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Judgment
Natesan, J.—The Defendant is the Appellant. The suit was on a promissory note for recovery of a sum of Rs. 1,640, being the principal of Rs. 1,500 and interest at five and half per cent per annum. The promissory note was executed by the Defendant and two other individuals, one Rama Rao and another Lakshminarayana Rao. It is admitted that the Plaintiff himself took up proceedings for adjudicating the said Rama Rao and Lakshminarayana Rao insolvents and that they were adjudged insolvents in Insolvency Petition No. 10 of 1959. To this suit on the promissory note against the Defendants, one defence raised in the Courts below was that the Defendant was only a surety and that the Plaintiff had entered into an agreement with him that he would be released on payment of a sum of rupees one hundred that the sum of rupees one hundred was paid and that, therefore, he was discharged of his liability. This plea has been found against by the Courts below and is not now persisted in second appeal.
In the lower appellate Court it was argued as a question of law that the writ has against the Defendant alone was not maintainable, the promissory note having been executed by three individuals. This defence has not found acceptance at the hands of the learned Subordinate Judge, as it cannot be disputed that the liability is joint and several, and is not pressed here.
Now in second appeal the learned Counsel appearing for the Appellant contends that the doctrine of election would apply to this case and that the Plaintiff, having applied to adjudicate the other two executants, insolvents was precluded from filing a suit against the other executants on the promissory note. It is argued that if the Plaintiff had filed originally a suit against the other executants alone, he will be barred from instituting a suit against pre present Defendant over again on the same promissory note. It is contended that the same principle would apply even if the earlier proceedings were for adjudicating the other executants as insolvents. For one thing, that point was not taken in the Courts below. It is not known whether this promissory note debt was made the basis of the application for adjudication. Assuming it to be so, proceeding in insolvency against two of the executants is not an election of remedies with reference to the Defendant.
The equitable doctrine of election as set out in the leading case of Streat-field v. Streatfield 1735 Cas. Talbot 176. White and Tudor, Leading Cases in Equity (ninth edition), page 373; is as follows:
Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, pre-supposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice but he cannot enjoy the benefit of both.
The aforesaid statement of the doctrine of election negatives its applicability to the facts of this case. As against the Defendant there has not been a prior choice of remedies for an inference that the right of suit against him has been given up. One cannot infer, from the creditor choosing to adjudicate two of the executants of the promissory note he gave up his remedy against the solvent-debtor. I cannot see how any question of election can arise in the case. No other point is argued in the second appeal.
In the result the second appeal fails and is dismissed with costs. No leave.