MELEPURATH SANKUNNI EZHUTHASSANversusTHEKITTIL GOPALANKUTTY NAIR

                                                              805


                MELEPVRAl'll SANKIJNNI EZlllJTllASSAN               A
                                  v.

                        NOVEMBER 29, 1985

                  [D.P. MADON AND G.L. OZA, JJ.]                    B

      Abatement of Appeal - Maxim "Actio Fersonalis lloritur cum
persona" (A personal action dies with the person), applicability
of - Right to sue/prosecute appeal whether survives. on the death
of the appellant in an appeal ar.ising out of a defamation case -
Right to be represented by Legal Representatives, application       c
maintainability. of - Code of Civil Procedure, 1908 Order XXII
Rules 1 and 11 read with section 306 of the Indian Succession
Act, 1925 and Order XV Rules 32 and 33 of the Supreme Court
Rules, 1966.                       ·

      The appellant filed a suit in the Court of the Subordinate    D
Judge, Ottappalam againat the Respondent cldmfng a sum of Ila.
5500 as damages for defamation. The Trial. Court dismissed the
suit with costs. In First appeal preferred by the appellant, the
District Judge allowed the appeal, decreed the suit and awarded
Rs. 500 as damages and proportionate costs both of the said
appeal and suit. In the Second appeal filed by the Respondent,      E
the High Court of Kerala reversed the decree of the District
Judge and dismissed the cross objections filed by the appellant.
Against the said judgment with no order as to costs throughout
Special Leave was granted by the Supreme Court in 1972 and during
the pendency of the Civil Appeal, the appellant died leaving
behind him surviving two grandsons and two grand dalJ8hters. On
November 4, 1985 one grandson and one grand-daughter moved two      F
applications-one to bring the grand-sons and grand-dalJ8hters on
record as Legal Representativea and the other to condone the
delay in filing the said application and to set aside the
abatement of the Appeal.

      Dismissing the petitions and the appeal, the Court            G

      HELD: 1.1 Reading section 306 along with Rules 1 and 11 of
Order XXII of the Code of Civil Procedure, 1908, it is clear that
s cause of action for defamation does not survive the death of
the appellant. [810 0-D)
    806             SUPREME COURT REPORTS       [1985] SUPP. 3 s.c.R.

A       1.2 l'lllere a suit for defsmation is dismissed and the
  plaintiff has filed an appeal, what the appellant-plaintiff 1a
  seeking to enforce in the appeal is his right to sue for clallages
  for defsmation and as this right does not survive his death, bis
  legal representative has no right to be brought on the record of
  the appeal in his place and stead if the appellant dies during
B the pendency of the appeal. The position, however, is different
  where a suit for defsmation has resulted in a decree in favour
  of the plaintiff because in such a case the cause of action has
  merged in the decree and the decretal debt forms part of h1a
  estate and the appeal from the decree by the defendant becomes a
  question of benefit or detriment to the estate of the plaintiff-
  respondent which his legsl representative is entitled to uphold
C and defend and is, therefore, entitled to be substituted in place
  of the deceased respondent-plaintiff, [810 D-F)

        1.3 Though section 306 speaks only of executors and
  administrators, on principle the same position must necessarily
  prevail in the case of other legal representatives, for such
  legal representatives cannot in law be in better or worse
D position than executors and administrators and what applies to
  executors and aclministrators will apply to other legal
  representatives also. [810 G-H]

          2.1 Rule l of Order XXll of the Code provides that "the
    death of a plaintiff or defendant shall not cause the suit to
E   abate if the right to sue survives." Thus, if the right to sue
    does not survive, the suit will abate on the death of the
    plaintiff, Under Rule 3 of Order XXII, where a sole plaintiff
    dies and the right to sue survives, the court on an application
    made in that behalf will cause the legsl representative of the
    deceased plaintiff to be made a party and shall proceed with the
F   suit. If, however, no application in that behalf is made within
    the time prescribed by law, the suit will abate. Under Rule 9(2),
    the court may set aside the abatement of the suit on the
    application of the person cl aiming to be the legal representative
    of the deceased plaintiff if the proves that he was prevented by
    any sufficient cause from continuing the suit. Rule 11 furtjler
G   provides the applicability of Order XXll to appeals as well
    substituting the words "plaintiff", "defendant" and suit by
    "appellant", "respondent" and "appeal" respectively. Th1111,
    reading Rule l and Rule 11 of Order XXII together, in the case of
    an appeal Rule l would read "the death of an appellant or
H   respondent shall not cause the appeal to abate if the right to
    sue survives." Thus, where there is only one appellant and be
            M.S. EZHIJTliASSAN v. T.G. NAIR [MADON, J.)         807


dies dur!Dg the pendency of the appeal, if bia tight to sue does
not SWlVive, the appeal will abate and his legal repreaentatbe         A
will have no right to be br"U8ht on the record to contimae the
appeal. [808 F-H; 809 A-il)

     2.2 In the present case, if the Appellant''s right to -
had survived on his desth, his right to prosecute the present
appeal would also survive, but if the right to sue would not have      B
survived on his death, this appeal also would not have survived
8Dd would abate. [809 D-E)

       2.3 The position, therefore, is that had the appellant died
dur!Dg the pendency of his suit, the suit would have abated. Bad
he died during the pendency of the appeal filed by him in the          c
District Court, the appeal would have equally abated because his
suit had been dismissed by the Trial Court. Had he, however, died
dur!Dg the pendency of the second appeal filed by the respondent
in the High Court, the appeal would not have abated because he
had succeeded in the first appeal and his suit had been decreed·
As however, the High Court· allowed the second appeal and              o
dismissed the suit, the present appeal by Special Leave Dlllt
abate because what the appellant waa seeking in this appeal was
to enforce his right to sue for dalllages for defamation. Tbia
right did not survive his death and accordingly the appeal abated
aut011111tically on his death and his 11gal representatives acquired
no right in law to be br"U8ht on the . record in his place and         E
stead. [811 A-<:]

      CIVIL APPELLA'IE. JURISDICTION : Civil Appeal No. 91 of 1972.

      From the Judgment and Order dated 12.2.1971 of the Kerals
High Court in S.A. No. 21 of 1966.
                                                                       F
      A.s. Nambiar for the Appellant.

      T.T. Kunhitkansn for the Respondent.

      The Judgment of the Court was delivered by
                                                                       G
      MADON, J. On May 16, 1983, the Appellant died during the
pendency of this Appeal by Special Leave granted by this Court,
leaving behind him surviving two grand-sons and two grand-
daughters as his only heirs and legal representatives. · On
November 4, 1985, one grand-son and one grand-daughter filed
Civil Miscellaneous Petition No. 43065 of 1985 to br!Dg them-
selves and the other grand-son and grand-daughter on the record        H
        808             SUPREME COURT REPORTS       [1985] SUPP. 3 s.c.R.

        of the Appeal iil place of the Appellant. As the said application
A       was filed beyond time, they filed another Civil Miscellaneous
        Petition, namely, Civil Miscellaneous Petition No. 43066 of 1985,
        to condone the delay and to set aside the abatement of the
        Appeal. The question which falls to be determined is whether by
        reason of the very fact of the death of the Appellant the Appeal
        has abated, because if it has, the question whether the delay in
B       filing the two applications for substitution and for setting
        aside the abatement of the Appeal bY reason of the expiry of time
        should be condoned will not arise.

        The facts material for deciding the above .question may be
  briefly stated. The Appellant filed a suit in the Court of the
  Subordinate Judge, Ottappalam, against the Respondent claiming a
c sum of Rs. 5,500 as damages for defamation. The 1rial Court
  dismissed the suit with costs. The Appellant thereupon filed an
  appeal in the District Court of Palghat. The District Judge
  allowed the appeal and passed a decree awarding to the Appellant
  Rs. 500 as damages and proportionate costs both of the said
  appeal and suit. The Respondent then filed a second appeal
  against the decree of the District Judge and the Appellant filed
D his cross-objections thereto. The high Court of Rerala allowed
  the second appeal, reversed the decree of the Appellate Court and
  dismissed the Appellant's cross-objections as also the suit
  directing the parties to bear their own costs throughout. It is
  against this decree and judgment of the Rerala Righ Court that
  the present Appeal is directed.
E
        Order XXll of the Code of Civil Procedure, 1908, deals with
  death, marriage and insolvency of parties. As in the suit filed
  bY the Appellant there was only one plaintiff and one defendant,
  we are not concerned with the provisions of Order XXII other than
  those relating to a sole plaintiff or a sole defendant. Rule 1 of
F Order XXll of the Code provides that "the death of a plaintiff or
  defendant shall not cause the suit to abate if the right to sue
  survives", Thus, if the right to sue does not survive, the suit
  will abate on the death of the plaintiff, Under Rule 3 of Order
  XXll, where a sole piaintiff dies and the right to sue survives,
  the court on an application made in that behalf will cause the
G legal representative of the deceased plaintiff to be made a party
  and shall proceed with the suit. If, however, no application in
  that behalf is made within the time prescribed by law, the suit
  will abate. Under Rule 9(2), the court may set aside the abat•-
  ment of the suit on the application of the person claiming to oe
  the legal repres<,.itative of the deceased plaintiff if he proves
    K
              M.S. EZHUTBASSAN v. T.G. NAIR [MADON, J,]        809


that he was prevented by any sufficient cause from continuing the     A
suit. Clause (11) of section 2 of the Code defines "legal
representative" as meaning ~ alia "a person who in law
represents the estate of a deceased person". Rule 11 of Order
XXII provides as follows :

              "11, Application of Order to appeala. -                 B

             In the application of this Order to appeals, so far as
             may be, the word 'plaintiff' shall be held to include
             an appellant, the ~ord 'defendant' a respondent, and
             the word 'suit' an appeal."
                                                                      c
Thus, reading Rule l and Rule 11 of Order XXII together 1 in the
case of an appeal Rule l would rea4 "The death of an appellant or
respondent shall not cause the appeal to abate if the right to
sue survives." Thus, where there is only one appellant and he
dies during the pendency of the appeal, if his right to sue does
not survive, the appeal will abate and his legal representative       D
will have no right to be brought on the record to continue the
appeal.

     In the present case, if the appellant's right to sue h;i.d
survived on his death, his right to prosecute the present Appeal
would also survive, but if the right to sue would not have            E
survived on his death, this Appeal also would not have survived
and would abate. The question, therefore, is whether in a
defamation action the right to sue survives if the plaintiff
dies.

     Under the common Law, the general rule was that death of
                                                                      F
either party extinguished any cause of action in tort by one
against the other. This was expressed by the maxim "Actio
personalis moritur cum persona" ("A personal action dies with the
person"), However, by the Law Reform (Miscellaneous Provisio"'!)
Act, 1934, all causes of action vested in a person survive for
the benefit of his estate except causes of action for defamation
                                                                      G
or seduction which abate on the death of such person. As the Law
Reform (Miscellaneous Provisions) Act, 1970, abolished the right
of action for seduction of a spouse or a child from January 1,
1971, the only cause of action which would abate in England on
the death of a person suing would be now a cause of action for
defamation.
                                                                      H
        So far as this country is concerned, which causes of action
survive and which abate is laid down in section 306 of the Indian
Succession Act, 1925, which provides as follows :
    810            SUPRE};E COURT REPORTS       [1985] SUPP. 3 $.C.R.


A             "306. llelllands and rights of action of or against
              deceased     survive to and against executor or
              administrator. -

              All demands whatsoever and all rights to prosecute or
              defend any action or special proceeding existing in
B             favour of or against a person at the time of his
              decease, survive to and against his executors or
              administrators;   except    causes   of   action for
              defamation, assault as defined in the Indian Penal
              Code, or other personal injuries not causing the death
              of the party; and except also cases where, after the
              death of the party, the relief sought could not be
c             enjoyed or granting it would be nu5atory."

    Section 306 speaks of an action and not of an appeal. Reading
    section 306 alOlll; with Rules 1 and 11 of Order XXII of the Code
    of Civil Procedure, 1906, it is, however, clear that a cause of
    action for defamation does not survive the death of the
    appellant.
D
         Where a suit for defamation is dismissed and the plaintiff
    has filed an appeal, what the appellant-plaintiff is seeking to
    enforce in the appeal is his right to sue for damages for
    defamation and as this right does not survive his death, his
    legal representative has no right to be brought on the record of
E   the appeal in his place and stead if the appellant dies during
    the pendency of the appeal. The position, however, is different
    where a suit for defamation has resulted in a decree in favour of
    the plaintiff because in such a case the cause of action has
    merged in the decree and the decretal debt forrus part of his
    estate and the appeal from the decree by the defendant becomes a
F   question of benefit or detriment to the estate of the
    plaintiff-respondent which his legal representatives is entitled
    to uphold and defend and is, therefore, entitled to be
    substituted in place of the deceased respondent-plaintiff,

        Section 306 further speaks           only of   executors and
G   administrators but on principle         the same   position must
    necessarily prevail in the case of other legal representatives,
    for such legal representatives cannot in law be in better or
    worse position than executors and administrators and what applies
    to executors and administrators will apply to other legal
    representatives also.
H
               M.S. EZliUTliASSAN v. T.G. NAIR [NADON, J.]         811


     The position, therefore, is that had the Appellant died             A
during the pendency of his suit, the suit would have abated. liad
he died during the pendency of the appeal filed by him in the
District Court, the appeal would have equally abated because his
suit had been dismissed by the Trial Court. Had he, however, died
during the ~endency of the second appeal filed by the respondent
in the High Court, the appeal would not have abated because he           B
had succeeded in the first appeal and his suit had been decreed.
As, however, the High Court allowed the second appeal and dis-
missed the suit, the present Appeal by Special Leave must abate
because what the Appellant was seeking in this Appeal was to
enforce his right to sue for damages for defamation. This right
did not survive his death and accordingly the Appeal abated
automatically on his death and his legal representatives acquired        c
no right in law to be brought on the record in his place and
stead.

     For the above reasons, the Appeal is dismissed as having
abated. The Civil Niscellaneous Fetitions, namely, Civil
Miscellaneous Petitions Nos. 43065 of 1985 and. 43066 of 1985 are
alao dismissed as being not maintainable. There will be no order         D
as     to   the costs of   the Appeal and    the Civil Miscellaneous
Petitions.

     The an.aunt deposited by the Appellant as security for the
Respondent's costs will be refunded to the petitioners in the
Civil Miscellaneous Petitions for themselves and on behalf of the
two other heirs and legal representatives of the Appellant               E
mentioned in the Civil Miscellaneous Petitions.




S.R.                                                 Appeal dismissed.