VEERAPPA Vs. EVELYN SEQUEIRA

JUDGEMENT

(1.) LEAVE granted.

(2.) THE limited question failing for our determination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff.

(3.) DURING the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under 0. 22. R. 3 (I) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio personalis cum moritur persona. The District munsiff upheld the objection and dismissed the suit as having abated but the high Court held otherwise and declared the legal representatives to be entitled to get impleaded and continue the suit. The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen v. Corpn, of Calcutta (1904) ILR 31 Cal. 993, sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji v. W. H. Nurse, ILR 44 mad. 357: (AIR 1921 Mad. 1) (FB.) and Motilal Satyanarain v. Harnarain premsukh, AIR 1923 Bom 408. The said order of the learned single judge is under challenge in this appeal.