MELEPURATH SANKUNNI EZHUTHASSAN versus THEKITTIL GOPALANKUTTY NAIR

Citation: [1985] SUPP. 3 S.C.R. 805 · Decided: 29-11-1985 · Supreme Court of India · Bench: D.P. MADON · Disposal: Dismissed

Judgment (excerpt)

805 
MELEPVRAl'll SANKIJNNI EZlllJTllASSAN 
A 
v. 
NOVEMBER 29, 1985 
[D.P. MADON AND G.L. OZA, JJ.] 
B 
Abatement of Appeal - Maxim "Actio Fersonalis lloritur cum 
persona" (A personal action dies with the person), applicability 
of - Right to sue/prosecute appeal whether survives. on the death 
of the appellant in an appeal ar.ising out of a defamation case -
Right to be represented by Legal Representatives, application 
c 
maintainability. of -
Code of Civil Procedure, 1908 Order XXII 
Rules 1 and 11 read with section 306 of the Indian Succession 
Act, 1925 and Order XV Rules 32 and 33 of the Supreme Court 
Rules, 1966. 
· 
The appellant filed a suit in the Court of the Subordinate 
D 
Judge, Ottappalam againat the Respondent cldmfng a sum of Ila. 
5500 as damages for defamation. The Trial. Court dismissed the 
suit with costs. In First appeal preferred by the appellant, the 
District Judge allowed the appeal, decreed the suit and awarded 
Rs. 500 as damages and proportionate costs both of the said 
appeal and suit. In the Second appeal filed by the Respondent, 
E 
the High Court of Kerala reversed the decree of the District 
Judge and dismissed the cross objections filed by the appellant. 
Against the said judgment with no order as to costs throughout 
Special Leave was granted by the Supreme Court in 1972 and during 
the pendency of the Civil Appeal, the appellant died leaving 
behind him surviving two grandsons and two grand dalJ8hters. On 
November 4, 1985 one grandson and one grand-daughter moved two 
F 
applications-one to bring the grand-sons and grand-dalJ8hters on 
record as Legal Representati vea and the other to condone the 
delay in filing the said application and to set aside the 
abatement of the Appeal. 
Dismissing the petitions and the appeal, the Court 
G 
HELD: 1.1 Reading section 306 along with Rules 1 and 11 of 
Order XXII of the Code of Civil Procedure, 1908, it is clear that 
s cause of action for defamation does not survive the death of 
the appellant. [810 0-D) 
A 
B 
806 
SUPREME COURT REPORTS 
[1985] SUPP. 3 s.c.R. 
1.2 l'lllere a suit for defsmation is dismissed and the 
plaintiff has filed an appeal, what the appellant-plaintiff 1a 
seeking to enforce in the appeal is his right to sue for clallages 
for defsmation and as this right does not survive his death, bis 
legal representative has no right to be brought on the record of 
the appeal in his place and stead if the appellant dies during 
the pendency of the appeal. The position, however, is different 
where a suit for defsmation has resulted in a 
decree in favour 
of the plaintiff because in such a case the cause of action has 
merged in the decree and the decretal debt forms part of h1a 
estate and the appeal from the decree by the defendant becomes a 
question of benefit or detriment to the estate of the plaintiff-
respondent which his legsl representative is entitled to uphold 
C and defend and is, therefore, entitled to be substituted in place 
of the deceased respondent-plaintiff, [810 D-F) 
1.3 Though section 306 speaks only of executors and 
administrators, on principle the same position must necessarily 
prevail in the case of other legal representatives, for such 
legal representatives 
cannot in law be in better or worse 
D position than executors and administrators and what applies to 
executors 
and 
aclministrators 
will 
apply 
to 
other 
legal 
representatives also. [810 G-H] 
E 
2.1 Rule l of Order XXll of the Code provides that "the 
death of a plaintiff or defendant shall not cause the suit to 
abate if the right to sue survives." Thus, if the right to sue 
does not survive, the suit will abate on the death of the 
plaintiff, Under Rule 3 of Order XXII, where a sole plaintiff 
dies and the right to sue survives, the court on an application 
made in that behalf will cause the legsl representative of the 
deceased plaintiff to be made a party and shall proceed with the 
F suit. If, however, no application in that behalf is made within 
the time prescribed by law, the suit will abate. Under Rule 9(2), 
the court may set aside the abatement of the suit on the 
application of the person cl aiming to be the legal representative 
of the deceased plaintiff if the proves that he was prevented by 
any sufficient cause from continuing the suit. Rule 11 furtjler 
G provides the applicability of Order XXll to appeals as well 
substituting the words 
"plaintiff", 
"defendant" and suit by 
"appellant", 
"respondent" 
and 
"appea

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