The maxim 'Actio Personalis Moritur Cum Persona' mandates that claims for compensation regarding malicious prosecution are personal and abate upon the death of the parties involved; furthermore, a decree passed against a deceased defendant is a nullity that renders the entire joint decree against all defendants unsustainable.

Judgment

1. This is plaintiff’s Civil Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.05.1998 passed in civil first appeal No.27/1997 by the learned Additional District & Sessions Judge No. 2, Alwar whereby and where under, decree for recovery of Rs. 15,000/- along with interest, passed in favour of the plaintiffs, has been set aside. The decree for recovery of amount of Rs.15,000/- along with interest was passed vide judgment dated 10.09.1993 in civil suit No.34/219/1993, filed by the plaintiffs claiming compensation for their malicious prosecution in a criminal case arising out of FIR registered for offence(s) under Sections 323, 325 & 452 read with Section 34 of the IPC, wherein the plaintiffs were acquitted vide judgment dated 23.03.1990.

2. The brief facts of the case are that three plaintiffs jointly filed a civil suit for claiming compensation against three defendants, namely Rammilal, Kailash Chand and one Shivdayal, with averments that plaintiffs faced unwarranted prosecution before the criminal Court, initiated on behest of defendants through lodging an FIR dated 28.06.1981. In this FIR a charge-sheet for offence(s) under Sections 323, 325 & 452 read with Section 34 IPC was filed against them and they had to face a criminal trial and had to attend court proceedings for as many as about 70 times, due to which they faced mental and physical harassment as much as peculiar loss to their business. It was averred that since plaintiffs have been acquitted vide judgment dated 23.03.1990, hence, they prayed to award compensation of Rs.15,000/- for malicious prosecution.

3. It is noteworthy and not in dispute that a cross FIR was also lodged by plaintiffs against defendants, in respect of the same incident of scuffle/quarrel ensued between the parties on 28.06.1981. It was a free fight between the parties, hence, cross FIRs from both sides were lodged against each other.

4. It appears that in the suit, ex-parte proceedings were drawn against defendants, and the suit was decreed in favour of the plaintiffs vide judgement dated 10.9.1993. Then, execution proceedings were initiated by plaintiffs and when the attachment warrant was served upon the defendants, one of natural son of defendant No.3-Shivdayal, viz. Naresh Kumar, challenged the judgment and decree dated 10.09.1993 by way of filing civil first appeal.

5. It appears that the civil first appeal filed by Naresh Kumar, son of defendant No.3-Shivdayal, was belated, nevertheless the appellate court condoned the delay and found the first appeal maintainable on behalf of son of defendant No.3, on the ground that defendant No.3-Shivdayal had passed away during the suit in the year 1992 and thereafter, decree was passed on 10.09.1993 against defendant No.3.

6. It may be observed herein, as is revealed from the record and noticed by the first appellate Court that the service of summons of suit upon any of the defendants, were not served in person, rather summons were returned unserved with report that defendants have shifted to Delhi and do not reside at the given address. Yet, it appears that the summons were affixed and based on the affixing report of process server, ex-parte proceedings were drawn against defendants.

7. Be that as it may, the first appeal preferred by on behalf of Naresh Kumar, son of original defendant No.3-Shivdayal, was considered on merits and it was categorically observed by the first appellate Court that plaintiffs miserably failed to prove that the FIR, on behest of defendants, was lodged fa