defence to a suit on a promissory note the defendant pleaded that certain payments had been made to the payee which he had failed to give credit to, and the learned Judge held that if the maker is put to a loss on account of the fraudulent act of the payee and endorser, his remedy would be in the nature of damages and not by way of indemnity, and that Order 8-A, Rule 1 is inapplicable to that case. But, the learned Judge, however, directed the payee to be impleaded as a party defendant in the suit under Order 1, Rule 10, C. P. C. Relying on this decision, the learned counsel for the petitioner submits that the respondent has no right of indemnity as against the assignor or the assignor's husband and that his only remedy was to file a separate suit for damages in the event of the suit being decreed against him. With due respect, I am not in a position to say that the respondent cannot proceed against the assignor's husband under the third party procedure in this case.;

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