Maniramlala Baliramlala v. Mt. Chattibai & Another

1. A preliminary objection, has been taken by the respondents that no appeal lies. The plaintiff-appellant sued the defendant Laxminarayan for Rs. 1,000 as damages for malicious prosecution. The trial Court awarded him Rs. 400 and certain costs. In appeal the decree was reversed, and plaintiff's suit was dismissed with costs in both Courts. After plaintiff-appellant had lodged a second appeal the respondent died, and an ex parte order was made that his legal-representatives should be brought on the record. It is they who take the present-objection, saying that the right to sue does not survive, and that the appeal abated on the death of Laxminarayan. It is clear 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 decision in two Courts. The matter is 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.

2. Respondents' learned counsel relies on 34 Mad 76,1 which was certainly in his favour. It was therein held that if an action fails what is incidental fails also, and that the appeal could not survive for the mere purpose of getting rid of the direction as to costs. This case was followed in 2 Rang 91.2 There are recent cases of the Nagpur Judicial Commissioner's Court dealing with actio per sonalis (27 NLR 327,3 30 NLR 1864). in which the principle is upheld that an appeal filed by the defendant from a decree in a suit for malicious prosecution does not abate on the plaintiff's death after the decree.

3. Those were cases in which the defendant was clearly entitled to get rid of the decree against him, and were not like the present where the appellant's suit stood dismissed. In this latter case it was recognized that the right to file a cross-objection by the plaintiff did not survive to his legal representative after his death. On the other hand appellant's learned counsel refers me to 4 Pat 61,5 2 Luck 464,6 51 Mad 7017 and 67 MLJ 146.8 All these were cases in which a positive decree had been passed, and none of these is on all fours with the present. The point has been adverted to by Mulla at p. 852 of his Code of Civil Procedure, 10th Edn. He remarks:

If after damages are awarded against a defendant the plaintiff appeals for enhanced damages and dies pending the appeal, the appeal abates, for the plaintiff's claim in the appeal is to enforce the original right to sue: 11 Lah 1.9 It follows that if the plaintiff's suit is dismissed, and the plaintiff has appealed from the decree, and either, party dies pending the appeal, the appeal will abate: 26 Bom 59710 at p. 601, 27 Mad 588.11

4. Similarly in Chitaley and Rao's Code of Civil Procedure, Edn. 2, p. 2094, under O. 22, R. 1, it is remarked:

If, in the first Court, the result was a dismissal of the suit, the plaintiff, in appealing against it is only seeking to enforce the very claim which he unsuccessfully sought to enforce in the suit. The appeal therefore partakes of the character of the suit and the “right to sue” will not survive on the death of either party.

5. I agree with these remarks, which, would apply to a dismissal of the suit in appeal. It is further remarked on the authority of 34 Mad loc. cit that the appeal cannot be continued even in respect of costs or other relief which are merely incidental to the main reliefs. I accordingly uphold the contention of the respondent and dismiss this appeal on the ground that it has abated. As the point was purely legal and an arguable one, I pass no order as to costs of the present appeal. Costs hitherto to be borne as directed by the lower appellate Court.

B.D/D.S

6. Appeal dismissed.