P. KODDANDA RAMAYYA, J.

( 1 ) THE second plaintiff is the appellant in this appeal. The suit wasfiled by the two plaintiffs for partition of their shares and separate possession. Pending the suit, the first plaintiff died, but the Legal Representatives of the first plaintiff are not brought on record. Hence an application was filed by the 6th defendant for declaration that the suit is abated so far as the first plaintiff is concerned and asked for a declaration that as a consequence of such abatement the entire suit was abated. The Court granted the said relief holding that the suit is abated so far as the first plaintiff is concerned and in consequence thereof, the entire suit is abated and consequently dismissed the suit as abated in its entirety. Hence the appeal by the second plaintiff.

( 2 ) IT is seen the sole question tor determination is whether partialabatement has caused total abatement of the suit. For this purpose we must look to Order XXII, Rules 1, 2 and 3 which are in the following terms :1. "the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 2. Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue surivives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

( 3 ) (1) Where one of two or more plaintiffs dies and the right tosue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or a sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of "the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 3. The provisions clearly disclose, (1) the suit shall not abate if the right to sue survives; (2) If the right to sue survives to the surviving plaintiffs, the Court shall proceed to enquire after making record of the said fact ; (3) if the right to sue does not survive to the surviving plaintiffs alone and the legal representatives of the deceased party are not brought on record, the suit shall abate so far as the deceased-plaintiff is concerned.

( 4 ) THUS it is clear that this rule (3) will apply only when the right tosue does not survive (where there are several plaintiffs) to the surviving plaintiffs alone, but survives either to surviving plaintiffs jointly with others or exclusively to others. On the other hand, if the right to sue survives to the surviving plaintiffs, the case is not within this rule. The word alone occurring in order XXII Rule 3 should mean to the exclusion of others . However, so long as the right to sue, survives to the surviving plaintiffs also, there cannot be a total abatement of the suit. In fact, there cannot be an abatement if the cause of action survives. The general result of application of the common law maxim actio personalis moritur cum persona was that the. representative could not sue or be sued for a wrong commuted against or by the deceased for which unliquidated damages only would be recoverable. Barring the cases governed by the above maxim, all causes of action vested in a person survive for the benefit of the estate. A suit for partition is a suit for property and the maximum actio personalis mortitur cum persona has no application to it.

( 5 ) ORDER XXII Rules 3 (2) and 4 (2) enacts that there shall be anabatement so far as the deceased pe

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