Second appeal filed by LRs of deceased plaintiff.

In this second appeal the few facts which I have to state for the purpose of the decision are as follows: The suit was for damages for malicious prosecution which the trial Court decreed with costs. On appeal taken by the defendant the decree of the trial Court was reversed and the suit dismissed with costs. The plaintiff having thereafter died, his legal representatives preferred this second appeal to this Court. After the institution of the second appeal, the defendant having died, the appellants herein have brought the respondents before me as legal representatives.

To the hearing of this second appeal an objection in limine has been taken by the respondents founded on the rule actio personalis moritur cum persona. I have heard arguments not only on the objection but also on the merits of the second appeal. As regards the latter I may at once say that there is very little, if any, of substance in the argument for the appellants. The report of the commissioner appointed by the lower appellate Court is said to be additional evidence taken in contravention of Order 41, rule 27, Civil Procedure Code by which the appellate judgment is vitiated. There is however other evidence in support of the findings of the lower appellate Court on the question of the existence of malice and the absence of reasonable and probable cause which I am not therefore prepared to disturb.

Concerning the preliminary objection raised by him learned counsel for the respondents has relied on Maniramlala v. Mt. Chalti Bai and another1 while learned counsel for the appellants has relied as against it on Nga Hyet Sein v. Mi Kyin Mya2 a decision of the Judicial Commissioner of the Upper Burma Judicial Commissioner’s Court not as a decision citable to this Court but for its reasoning which counsel seeks to adopt as his own. It is not disputed by counsel on both sides that the present case is sufficiently indistinguishable on facts from each of those cases, although there unlike here the original respondent in the first appeal preferred a second appeal and died afterwards and the respondent in the second appeal did not die during the pendency of the second appeal but remained alive and on record down to the decree of the second appellate Court. It is not disputed therefore that the decision of the point must go in favour of the respondents or the appellants according to the one decision or the other is accepted by me as correct.

Before dealing with the two decisions it is necessary to ascertain the provisions of the Civil Procedure Code which govern the situation. They are to be found in Order 22, rules 1 and 11, Civil Procedure Code. Rule 1 is as follows:

“The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives”.

Rule 11 is in the following terms:

“In the application of this order to appeals, so far as may be, the word ‘plaintiff’ shall be held to include the appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal”.

“The right to sue” occurring in rule 1 has been, in my opinion, rightly interpreted by Fulton, J., in Gopal v. Ramachandra1, as meaning the right to seek relief. Says the learned Judge at page 603 of the report:

“What, then, is the meaning of the words ‘right to sue’ in that section? (Section 361 of Act XIV of 1882). If the words are synonymous with ‘cause of action’ as used in Order L referred to in Twycross v. Grant2, that decision, may doubtless be appealed to in order to show that ‘cause of action’ means the plaintiff’s original cause of action. But they appear not to be synonymous. In Act VIII of 1859 and Act X of 1877 the words ‘cause of action’ were used in sections 99 and 361 corresponding with section 361 of the present Code, in which the words ‘right to sue’ have been substituted. It seems useless therefore, in regard to this point to refer to Twycross v. Grant2, which depends on words which the Legislature has superseded. It is obvious how inconvenient the words ‘cause of