V. R. NEWASKAR, J.

( 1 ) THIS is a plaintiff's second appeal. His suit was for recovery of Rs. 898-2-0 as damages for loss caused to his salt-bags by the wrongful act of trespass upon the premises in possession as a sub-tenant. The alleged act of trespass is said to have occurred on 14-8-1948 and consequent the loss to the goods within two or three days of that date. The suit was filed on 13-8-1951. The claim for damages consisted of Rs. 150/- as loss due to 10 out of 102 salt-bags having been pilfered away, Rs. 98-2-0 for the loss caused due to washing away of the salt in the remaining 92 bags due to rains, Rs. 150/- as expenses in connection with a criminal complaint filed by the plaintiff against the defendants namely his own landlord, that is the principal tenant and against the primary landlords as also against their Munim and Rs. 500/- as general damages for loss of reputation etc.

( 2 ) THE trial court granted a decree for Rs. 548-2-0 after disallowing claim in respect of the expenses of criminal litigation Rs. 150/- and a part of the claim for general damages amounting to Rs. 200/ -.

( 3 ) ON appeal by the defendants the learned District Judge dismissed the claim in its entirety on the count of limitation although on merits he expressed the opinion that apart from the claim for Rs. 83/- for the loss due to washing away of a portion of the salt from the salt-bags the rest of the claim was untenable.

( 4 ) THE plaintiff now has come up in second appeal.

( 5 ) MR. Bharucha for the plaintiff contended that the claim was wrongly held barred by limitation as Article 36 upon which the lower appellate court relied had no application in the circumstances of the present case. The appropriate Article applicable was Article 39 or 49 and the claim was within time. He also contended that the claim for general damages was disallowed on erroneous grounds. Unfortunately during the pendency of this appeal plaintiff died. His legal representatives were no doubt brought on record on 15-4-1959 but due to this new situation Mr. Sanghi for the respondents has raised a preliminary objection that the claim in this case being based for personal action it ought to come to an end by the death of the plaintiff and the cause of action cannot survive to the legal representatives of the deceased plaintiff. The learned counsel relied upon the decisions reported in AIR 1952 Nag 408, Baboolal v. Ramlal; AIR 1951 Mad 733, Irulappa v. Madhava; AIR 1937 Nag 216, Maniramlala Baliramlala v. Chattibai and some other decisions. Mr. Bharucha on the other hand contended that since at an earlier stage i. e. in the trial court the plaintiff had succeeded, the right to sue survived although at the stage of first appeal the plaintiff had wholly lost.

( 6 ) NOW since the plaintiff has died at the stage of second appeal and the claim being one in tort for damage caused to the plaintiff's salt-bags due to alleged tortious act of the defendants as also for injury to plaintiff's reputation which may include, as Mr. Sanghi suggests, mental suffering undergone by the plaintiff two questions arise-for consideration :

(1) How far the maxim 'actio personalis moritur cum persona' will apply to the claim in question? (2) Does the fact that the plaintiff, though wholly unsuccessful in the first appeal, had obtained a decree for Rs. 548-2-0 in the trial court make any difference in case the maxim is applicable to any part of the claim?

( 7 ) ON the first question, since the plaintiff has died after the Indian Succession Act 1925 bad been applied to these parts by the Part B States Laws Act of 1951, all that we may have to look to, is the wording of Section 306 of that Act. That Section provides: "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 defamation, assault, as defined in the Ind

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