JUDGMENT

In this second appeal the few facts which I have to state for the purpose of the decision are as follows: The suit was for damages for malicious prosecution which the trial Court decreed with costs. On appeal taken by the defendants the decree of the trial Court was reversed and the suit dismissed with costs. The plaintiff having thereafter died, his legal representatives preferred this second appeal to this Court. After the institution of the second appeal, the defendant having died, the appellants herein have brought the respondents before me as legal representatives.

To the hearing of this second appeal an objection in limine has been taken by the respondents founded on the rule actio personalis moritur cum persona. I have heard arguments not only on the objection but also on the merits of the second appeal. As regards the latter I may at once say that there is very little, if any, of substance in the argument for the appellants. The report of the Commissioner appointed by the lower appellate Court is said to be additional evidence taken in contravention of O. 41, R. 27 C.P.C by which the appellate judgment is vitiated. There is however other evidence in support of the findings of the lower appellate Court on the question of the existence of malice and the absence of reasonable and probable cause which I am not therefore prepared to disturb. Concerning the preliminary objection raised by him learned Counsel for the respondents has relied on Maniramlala v. Mt. Chalti Bai and another(1) while learned Counsel for the appellants has relied as against it on Nga Eyet Sein v. Mi Kyin Mya(2) a decision of the Judicial Commissioner of the Upper Burma Judicial Commissioner's Court not as a decision citable to this Court but for its reasoning which Counsel seeks to adopt as his own. It is not disputed by counsel on both sides that the present case is sufficiently indistinguishable on facts from each of those cases, although there unlike here the original respondent in the first appeal preferred a second appeal and died afterwards and the respondent in the second appeal did not die during the pendency of the second appeal but remained alive and on record down to the decree of the second appellate Court. It is not disputed therefore that the decision of the point must go in favour of the respondents or the appellants according to the one decision or the other is accepted by me as correct.

Before dealing with the two decisions it is necessary to ascertain the provisions of the Civil Procedure Code which govern the situation. They are to be found in O. 22, Rr. 1 and 11 C.P.C R. 1 is as follows:

“The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives”.

R. 11 is in the following terms:

“In the application of this order to appeals, so far as may be, the word ‘plaintiff’ shall be held to include the appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal”.

“The right to sua” occurring in R. 1 has been, in my opinion, rightly interpreted by Fulton J. in Gopal v. Ramachandra as meaning the right to seek relief. Says the learned Judge at page 603 of the Report:

“What, then, is the meaning of the words ‘right to sue’ in that section (S. 361 of Act XIV of 1882). If the words ate synonymous with ‘cause of action’ as used in O.L referred to in Twycross v. Grant that decision may doubtless be appealed to in order to show that ‘cause of action’ means the plaintiff's original cause of action. But they appear not to be synonymous. In Act VIII of 1859 and Act X of 1877 the words ‘cause of action’ were used in Ss. 99 and 361 corresponding with S. 361 of the present Code, in which the Words ‘right to sue’ have been substituted. It seems useless, therefore, in regard to this point to refer to Twycross v. Grant which depends on words which the Legislature has superseded. It is obvious how inconvenient the words ‘cause of action’ Would be in S. 362 after substituting ‘appellant’ and ‘respondent’ for ‘plaintiff’ and ‘defendant’. I have not been able to discover any judicial interpretation of the words ‘right to sue’ in S. 361, but I venture to suggest that, as applied to appeal, they mean right to seek relief.’ This construction seems to my mind to be in furtherance of justice and to be consistent with the etymology of the word ‘sue’ which in Wheaton's Law Lexicon is defined as meaning ‘to prosecute by law, to claim a civil right by means of legal procedure’. What may have been the precise object of the Legislature in altering the phraseology we do not know. But the meaning must be sought in the words themselves, on which we must put a fair grammatical construction. In popular language, no doubt, the phrase ‘right to sue’ is associated with the right to institute a suit, but when we come to deal with appeals the analogy fails. In the appeal, it is the appellant, whether plaintiff or defendant, who is suing for relief and it would surely be anomalous if the representative of the defendant were debarred from prosecuting an appeal against an erroneous decree because the plaintiff could not have obtained that decree if the defendant had died during the course of the suit”.

Applying the meaning of the words “right to sue” as given by Fulton J. in the Bombay case Gopal v. Ramachandra above cited, the question first is, when the plaintiff respondent in the lower appellate Court died after the decree of that Court, was there a right to seek relief in further appeal on the part of his legal representatives? When during the pendency of the second appeal, if competent, the defendant-respondent died, the further question is, did the right to seek relief survive against the legal representatives of the respondent?

These being the two questions for consideration I shall take them up in their order as indicated above. As regards the first I am dear that the answer must be in the negative. With the decree of the lower appellate Court in reversal of that of the trial Court the plaintiff lost in appeal which he had gained in the Court of trial. It is as if he were thereafter to agitate the matter with a clean slate, so to say, if he should file a second appeal, and if before he could file it he died, his legal representatives could not file it after his death because with his death the cause of action personal to him died too. In the case in Maniramlala v. Mt. Chalti Bai and another(3) which was a case of action for defamation this is what Gruer J. who decided the case says at page 281:

“It is dear law that an action for defamation is a personal one, and if the defendant had died during the course of the original trial the case would undoubtedly have abated. The question is whether this general principle is inapplicable because of the fact that the litigation reached the stage of the decision in two Courts. The matter undoubtedly transit in rem judicatam, but the first decree has been wiped out by the appellate decree which grants no relief to the present appellant and imposes no liability on him except for payment of costs. There is good authority for holding that when a decree has been passed in favour of a party in such a personal suit he is entitled to execute it against the estate of the defendant who may subsequently die, and also that if a decree has been passed against a party he is not precluded from appealing because of the death of his opponent. But there is also authority for distinguishing such cases from the present in which the appellant is practically in the position in which he was before he started the litigation so far as his claim is concerned. In such a case there seems no valid reason why the litigation should not rest.”

Reliance is placed by the learned Counsel for the appellants on two cases one in Gopal v. Ramachandra (already referred to in another connection) and the other in Paraman Chetti v. Sundararaja Naick (4). In the former the facts were as follows: In a suit for defamation the plaintiff obtained a decree for damages against the defendant and executed the decree. The defendant filed ah appeal, but died before the hearing. His son and legal representative Was placed on the record as appellant. When the appeal came on for hearing before Candy and Fulton JJ. the respondent objected that by the death of the defendant the appeal has abated, and that the defendant's son had no right to continue the proceedings. The two learned Judges differed, the former holding that the appeal did not abate and that the defendant's legal representative had a right to continue the proceedings as appellant, the latter holding the contrary. There was a reference to a third Judge, Crowe J. who agreed with Fulton J. and disagreed with Candy J.

The case in Paraman Chetti v. Sundararaja Naick was a similar case which however went upto the High Court in second appeal. There, as the head note bears.

“In a suit for damages for malicious prosecution the District Munsif decreed in plaintiff's favour and gave damages. Defendant appealed to the District Judge, who confirmed the decree and dismissed the appeal. Defendant preferred a second appeal, but died before it was heard. The appeal was prosecuted by defendant's legal representative, when it was objected that in as much as the cause of action for damages for malicious prosecution could not survive after the death of the defendant, his legal representative was not entitled to prosecute the appeal.”

It was held that the legal representative was entitled to prosecute the appeal.

It will be seen that both the cases in Gopal v. Ramachandra and Paraman Chetti v. Sundararaja Naick are distinguishable from the present on the ground referred to by Cruer J. in Maniramlala v. Mt. Chalti Bai and another namely, that in the present case, as in the Nagpur case Maniramlala v. Mt. Chalti Bai and another “the appellant is practically in the position in which he was before he started the litigation so far as his claim is concerned”. Learned Counsel for the appellant urges that this distinction made by Gruer J. is not just and that there is no reason to assume that the decree of the lower appellate Court wiping out the decision of the trial Court is necessarily correct. He places strong reliance on the reasoning of the case in Nga Kyet Sein v. Mi Kyin Mya . There the plaintiff appellant sued one Maung Chu Ni for damages for slander and obtained a decree for Rs. 100 and costs. On appeal this decree was set aside and the suit was dismissed. The plaintiff appellant then appealed to the Upper Burma Judicial Commissioner's Court, and after the appeal was filed, Maung Chu Ni died and his legal representatives were brought on the record. At the hearing of the second appeal the Advocate for the respondents took the preliminary objection that as the right to sue did not survive the appeal must abate. It was contended on the other hand that as the plaintiff appellant obtained a decree in the Court of first instance thereby potentially increasing his wealth, he must have the right to get rid of the decree of the lower appellate Court which has deprived him of that benefit. Reliance was placed on Gopal v. Ramachandra . The Court observed in its judgment:

“In that case the position was reversed; the plaintiff having lost in the first Court obtained a decree for damages in the lower appellate Court. One of the Judges before whom the second appeal came was of the opinion that no distinction should be drawn between an appeal by a plaintiff and an appeal by a defendant and that in the case of an action for slander an appeal must abate on the death of one of the parties whichever side appealed, but the majority of the Judges held that though in such a case an appeal by a plaintiff must abate an appeal by a defendant did not because his estate was affected by the decree.

It seems to me that though the position is reverse the same principle applies in the present case. If the defendant had died during the pendency of the first appeal, his legal representatives would have been entitled to prosecute that appeal on the authority of the ruling above cited, which was followed in Paraman Chetti v. Sundararaja Naick and on their succeeding the plaintiff-appellant would undoubtedly have had a right to contest the correctness of the decision in this Court, because if the right to continue the appeal in the lower Court survived it could not be extinguished by the judgment. I am unable to see on what principle the fact that the defendant died after the second appeal was filed and not during the pendency of the first appeal, can make a difference. In the Bombay case Fulton, J. interpreted ‘the right to sue’ as the ‘right to seek relief. If, therefore, the right to sue in the case of the first appeal meant the defendant's right to appeal against a decree which affected his estate, I do cot see why in the, present appeal the words should refer back to the original cause of action. The plaintiff-appellant is not now endeavouring to enforce his personal right of immunity from slander, but to recover the benefit which accrued to his estate in consequence of the judgment of the Township Court and of which he has been deprived, by the judgment of the lower appellate Court”.

To my mind this reasoning of the Upper Burma Judicial Commissioner's Court seems fallacious. It does not take note of the distinction between the two classes of cases. Gruer, J, in the Nagpur Case Maniramlal v. Mt. Chalti Bai and another , rightly makes that distinction and I accept his view as correct. I may also refer in this connection to a case in Marwadi Mothiram v. Samnaji , cited for the respondents. In that case a suit for damages for malicious prosecution was dismissed, and the plaintiff died during the pendency of an appeal preferred by him against the dismissal of the suit. It was held that the appeal abated and his legal representatives had no right to prosecute it. Referring to Gopal v. Ramachandra , and Paraman Chetti v. Sundararaja Naick , Krishnan, J. delivering the judgment of the Court consisting of himself and Abdur Rahim, O.C.J, observes at page 773 of the report thus:

“The case of Gopal v. Ramachandra and Paraman Chetti v. Sundararaja Naick , following the view of the majority in the Bombay case have no application here as in both these cases a decree for damages had been obtained before the wrong-doer died; the legal representative was allowed to prosecute the appeal to save the estate which had devolved on him from loss by the execution of the decree. In the present case, as the lower Court dismissed the Motirams suit without costs, he was in the appeal, in the position of a person claiming damages not yet decreed. Both the cases cited recognise the rule that personal actions so long as they remain unconverted into decrees abate on death. Fulton, J. in his judgment observes, ‘Now it need not be doubted that to a suit for libel the maxim actio personalis moritur cum persona applies. If previous to decree the defendant dies, the plaintiff can no longer prosecute his suit for damages. The same rule would apply in the appeal, if the plaintiff having failed in the lower Court were seeking to obtain a decree for damages in the Court of appeal’.”

The circumstances that the lower appellate Court's decree in the present case was a decree of dismissal of the plaintiff's suit with costs and not of dismissal simpliciter does not, in my opinion, make any difference to the competency of the present second appeal. That is the View of this Court in Josiam Tiruvengadachariar v. Swmi Iyengar (5), which Gruer, J. in the Nagpur Case Maniramlal v. Mt. Chalti Bai and another , also adopts. In Josiam Tiruvengadochariar v. Swomi Iyengar , in a personal action for an injunction a decree was given for the defendant with costs. Plaintiffs appealed, and during the pendency of the appeal the defendant respondent died. It was held that the right to prosecute the appeal against the respondent's legal representative did not survive to the appellants. It was further held that if an action failed as a result of the application of the rule actio personalis moritur cum persona what is incidental, namely, the matter of the costs directed to be paid by one party to the other, also failed. The Court observes at page 79 of the report:

“………it appears to us that if the appeal abates because the appellant can no longer claim the injunction he prayed for against the deceased second defendant, the costs he was made liable to pay as a consequence of the dismissal of his suit could not form the subject matter of a continuing appeal. It was said that an appeal might be preferred for costs alone. But this is not as of course, for no such appeal on a mere question of costs is ever entertained unless there is a legal principle involved. And if the appellant cannot prosecute his appeal for the injunction, he cannot be allowed to show that the decree refusing the injunction was wrong for the mere purpose of getting rid of the directions as to costs.”

Turning then to the question whether when during the pendency of the second appeal, if competent, the defendant-respondent died, the right to seek relief survives against the legal representatives of the respondent, here again I am clear that the appellants are faced with an equally insurmountable difficulty. As observed by Bowen Lord Justice in Phillips v. Homfray (6), in a passage which has been accepted by this Court in the case in Josiam Thiruvengadachariar v. Swomi Iyengar .

“It is of the essence of the rule, viz., actio personalis moritur cum persona, that claims which are indeterminate in their character shall not be pursued against the estate, of a person after his death. If the claim is one for unliquidated damages and has not been perfected by judgment at the time of the death of the defendant, the rule applies.”

In the present case after the wiping out of the trial Court's decree by the lower appellate Court's the position is that there is merely an outstanding claim in the second appeal indeterminate in character on the part of the legal representatives of the plaintiff against the respondent after whose death claim cannot be pursued against his estate since it is only an unliquidated claim which has not been perfected by judgment at the time of the death of the defendant. As pointed out in Chitaley and Rao's Commentary on the Code of Civil Procedure, 4th Edition at pages 24-27 “the maxim actio personalis moritur cum persona is, as a general rule, applicable to actions in respect of torts and, therefore, on the death of either party to such an action the right to sue will be extinguished. The right to seek relief in appeal too must stand similarly extinguished on the same principle where the claim is indeterminate in character and has not yet taken the shape or form of a decree or judgment of Court.”

For the reasons indicated I am clearly of opinion that this second appeal fails on the preliminary objection of this respondents as well as on the merits and must accordingly be dismissed with costs.

No leave.

N.R.R