MARWADI MOTHIRAM (DIED) Vs. MSAMNAJI (DIED)

JUDGEMENT

(1.) This appeal arises from a suit brought by one Motiram for damages for malicious prosecution and for maliciously obtaining a search warrant in that prosecu-tion. The lower Court dismissed the suit but without costs. Motiram appealed but pending his appeal, he died. His sons were added as his legal representatives on record.

(2.) At the hearing a preliminary objection is taken by the respondents that the appeal has abated as the cause of action, being a personal one, did not survive to Motiram s heirs under the maxim "actio personalis moritur cum persona." The appellants on record, while admitting that the action is a personal one, contend that their appeal has not abated because the maxim quoted should not be applied to India as it is a technical rule of English Jurisprudence and because Section 89 of the Probate and Ad-ministration Act as construed by the High Court of Calcutta in the case reported in Krishna Behari Sen v. Corporation of Calcutta (1904) I.L.R. 31 0. p. 993 shows that actions for malicious prosecution do not abate with the death of the person concerned.

(3.) The maxim quoted is a well recognised rule of English law ; and it has been adopted and followed in India in many cases. It was applied in a case of damages for malicious prosecution and wrongful arrest by the Bombay High Court in the case of Haridas Ramdas v. Ramdas Mathuradas (1889) I.L.R. 18 B. 677. That High Court quoted and followed the leading English case of Phillips v. Homfray. (1883) L.R. 21 Ch. D. p. 139 The Bombay case was approved of and followed by this High Court again in a case of damages for malicious prosecution where the wrong-doer had died; vide the case of Ramchode Doss v. Rukmany Bhoy. (1905) I.L.R. 28 M. 187 The latest application of the rule brought to our notice is in the case reported in Subramania Iyer v. Venkataramier (1916) 31 I.C. p. 5. The rule that personal actions abate with the death of the person injured or injuring is thus a well established rule in this country also and I must therefore apply it.