M. Anantanarayanan, J. - (1.) THESE two revision petitions involve a point of some interest, but upon which, there are clear authorities of this Court available deciding the issue. Very briefly stated, the facts are that, in both these revision petitions, the concerned party was attempting to obtain damages for what was essentially a malicious prosecution, viz., a malicious attempt to obtain the adjudication of the concerned plaintiff as an insolvent, which, for the time being at least, succeeded. In each of these cases, the averment were that the concerned petitioning -creditor was not acting bona fide but was acting with malice and without due cause for the alleged ground relied on as an act of insolvency, in order to get the concerned debtor adjudicated, thereby inflicting considerable injury and humiliation upon him. In each of these cases, which in substance was an action for damages for the injury inflicted by malice on a person, of course, in the wide sense, and not merely in the sense of a physical injury, the concerned defendant (wrong -doer) died pendente lite. The simple question is, whether the action can be continued against the legal representatives of the wrong -doer with regard to the assets of the wrong -doer that might be in their hands.
(2.) THIS matter came up for decision in Rustomji Borabji v. Nurse, I.L.R.(1921)Mad. 357 :, 40 M.L.J. 173, and it was held by the Full Bench that where the defendant dies before judgment is given in a suit for damages for malicious prosecution, or a malicious act, the right to sue does not survive within the meaning of Order 22, Rule 1, Civil Procedure Code. In other words, the right of suit cannot be continued against the legal representatives of the wrong -doer, with regard to the assets of the wrong -doer in their hands. The expression ' personal injuries not causing the death of the party ' in Section 89 of the Probate and Administration Act, which is also to be found in Section 306 of the Indian Succession Act, did not imply injuries to the body merely, " but all injuries " which do not necessarily cause damage to the estate of the person wronged." In laying down the law, on the subject, Kumaraswami Sastriar, J., referred to the maxim " actio personalis moritur cum persona "and also to Phillip v. Homfray, (1883) 24 Ch.D. 439. The dicta of Lord Bowen were quoted to the effect that the only case in which a remedy for a wrongful act could be pursued against the estate of the deceased person who has done the act, is the case where that estate has been swelled by the proceeds of the injurious or mischievous action. The learned Judge (Kumaraswami Sastriar, J.) said: When there is nothing amongst the assets of the deceased that in law or equity belongs to the plaintiff and the damages which have been done to him are unliquidated and uncertain, the executor of a wrong -doer cannot be sued merely because...an indirect benefit may have been reaped thereby.
(3.) THERE is no doubt whatever that, as far as this Court is concerned the judgment of the Full Bench is binding and that it continues to be the law. In Palaniappa Chettiar v. Raja of Ramnad, I.L.R. (1926) Mad. 208 :, 50 M.L.J. 34, it was held that a suit for damages for malicious prosecution of the plaintiff abated on his death. That, of course, is the converse case, but it seems to me to be clear that the principle actio personalis moritur cum persona applies with even greater force to the case where it is the defendant who dies pendente lite, and the legal representatives of the wrong -doer are sought to be made answerable to a claim arising from a personal injury committed by the defendant alone. In Mahtab Singh v. Hublal : I.L.R. (1926) All. 630, the same principle was affirmed and Rustomji Dorabiji Nurse, I.L.R. (1921) Mad. 357 :, 40 M.L.J. 173, has been referred to. The text of Phillips v. Homfray, (1883) 24 Ch.D. 439, has also been made available, and, the true limit and meaning of the rule that a personal action dies upon a defendant's death has been carefully enunciated in this decision. It is where the estate of the deceased wrong -doer has benefited from the wrongful act, in any manner, in any form of enlargement, that the original action can be continued notwithstanding the death of the defendant.;