1. We think that when a Court treats a suit having abated owing to the cause of action not surviving, there is no right in the plaintiff's legal representative to apply under Order XXII, Rule 9, Clause (2), of the Civil Procedure Code to set aside that abatement. Clause (2) of Rule 9 applies only to cases where the abatement takes place in consequence of an application not having been made 'within the time limited by law' to bring in the legal representatives. This seems to us to be quite clear from the second sentence in Clause (2) of Rule 9 which refers to the setting aside of 'the abatement' (that is, the abatement mentioned in the 1st sentence) if it be proved that he (the legal representative) was prevented by any sufficient cause from continuing the suit.
2. We think that an order of the Court declaring that a suit has abated owing to the cause of action not surviving is a decree, as it determines that the right of the plaintiff ceased to exist on his death and, therefore, it falls within the definition of a decree, there being no appeal provided for in the Code from that order 'as an appeal from an order' [see exception (a) to Section (2) of the Civil Procedure Code].
3. The District Munsif, therefore, acted illegally in entertaining and adjudicating on the incompetent application filed under Order XXII, Rule 9, and the District Judge also acted illegally in adjudicating upon such an application on appeal. Both Courts ought to have rejected the petition filed under Rule 9 in March 1912, leaving the plaintiff's legal representatives to appeal against the prior order and decree of 19th December 1911 which dismissed the suit as having abated and on the ground that the right to sue did not survive.
4. We set aside the order of the lower Appellate Court and restore that of the District Munsif dismissing the respondent's Application, though the ground of our decision is different from that relied on by the District Munsif.
5. It is urged that we might treat the appeal to the District Court against the order of the District Munsif on the petition of 7th March 1912 (Interlocutory Appeal No. 259 of 1912) as an appeal against the decree of the District Munsif dismissing the suit passed on 19th December 1911. It is difficult to treat an appeal against an order passed on one date as an appeal against a decree passed on a different and prior date and there is also the fact that the Court-fees paid (8 annas) cannot cover the fees due on the memorandum of appeal against the decree (that is Ra. 37.8). Further, we are of opinion that treating the appeal to the lower Appellate Court as an appeal against the decree of December 1911, the lower Appellate Court was in error in holding that the cause of action for a suit for damages caused by the malicious prosecution of the manager of an undivided Hindu family could survive to the remaining co-parceners even as regards that portion of the claim which related to the loss inbound by the estate in the defence of the criminal case brought against the manager. The cause of action is a single and indivisible one and it is a personal action, though the injury caused to the plaintiff may not be a personal injury in the sense of an injury to the physical or bodily personality. Section 89 of the Probate and Administration Act admittedly cannot be availed of, as the survivors cannot obtain Letters of Administration to the undivided properties and the deceased left no estate, all his interests having lapsed to the other members of the family by survivorship at the moment of his death. Nor could the Legal Representative Suits Act, XII of 1855, apply for three reasons. Firstly, because the wrong which survives to the legal representatives must 'have been committed within one year before his death' (that is, the death of the plaintiff) whereas in this case the wrong was committed more than one year before the plaintiff's death; secondly, because Section 1 of the Act of 1855 relates to the maintainability of a suit by the representatives and not to the continuation of a suit already instituted and thirdly, because the surviving members of an undivided family are not representatives of the deceased member.
6. There will be no order as to the costs of the petition.