Full Judgment
R.R. Yadav, J.
1. The present Second Appeal has come up for disposal of substitution application moved by the appellant under Order 22 Rule 4 CPC alleging therein that as the sole respondent Roop Chand had expired on 24th July 1996 at Jodhpur therefore his legal representatives disclosed in Paragraph 1 of the substitution application be substituted in his place.
2. The brief facts necessary for disposal of the present substitution application are that this appeal arises out of a suit for damages on account of malcious prosecution filed by the appellant Baldev Prakash against the deceased respondent Roop Chand for Rs. 10,000/-. According to plaint averments the defendant Roopchand lodged F.I.R. against the plaintiff-appellant for an offence Under Section 379 I.P.C. by making the allegation that on 14.3.79 the plaintiff stole away a pipe. The plaintiff-appellant alleged in his plaint that he remained in custody from 17.3.79 to 19.3.79. He claimed Rs. 9,500/- as general damages on account of mental agony and Rs. 500/- as special damages.
3. The deceased defendant-respondent denied all the allegations made in the plaint and justified the FIR lodged against the plaintiff-appellant.
4. The learned trial court decreed the suit on 30.7.88 but on an appeal filed by the deceased defendant-respondent the learned Additional District Judge No. 2, Jodhpur allowed the appeal on 5.9.92 and dismissed the suit for malicious prosecution.
5. Aggrieved against the judgment of the First Appellate Court, this Second Appeal has been preferred.
6. The basic question the appeal shall be deemed to be abated as cause of action does not which arises in this appeal is whether the cause of action survives survive after death of sole defendant-respondent Roop Chand.
7. It is well to remember that in those cases where suit for malicious prosecution is filed the right to get compensation for malicious prosecution is personal to the person wronged and to such a right the maxim actio personalis moritur cum, persona which means a personal right of action dies with the person, fully applies.
8. I am of the view that where a person to whom wrong has been done dies before suing the wrong-doer, his heirs, executors or administrators cannot after his death maintain an action for the same relief against the wrong-doer. In such a case wrong-doer is released from all liabilities for his tortious act. In such cases even where the injured person has brought a suit in his lifetime but he dies before a decree has been obtained in his favour such suit would abate and his legal representatives cannot be allowed to continue his suit after his death for the right to sue in such a case being personal to the deceased does not survive.
9. The principle of actio personalis moritur cum persona has equal application in those cases were after dismissal of suit the plaintiff files an appeal but dies during the Pendency of the appeal. In such cases also appeal would abate and the legal representatives of plaintiff cannot be brought on record to continue the appeal.
10. I am of the view that the aforesaid principle of law would equally apply in those cases where although the suit was decreed by the trial court but and appeal from the decree, the decree is reversed and the suit is dismissed an thereafter Second Appeal is preferred. It is held that during tendency of such Second Appeal, either plaintiff/appellant dies or defendant/respondent dies, Second Appeal would abate by extending the principle of transit in rem judicatum.
11. In such a situation therefore the appeal cannot be allowed to continue even in respect of cost or other incidental relief which are merely incidental to the main relief.
12. As a result of the aforementioned discussions the substitution application moved by plaintiff-appellant is hereby rejected as the present appeal stands abated as the cause of action does not survive after death of defendant-respondent Roop Chand.