Perumal Pillai vs Perumal Chetty and Another

Murray Coutts Trotter, Kt., C.J.—The short point in this case arises in this way. The plaintiff obtained a preliminary decree in a mortgage

suit on the 18th November, 1921. He then died on the 25th February, 1922, before a final decree had been passed. No application had been

made or acceded to within three months of the plaintiff''s death to add his legal representatives to the record. It is contended that in the

circumstances the suit must be deemed by the provisions of Order 22, Rule 3, to have abated. The question referred to us is whether on a proper

construction of the authorities that is the true position. The most illuminating principle which should guide us appears to me to be contained in the

case of Chapman v. Day (1883) 48 L.T. 907 tried before Pollock, B., and Justice Lopes, J., and the passage that appears to put it very shortly is

contained in the judgment of Lopes, J.

It is said that, the defendant having died, the maxim Actio personalis moritur cum persona applies, I think it does not apply in such a case as this. I

think ''action'' means ''right of action'' and if that is the true way of looking at it, the right of action here had been determined before the death of the

defendant.

Applying that principle, it would appear that the right of action as there defined by the learned Judge is determined by a preliminary decree

because the final decree is only by way of working out in detail the principles laid down and determined in the preliminary decree. The decision in

Chapman v. Day (1883) 48 L.T. 907 has been followed and applied in this country in the case of Gopal v. Ramachandra ILR (1902) B. 597.

There was a difference of opinion at the outset, then Crowe, J., was called in and he based his judgment on the decision in Chapman v. Day ILR

(1921) M. 872 : 1921 42 M.L.J. 301. In Madras a contrary view seems to have been taken and there is no doubt about it that Subbarayudu v.

Ramadasu ILR (1921) M. 872 : 1912 42 M.L.J. 301 is a definite position adverse to the respondents in this reference. The learned Judges who

referred this case to us thought that by implication the authority of Subbarayudu v. Ramadasu ILR (1921) M. 872 : 1921 42 M.L.J. 301 had been

very much shaken by the Privy Council''s decision in AIR 1924 198 (Privy Council) Without discussing that case in detail, it seems clearly to

proceed on the basis that a preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working

out of accounts and so forth is a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally

determined (subject, of course, to appeal) in the preliminary decree. We think that the principle underlying that case where after preliminary decree

the plaintiff did not appear when the case came on for final decree and the case was struck out, a course which the Privy Council disapproved on

the grounds we have mentioned, applies by analogy just as much to a case where a man does not appear because he cannot appear since he is

dead. In our opinion all that is really important in these matters is to have a settled rule of practice. The present case is obviously a casuo omissus

from the CPC and probably nobody had thought of providing for it. In these circumstances all that is important is that we should endeavour to

formulate the most logical rule we can and follow as best we may the nearest analogies. We therefore think that Subbarayudu v. Ramadasu (1921)

ILR 45 M. 872 : 42 M.L.J. 301 is no longer good law and we must answer this reference by saying that in our opinion Order 22, Rules 3 and 4

do not apply to the present state of circumstances. The case will be referred back to the Division Bench with that opinion.