Kanhaiya Lal, J.
1. The question for consideration in this case is whether the appeal filed by Chaudhri Mahtab Singh in a suit brought by him for damages for malicious prosecution, which was dismissed by the Court below, has abated by reason of his death. The suit arose out of a charge brought by the defendants Hub Lal and Gur Narain, against Chaudhri Mahtab Singh and certain other persons for having attacked them with lathis and caused them certain injuries. A trial followed, resulting in the acquittal of Chaudhri Mahtab Singh and the conviction of certain other persons for offences under Sections 141 and 323 of the Indian Penal Code. Hub Lal filed a revision against the order of acquittal of Chaudhri Mahtab Singh in the Court of the Sessions Judge of Mainpuri, but the learned Sessions Judge upheld the order of the trying Magistrate and held that Mahtab Singh was not present at the time of the riot and had been falsely dragged in.
2. In the present suit Mahtab Singh claimed Rs. 6,500 damages for malicious prosecution, and in the detail given by him in the plaint he demanded Rupees 2,000 as compensation for physical distress, Ra. 1,500 as compensation on account of loss of reputation (badnami) and Rs. 1,500 on account of costs incurred by him in his defence. The Court below found that the charge brought by Hub Lal and Gur Narain was not unfounded and that there was evidence to show that Mahtab Singh did take part in the affray.
3. Since the institution of this appeal Mahtab Singh died and subject to any legal objection as may be open to the other side, his legal representation, namely, his mother and widow, were brought on the record in his place. Suits for damages for defamation and for damages for malicious prosecution are in a sense allied. The institution of a criminal proceeding by one individual against another tends to a publication that he is guilty of the crime, for which he is being prosecuted, though the direct object may be either to secure his punishment or to harass or annoy him. There may be mental and physical distress caused by such a charge besides loss of reputation for the time being but the injury caused by such a charge is, at all events personal in its nature, and when the man to whom such injury has been caused dies without having instituted a suit for the recovery of compensation or before that suit has been adjudicated in his favour, his right to sue or to continue the suit does not survive to his heirs. A personal action dies with the man and a right to claim damages for malicious prosecution, arising out of a charge of rioting and grievous hurt such, as was brought in this case dies with the man who professes to have been injured by it.
4. In Rustomji Dorabji v. Nurse AIR 1921 Mad 1 where in a suit for malicious prosecution the defendant died after the institution of the suit, but before judgment was given in it, it was held that the right to sue did not survive to the legal representative within the meaning of Order 22, Rule 1 of the Code of Civil Procedure. In Murugappa Chettiar v. P. Pillai AIR 1921 Mad 405 where a person who sued for damages for malicious prosecution and obtained a decree but preferred an appeal claiming more damages than he had been awarded and died before the appeal was decided, it was held that the appeal filed by him could not be continued by his legal representatives. In Moti Lal v. Har Narayan AIR 1923 Bom 408 where a person who had filed a suit for damages for malicious prosecution had died after the institution of the suit, it was held that his legal representative could not continue the action to recover the pecuniary loss which he had suffered in defending himself against the prosecution. In Marwadi Moti Ram v. Samnaji AIR 1918 Mad 1100 where a suit for damages for malicious prosecution was dismissed and the plaintiff died during the pendency of an appeal preferred by him it was held that the appeal abated and his legal representative had no right to prosecute the appeal. The same view has been taken in Punjab Singh v. Ram Autar AIR 1920 Pat 841.
5. A reference has been made on behalf of the appellants to Section 89 of the Probate and Administration Act which has now been replaced by Section 306 of Act 39 of 1925. This provision however only authorizes an executor or administrator to recover all demands due to a deceased parson, and to enforce all rights to prosecute or defend any suit or proceeding in favour of or against the person at the time of his decease, except causes of action for defamation, assault or other personal injury not causing the death of the party concerned, and except also cases where after the death of the party the relief sought could not be enjoyed or the granting of it would be nugatory. The relief which Mahtab Singh was here claiming was a relief for the personal injury he professed to have suffered by reason of what he described as a false charge brought against him by the defendants-respondents. The expanses incurred in the defence were only incidental to any injury caused and if that cause of action does not survive, the claim for incidental expenses falls through with it.
6. Act XII of 1855 authorizes executors, administrators or legal representatives to sue and be sued for certain wrongs occasioning pecuniary loss to the estate of a deceased person where an action might have been maintained by such person for compensation for such wrong in his lifetime. But the wrongs there referred to are similarly wrongs caused to the estate, as distinct from personal injuries; for in the case of personal injuries, whether mental or physical, the cause of action dies with the death of the person injured. A reference has also been made to the decision in Krishna Behari Sen v. Corporation of Calcutta (1904) 31 Cal 993, where on a consideration of the terms of Section 89 of the Probate and Administration Act (V of 1881), a right to sue for compensation in respect of certain damages said to have been caused by the wrongful conduct of the Corporation of Calcutta was deemed to survive in favour of the legal representative of the person to whom the wrong was caused.
7. That was a case in which an order had been issued by the Corporation of Calcutta to a certain person calling upon him to show cause why an order should not be passed prohibiting him from using certain premises on the ground that they were unfit for human habitation, and on the failure of his prosecution a claim was laid by him for pecuniary loss incurred in the defence and for damages for mental trouble and annoyance and loss of time. On the death of that person the claim was pressed by his heirs, but they were directed to obtain letters of administration to his estate before any portion of that claim could be entertained as a claim under Section 89 of that Act. Apart from the peculiar circumstances of that case, that decision, as pointed out by Das, J., in the case of Punjab Singh v. Ram Autar AIR 1920 Pat 841 has never been subsequently followed by the Calcutta Court. Section 89 of the Probate and Administration Act and Act XII of 1855 are designed to protect suits for wrongs done to the property of a deceased person but do not extend that protection to compensation for personal injury the right to which dies with the death of the person injured.
8. It has been argued on behalf of the plaintiffs-appellants that the expenses incurred by Mahtab Singh in his defence were expenses paid by him out of his estate. But, as pointed out in Josiem Tiruvengadachariar v. Sami Aiyangar (1910) 34 Mad 76 the rule actio personalis moritur cum persona is not interfered with merely because the person incurred in his lifetime some expenditure of money in consequence of the personal injury. The cause of action for a suit for compensation for such personal injury arises when the injury is caused, and the costs incurred in meeting the defence are only incidental to the main cause of action and may help to measure the damages to which the person injured may be entitled. The cause of action for such damages is by no means different from the real cause of action arising from personal injury and the claim for the costs incurred in connexion with that cause of action dies with it too. This appeal must therefore be deemed to have abated and the right to sue does not survive to the legal representatives of the deceased. If any costs have been incurred by the defendants respondents since the substitution of the names of the appellants in the place of Mahtab Singh deceased, those costs will be charged against the appellants.
9. I agree in the order passed. The only question arising in this appeal is whether Mt. Pram Kunwar and Chaudhari Raghunath Singh are entitled to continue this appeal which was filed by Chaudhari Mahtab Singh. The provision of law applicable to the decision of this question is to be found in Order 22, Rule 1 as read with Rule 11 of the Civil P.C. These two rules provide that the death of an appellant shall cause an appeal to abate unless the right to sue survives the original appellant’s death. The right to sue was a right to sue for malicious prosecution. It is for the persons desiring to prosecute the appeal to show that such a right of suit survives the death of the person injured or complaining of injury. The appellant’s counsel has relied on Section 89 of the Probate and Administration Act which is now Section 306 of the Indian Succession Act of 1925. That section in effect provides that an executor or administrator may prosecute a suit where it is based on a cause of action other than one arising from defamation, assault or other personal injuries. The section however provides that if the personal injury caused the death of the person injured, this exception shall not prevent his executor or administrator from suing. It is clear that the word ‘personal’ in the section is not confined to the meaning ‘physical’ and that the exception will apply to a suit for malicious prosecution. There can be no suggestion that the injury caused by the malicious prosecution can have caused the death of the deceased. The exception, therefore, will operate, and this Section 306, so far from assisting the present appellants, is destructive of their claim to continue the appeal. It might also be urged that Section 306 does not really apply in this case as the appellants cannot claim to be the executors or administrators of the original appellant, all these persons having been members of a joint Hindu family.
10. Reliance is also placed on Section 1 of Act XII of 1855 which is an Act to enable executors, administrators or representatives to sue or to be sued for certain wrongs. It is sufficient to say that the right secured to an executor, administrator or representative to sue in respect as a wrong committed against the deceased person is restricted to a case where the wrong was committed within one year of that person’s death. This is not the case in the present appeal. The wrong was committed on the 1st of September 1921, and the original appellant died on the 8th January 1925. The appellants would invoke Krishna Behari Sen v. The Corporation of Calcutta (1904) 31 Cal 993 which certainly appears to be in their favour, but this decision is said not to have been followed in any other case by the Calcutta High Court or by any other High Court, whereas there are many decisions of various High Courts, some of which have been referred to by my learned brother, which are against the present contention. There can be no doubt that if the matter had to be decided on general grounds, the principle of actio personalis moritur cum persona would prevail. There is nothing in any Indian enactment which in my opinion suggests that it was the intention of the Indian Legislature to reject this principle.