GULABRAO RAMCHANDRA MARATHE Vs. DEORAO KRISHNARAO

JUDGEMENT

(1.) THE question before us is whether the rights and liabilities arising under a decree; awarding damages for malicious prosecution continue when the plaintiff dies during the pendency of an appeal against the decree. It arises out of an application for substitution of the legal representative of the plaintiff-respondent. The plaintiff Deorao obtained a decree against the defendant Gulabrao for Rs. 1,307-8-0 as damages for malicious prosecution. The rest of the claim was dismissed. The defendant Gulabrao appealed to this Court against the Rs. 1,307-8-0 decreed against him and the plaintiff Deorao filed a cross-objection with respect to the portion of his claim which had been dismissed. After this, but before either the appeal or the cross-objection could be heard the plaintiff Deorao died and his legal representative made the present application for substitution in the memorandum of cross-objections. The defendant Gulabrao not only opposed this, but also stated that the entire claim had abated, and so asked for an order setting aside the decree on that ground.

(2.) SO far as the cross-objection is concerned the matter has been decided by one of us in Ratanchand v. Municipal Committee, Hinganghat AIR 1931 Nag 9. The only point of distinction between that case and this is that in the former case the entire suit had been dismissed, whereas in the present case only a portion of the claim has been rejected and the rest decreed. We do not think the distinction makes any difference to the principle, and consider the law has been correctly expounded there. Three points are decided by it. The first is that Under Section 306, Succession Act, an action for personal injury not causing the death of a party does not survive. The second is that the words "personal injury" do not mean merely physical injury to the person but include all personal injuries in the commonly accepted use of the words. The difference of opinion between the Calcutta High Court in Bhupendra Narayan v. Chandramoni AIR 1927 Cal 277 and the Allahabad, Madras, Patna and Bombay High Courts in Mahtab Singh v. HubLal AIR 1926 All 610, Murugappa Chettiar v. Ponnusami Pillai AIR 1921 Mad 405, Punjab Singh v. Ramautar Singh AIR 1920 Pat 841 and Motilal v. Harnarayan AIR 1923 Bom 408 has been fully considered and the wider interpretation favoured by the majority followed. The third point decided is that the fact that the plaintiff had incurred some pecuniary loss will not cause the right to sue to survive. On all three points we respectfully concur. That also was a suit for damages for malicious prosecution and entirely covers the present case. Another case in which this matter has been considered is Bhim Sain v. Muhammad Ali, AIR 1929 Lah 807. The position there was much the same as here. The suit was for damages for a personal injury. A portion of the claim was decreed against the tort-feasor and the rest dismissed. The tort-feasor appealed and the plaintiff put in cross-objections. The tort-feasor then died before the appeal and the cross-objection could be heard. It was held that the cross-objection abated. In the present case it is the plaintiff who has died, but the principle applies either way. We therefore hold that the cross-objection abates.

(3.) ASSIGNMENT and devolution stand on the same footing so far as this question is concerned. The principle has been applied in India in the following cases. Paramen Chetty v. Sudararaja Naick (1908) 26 Mad 499 was a suit for damages for malicious prosecution. The plaintiff obtained a decree against which the defendant twice appealed. The defendant died during the pendency of the second appeal. His legal representative was allowed to prosecute the appeal. Gopal v. Ramchandra (1902) 26 Bom 597 is to the same effect. It was a suit for defamation. In Muhammad Husain v. Khushal (1887) 9 All 131 at p. 134, Edge, C.J., observed: I have always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment the action would not abate if final judgment had been obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his legal representative.