JOSIAM THIRUVENGADA CHARIAR Vs. SAMIA IYENGAR ALIAS VENKATACHARIAR

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs against the 2nd defendant. The latter having died pending the second appeal, his widow has been brought upon the record. She raises the preliminary objection that the second appeal has abated on the ground that the right to sue did not survive after the death of the original 2nd defendant. The suit was brought for an injunction against the 2nd defendant restraining him from preventing the plaintiffs standing at a particular place in the Srirangam Temple. It is conceded by the appellants Vakil that he has no right to prosecute the appeal as regards the injunction after the death of the 2nd defendant, but he contends that the Courts below have dismissed his suit with costs, that his estate has lost, and the estate of the 2nd defendant has gained to the extent of the costs awarded, and that he is therefore entitled to continue the second appeal against the 2nd defendant's representative to get rid of the liability imposed upon him by the action of the Courts below. We think the preliminary objection is well founded.

(2.) THE case has to be decided with reference to the provisions of the repealed Code as the 2nd defendant died in 1908. It is provided by Section 361 that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Section 582 authorizes, in the case of appeals, the substitution of "appellant" for "plaintiff," "respondent" for "defendant," and "appeal" for " suit." Making the necessary changes then, we may read the section as follows:--"THE death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives." Section 582 does not in terms authorize the substitution of the verb " appeal " for the verb " sue " and therefore strictly speaking, we have no warrant for reading the section as if it ran:--" THE death of an appellant or a respondent shall not cause the appeal to abate if the right to appeal survives." It was, however, held by this Court in Paraman Chetty V/s. Sundaraja Naick (1902) I.L.R. 26 M. 499, where in an action for malicious prosecution a decree for damages had been passed by the Court below and the plaintiff- respondent died pending the appeal, that the defendant could continue his appeal as the right to appeal survived against the representative of the plaintiff. THE ground of decision was that after the judgment for damages the estate of the respondent was liable to be enriched by the amount of the decree for damages and that the appellant was entitled to get rid of the liability imposed upon him although an action for malicious prosecution was a personal action that would not survive the death of the party suing or sued. In deciding as above, this Court followed the view of the majority of the Bombay High Court in Gopaul V/s. Ramachandra (1902) I.LR. 26 B. 597. In Phillips V/s. Homfray (1883) 21 Ch. D. 4.39 it was observed by Bowen, Lord Justice: "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 the 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." This observation of the learned Lord Justice would seem to lead to the inference that if in an action for libel or malicious prosecution a decree for damages has been made, the defendant aggrieved by the decree and appealing against it would be entitled to continue it notwithstanding the death of the plaintiff-respondent, To the same effect are the remarks of Edge, C.J., in Muhammad Hussain V/s. Khushalso(1886) I.L.R. 9 A. 131 at 131. But it does not appear to follow from these decisions that a plaintiff mulcted in costs in such an action dismissed and incompetent to prosecute his appeal for damages would be entitled to maintain an appeal for the setting aside of the decree for costs which was consequent on the dismissal of the action. In Pulling V/s. Great Eastern Railway Co., (1882) 9 Q.B.D. 110 which was an action for personal injuries sustained by the running over of an engine, by the plaintiff's husband, it was held that there was no right of action to the representative of the deceased merely because there was damage to the estate of the deceased arising from expenses for medical attendance, ft was pointed out by Denman J. that none of the authorities go so far as to say that where the cause of action is in substance an injury to the person, the personal representative can maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury. In Krishna Behary Sen V/s. THE Corporation of Culcutta (1904) I.L.R. 310 C. 406 Mr. Justice Henderson held that an action for damages for malicious prosecution could not be continued after the death of the plaintiff because of the pecuniary loss sustained by reason of the expenses of defending against the criminal prosecution. Applying the principle of these cases, which we take to be that if the action fails, what is incidental to it must fail also, it appears to us that if the appeal abates because the appellant can no longer claim the injunction he prayed for against the deceased 2nd 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 direction as to costs. We must, therefore, hold that the appeal abates. THE representative of the 2nd defendant is entitled to her costs against the appellant.