The maxim actio personalis moritur cum persona applies to actions for damages for personal wrongs, and the right to sue is extinguished on the death of either party to such action.

K. JAYACHANDRA REDDY, J.

( 1 ) THE interesting question that fall for consideration in this civil revision petition is whether the legal representatives of a deceased tortfeasor can be brought on record in an action for damages for personal wrong. To decide this question it becomes necessary to consider the scope and applicability of the maximum actio personalis moritur cum persona.

( 2 ) FOR a better appreciation of the question the necessary facts may be stated. The petitioner filed the suit against two doctors and the State of Andhra Pradesh claiming a sum of Rs. 50, 000/- as damages alleging that the doctors were reckless and negligent in performing an operation on him for tonsilectomy. The 2nd defendant was the surgeon and the 3rd defendant was the anaesthetist working in the Government General Hospital, Guntur. After the suit was partly tried the 3rd defendant died on 16 4-73. The petitioner filed the interlocutory application to bring the legal representatives of the 3rd defendant, viz. , the wife, two sons and a daughter, as parties to the suit. They opposed the application on the ground that the action being a personal one, the suit abated so far as the 3rd defendant is concerned. The lower Court dismissed the application filed by the petitioner applying the maxim and holding that the suit abated against the 3rd defendant.

( 3 ) IN this petition Sri A. Hanu- mantha Rao, the learned counsel for the petitioner, has contended that a fiduciary relationship exists between a doctor and a patient and so the lower Court ought not to have applied the maxim actio personalis moritur cum persona to the facts of the case. He has also contended that there is an implied contract between the doctor and the patient and the legal representatives succeeding to the estate of the doctor should be made parties. Finally it is contended that a benefit accrues to the estate of the deceased from the wrongful act committed by him and as such his legal representatives must be made liable.

( 4 ) IN Rustomaji Dorabji v. W. H. Nurss (1) (AIR. 1921 Madras, 1 (F. B.) ilr. 44 Madras, 357. , it is held. "if a defendant in a suit for malicious prosecution dies before judgment is given in the suit, the right to sue does not survive within the meaning of Order 22 Rule 1, so as to prevent the abatement of the suit. , personal Injuries" means wrongs to the person which do not necessarily cause damage to the estates of the person wronged". The learned judges have also held that the common law rule was applied in all its strictness by courts in India and the applicability of the maxim to India is recognised. In the same case Kumaraswami Sastri, J. in a separate but concurring judgment observed thus:"the maxim actio personalis moritur cum persona is with certain limitation as old as the English Law, and the maxim has been inflexibly applied to actions essentially based on tort. The rule of common Law is that you could not sue executors for a wrong committed by the testator for which you could only recover unliquidated and other damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The only case in which, apart from the question of breach of contract express or implied, a remedy for wrongful act can be pursued against the estate of a deceased person who has done the act, appears to be those in which property or the proceeds or value of property belonging to an other have been appropriated by a deceased person and added to his own estate or moneys. In such cases whatever the form of action, it is in substance brought to recover property or its proceeds or value and the amendment ; could be made to suit in form as well as in substance. In such cases the action arising out of a wrongful act does not die with the person. The property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him can be traced after his death to his assets and recaptured by the rightful owner then".

( 5 ) THE decisions clearl

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