A suit for damages for breach of contract is not a personal action, and the right to sue survives to the heirs of the deceased plaintiff.

( 1 ) THIS application under S. 115 of the Code of Civil Procedure filed at the instance of the defendants, the Executive Director of Usha Sewing Machine Works Ltd. , and the Jay Engineering Works Ltd. , is directed against Order No. 66 dated Nov. 12,1984 of the 3rd Court of the Assistant District Judge, Alipore passed in the Suit No. 52 of 1981. By the said order, the learned Assistant District Judge allowed the application for substitution of the heirs of the deceased plaintiff No. 2 Birendra Chandra Roy.

( 2 ) THE said suit was instituted by the said Birendra Chandra Roy, since deceased, and the plaintiff No. 1 Sha Sha Bindu Roy, who were employees of Jay Engineering Works ltd. , inter alia, praying for a declaration that the notices of their superannuation before their attaining the age of 60 years were illegal, inoperative and void; for a permanent injunction restraining the defendants from in any way interfering with plaintiffs' services under the defendant company; for a mandatory injunction directing the defendants to withdraw and/or rescind the notices of retirement and for damages on the basis of total emoluments on and from the first day of Jan. 1981, till the attainment by the plaintiffs of the age of 60 years.

( 3 ) THE said Birendra Chandra Roy, the plaintiff No. 2, died intestate on July 10, 1984. The opposite parties Nos. 1 and 2, the heirs of the deceased plaintiff No. 2, made an application for their substitution in the suit in place of the deceased plaintiff No. 2. The said application was opposed by the defendants petitioners on the ground that the suit in so far as it was one for declaration and injunctions was a personal action and, accordingly, the right to sue for the said reliefs did not survive to the heirs of the deceased plaintiff No. 2. It was submitted that the application for substitution should be dismissed on that ground.

( 4 ) THE learned Assistant District Judge overruled the contention of the petitioners. He took the view that there was also a prayer for damages in addition to the reliefs for declaration and injunctions and, therefore, the right to sue survived to the heirs of the deceased plaintiff No. 2. In that view of the matter, the learned Assistant District Judge allowed the application for substitution. Hence this revisional application under S. 115 of the Code of Civil Procedure.

( 5 ) MR. Bhaskar Bhattacharjee, learned Advocate appearing on behalf of the petitioners submits that the learned Assistant District Judge was wrong in entertaining the view that a suit for damages for breach of contract was not a personal action. He has placed strong reliance upon the maxim "actio personalis moritur cum persona" and submits that the suit in so far as it is also a suit for damages is hit by the said maxim. In other words, his contention is that a suit for damages for breach of contract is a personal action, so that on the death of the plaintiff the right to sue does not survive to the heirs of the deceased plaintiff. It is submitted that the learned Judge exercised a jurisdiction not vested in him by law in allowing the application for substitution of the opposite parties Nos. 1 and 2, who are the heirs of the deceased plaintiff No. 2, holding erroneously that on the death of the plaintiff No. 2, the right to sue survived to his heirs.

( 6 ) THE maxim "actio personalis moritur cum persona" embodies within it the English principle that a personal action dies with the plaintiff. The said maxim is inapplicable in India, except to the extent it has been adopted in the statutes. The exceptions to the non-applicability of the maxim are contained in S. 306 of the Indian Succession Act, 1925. S. 306 provides as follows :"306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in 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 defamati