SHIAM SUNDER Vs. IMAMUDDIN ALIAS MUDDI, THE SOLE RESPONDENT DIED AND AFTER HIM 1. AMIR HASAN 2. BUDHU AND 3. SUDHU

JUDGEMENT

(1.) This is a plaintiff's second appeal from the decree of the Additional Civil Judge Fatehpur confirming that of the Munsif of Fatehpur dismissing his suit for recovery of damages from the defendant on the ground of malicious prosecution. The suit having been dismissed by both the courts below the plaintiff has come to this court in second appeal.

(2.) It is not necessary for me to consider this appeal on merits, in view of the statement made by the learned counsel for the plaintiff appellant that the defendant respondent died during the pendency of this appeal. This right to sue does not survive against the heirs of the deceased. In Rustomji Dorabji Vs. W.H. Nurse I.L.R. 44 Mad. 357 it was held by a Full Bench of the Madras High Court that where in a suit for malicious prosecution the defendant died after the institution of the suit but before judgment the right to sue did not survive against the legal representative. This decision was referred to in a subsequent judgment of this Court in Mahtab Singh Vs. Hublal I.L.R. 48 All. 630 though in that case the plaintiff died after filing an appeal from a decree dismissing his suit for malicious prosecution. It was held that his legal representative had no right to continue the appeal. The principle that in a suit for malicious prosecution the right to sue does not survive the death of the defendant was confirmed by a recent decision of the Madras High Court R.M.P.KP Ar. Arunachalam Chettiar Vs. Subramanium Chettiar A.I.R. 1958 Mad. 142. Thus the maxim actio personalis moritur cum persona has been applied irrespective of whether the plaintiff or the defendant dies before a decree is passed against the defendant. In the present case the plaintiff appellant seeks to enforce the cause of action against the legal representatives of a deceased defendant. Under the prevailing law I am afraid he cannot do so. This appeal is therefore dismissed. I would like to point out however that the doctrine of actio personalis moritur cum persona has been condemned as unfair and barbarous by almost every court in India. It deprives a plaintiff who has suffered injury from the wrongful act of the defendant to proceed against his estate. The reform of the law has become overdue. Appeal dismissed.