I. MAHMUD, J.-This letters patent appeal is from a judgment and decree dated 20th March 1971 passed by a learned Single Judge of this Court on the Original Side (Noorul Arfin, J.) in Suit No. 181/1967 filed by the respondent, Amin Yousuf Nizami, against the appellant, in the sum of Rs. 29,200 as damages for personal injuries suffered by the respondent in an accident due to the negligence of the appellant's Managing Director.
The respondent was employed by the appellant as Weaving Master in the appellant's mills at S.I.T.E., Karachi on a monthly salary of Rs. 1,500. The case of the respondent was that on 19-12-196 while he was checking the Twisting Mechine in the mills, the appellant's Managing Director, Haji Haroon suddenly switched on the electric power, with result that the respondent's index finger of his right hand got caught and was crushed. The respondent had to undergo two operations on his finger by Surgeon A. Rahim and was unable to resume work until 30-6-1967. He, therefore, claimed Its. 28,800 as general damages for permanent total disability, Re. 2,600 for medical expenses and Rs. 10,500 for loss of earnings, making a total claim of Rs. 41,900.
The appellant in its written statement took conflicting pleas with regard to the accident by denying that the accident at all took place or that it occurred within the premises of the mills and during the course of the respondent's employment, and that if the accident did take place and the respondent sustained injury thereby, the injury was aggravated by the respondent's own negligence, Therefore it denied liability to pay any of the claims in suit. The appellant also pleaded a counter-claim of Rs. 7,500 on account of balance unpaid loss sad compensation for wilful absence from duty. After framing relevant issues, and examining the evidence produced by the parties, the learned Judge decreed the respondent's suit in the sum of Rs. 29,200 after allowing the counter-claim to the extent of Rs. 4,000. He found on the evidence that the respondent met with the accident and received the injury in question in the appellant's mill premises during the course of his employment and that it was caused due to the negligence of Haji Haroon of the appellant.
On the basis of the certificate issued by Surgeon Rahim. Who was examined in Court on behalf of the respondent, he assessed general damages at Rs. 21,600 that is, on basis of 8 % permanent incapacity and capitalised the loss on the monthly salary of Rs. 1,500 for a period of fifteen years.
He also allowed Rs. 2,600 for medical expenses and Rs. 9,000 for loss of earnings for the period tile respondent remained under total disability.
4. Being aggrieved by the judgment and decree, the appellant has filed the present Letters Patent Appeal. During the pendency of this appeal, however, the respondent died on 27-5-1973 and his legal Representatives have been brought on record.
5. The first submission of Mr. N. A. Pingar learned Advocate for the appellant, is that the appeal had abated under Order XXII. Rule 1, C. P. C. Upon the death of the, respondent pending appeal despite the decree passed in his favour by the trial Court on the ground that the right to sue did not survive as the cause of action being personal to the respondent, it died with his death, in accordance with the maxim "actio personalis moritur cum persona", namely that a personal action dies with the death of the person. Mr. Pingar submitted that in accordance with the well established principle of law that an appeal is a continuation of tae original proceed--ings, the cause of action in the suit continues to be the cause of action in the appeal. In support of this proposition qtr. Pingar cited case-law, but the only relevant case cited by him, was the observati ms of Edge. C. J. Of the Allahabad High Court reported in Muhammad Hussain and others v. Khushalo ILR 9 Al1. 131 which however is against his submission. The observations were (at p. 134) as follows :-- "Edge, C. J.-I have always understood the law to be that in those cases in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had bean obtained before the death of the plaintiff, in which case the benefit of the judgment would go to his leg-A representative."
On the other hand, Mr. Iqbal Kasi, learned counsel for the respondent, cited 67 R R 694 to the effect that after a decree has been passed, the cause of action changes into a matter of record and merges in the decree,' transit in rem judicatam. To the same effect is the observation of a Division bench in Mt. Lakhpati Kuer v. Doular Singh AIR19270udh156. It was observed that as soon as the Court pronounces judgment, the plaintiff's original right to sue, which is synonymous with cause of action, disappears if his suit has failed, while it merges in the decree, if he has succeeded; transit In rem judicatam. He also referred to Deorao Krishnarao AIR 1934 Nag.
119. In that case, the plaintiff was awarded a decree for damages in a suit for malicious prosecution, against which tire defendant filed an appeal. The plaintiff died. It was held that in a suit for malicious prosecution, the plaintiff's right, which is a mere right to sue for damages for a personal wrong, changes its character once it is merged in the decree. It then becomes a matter of record which is a right of a higher nature. The rights and liabilities arising under a decree awarding damages for malicious prosecution, therefore, continued when the plaintiff died during the pendency of the appeal against the decree. We may also add that a decree creates a judgment debt and enures for the benefit of the estate of the decree-holder. We agree with the proposition of law relied on by Mr. Iqbal Kaai and find no force in the submission of Mr. Pingar.
6. The next submission of Mr. Pingar is that in the absence of a finding that the accident was caused as a result of the negligence of the appellant, the decree could not be passed in his favour.
According to counsel, it was incumbent on the respondent as plaintiff, to establish negligence of the defendant and breach of duty on his part to take care. As stated earlier, while narrating the facts, the appellant had taken inconsistent pleas in its written statement by denying that any accident at all occurred in their factory causing injury to the plaintiff and, at the trial, the appellant took the plea that the accident was the result of contributory negligence of the plaintiff which it had failed to establish. This explains why there was no specific issue as to negligence of the appellant, but the finding of the learned Judge is still there on Issue No. 1, who after considering the evidence on record hold that the injury was caused 6o the respondent due to the negligence on the appellant's part. We, therefore, see no force in this contention.
7. No other ground was urged by Mr. Pingar. In the circumstances, the appeal is without merit. It is accordingly dismissed with no order as to costs. The bank guarantee furnished by the respondent at the time of withdrawal of the decretal amount from the Court is hereby discharged.