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Judgment
When the allegations in the plaint are carefully considered, the suit must in substance be regarded, as held by the District Judge to be one for
recovery of damages for distraint illegally levied by the deceased Zemindar, the original 1st defendant on certain moveables belonging to the
plaintiff, some of which either perished or deteriorated owing to the negligence of the Zemindar''s servants while the rest was misappropriated by
those servants. It cannot be regarded as a suit for recovery of specific moveables appropriated by the original 1st defendant or their value. The
nature of the action being such as we have stated the maxim actio personalis moritor cumpersona would apply in the absence of any statutory
provisions to the contrary. The scope of this doctrine is thus stated by Bowen L.J. in Phillips v. Homfray (1883) 24 Ch. D. 439 ""the only cases in
which, apart from question of breach of contract, express or irriplied, a remedy for a wrongful act can be pursued against the estate of a deceased
who has done the act appear to us to be those in which the property or the proceeds or the value of property belonging to another have been
appropriated by the deceased psrson and added to his own estate or moneys."" In India no doubt this rule of common law has been to some extent
modified by Act XII of 1855 which enacts that an action may be maintained against the representatives of a deceased person for any wrong
committed by him in his life time for which he would have been subject to an action but as pointed out in Hari Rao Ramdas v. Ramdas Mathuradas
ILR (1889) B. 677 which has been followed in Ramchoda Das v. Rukhmanibhoy ILR (1905) M. 487 Section 2 of that Act which provides that
no action commenced under the provisions of this Act shall abate by reason of the death of either party has no application to a suit which was
instituted against the wrongdoer himself in his life time as such an action could not be said to have been commenced under the provisions of the
Act. Such suits are still governed by the rule enunciated in Phillips v. Homfray (1883) 24 Ch. D. 439.
2.The appeal is therefore dismissed with costs.