JUDGMENT K. Sadasivan, J. The sole question calling for decision in this civil miscellaneous appeal is whether an action for damages for misappropriation of the usufructs from the plaintiff property by the defendant would survive after the defendant death against his heirs. The suit itself was dismissed by the trial Court but in appeal the defendant died and the plaintiff-appellant, sought by petition to implead his legal representatives in his place. But in the meantime, the appeal abated and so the appellant had to file another application for setting aside the order of abatement. So, two questions arose for consideration before the learned appellate Judge and they are: (1) Whether the cause of action would survive against the legal representatives of the deceased defendant and (2) whether the prayer for setting aside the abatement could be allowed. On both the points the learned, appellate Judge has-found against the appellant. On a careful review of the position in all its aspects I am disposed to think that the plaintiff-appellant should succeed on both the points. On the first point, namely about the survival of the cause of action against the legal representatives of the defendant, the question is whether the appellant claim is barred by the maxim "actio personalis moritur cum persona". (A personal action dies with the person.) This maxim is part of the law of India except in so far as it has been modified by statute. The effect of the maxim is that the death of the party wronged, or of the wrong-doer puts an end to the cause of action. Therefore, a suit cannot be instituted by or against his representative. A suit or appeal properly instituted will abate on the death of either party during its pendency. But to the above maxim a qualification has been recognised by the Common Law, namely that an action would lie against the representative of a wrong-doer whose estate had been added to or benefited by the appropriation of another property. In philips v. Homfry 24 Ch. D. 439 where the defendant had worked and taken the coal in the plaintiff mine, it was held that on his death the action could be continued against a representative for the value of the coal wrongfully taken. In philips v. Homfry 24 Ch. D. 439 where the defendant had worked and taken the coal in the plaintiff mine, it was held that on his death the action could be continued against a representative for the value of the coal wrongfully taken. The law is governed by the Law Reform (Miscellaneous Provisions) Act, 1934 wherein it is provided that on the death of a person, all causes of action subsisting against or vested in him shall survive against or for the benefit of his estate except causes of action for defamation, seduction, inducing one spouse to leave the other and claims for damages for adultery. The suit for or against a person in tort may, therefore, be continued by or against his representatives. The position is more or less the same under the Indian Succession Act also where it has been enacted that all causes of action in favour of or against a person shall survive except those for defamation, assault as defined in the Indian Penal Code and other personal injuries not causing the death of the parties. Applying the above principles to the facts on hand, it has to be held that the cause of action in the present case should survive as against the legal representatives of the deceased defendant. The action is one for damages for misappropriation of the usufructs of the trees standing in the plaintiff property where the defendant was a kudikidappukaran. In other words, the suit is one for damages for theft committed from the property of the plaintiff. It cannot be doubted that the defendant estate was benefited by his action; benefited in the sense that the articles stolen, viz., jack fruits, arecanuts, coconuts, etc., were taken and enjoyed by him along with his legal representatives. His estate must be deemed to have been benefited to that extent. The matter could be looked at from another stand point also and that is that, had it not been for the theft or misappropriation by the defendant, money would have been required by him to purchase those articles from the market and so much would have been a loss to his estate. Now that the contingency of purchasing these articles from the market was avoided it could safely be treated as a benefit that had accrued to the estate; because the value of the stolen articles was an accretion to his estate. Now that the contingency of purchasing these articles from the market was avoided it could safely be treated as a benefit that had accrued to the estate; because the value of the stolen articles was an accretion to his estate. It is a wrong done to the property and an action for wrong done to the property is not extinguished on the death of the plaintiff or defendant. It will survive: Section 306 of the Indian Succession Act was sought to be, pressed into service in this case but I do not think that the said section is applicable to the present case. There, the provision applies only to executors and administrators of a deceased person. It does not apply to heirs or other legal representatives. Here we are concerned with the heirs of the deceased defendant. It was at one time thought that in India the maxim "actio personalis moritur cum persona" did not form part of the law. In Bhupendra Narayana Sinha v. Chandramoni Gupta I.L.R. 53 Cal. 987 it was observed by Page, C. J. "In India the doctrine of actio personalis moritur cum persona does not form part of the law." But in a subsequent case, the same learned Chief Justice observed by way of explanation of his former statement : "I desire to point out, however, that by the observation in I.L.R. 53 Cal. 987: ˜in India the doctrine of actio personalis moritur cum persona does not form part of the law the Court merely intended to hold that inasmuch as and so far as claims by or against the legal representatives of deceased persons were regulated by statute, in respect of such persons the rule had no application in India."� (See I.L.R. 13 Rang. 385.) In respect of the aforesaid maxim, Rajamannar, C. J., of the Madras High Court has observed in Arunachalam v. Subramanian A.I.R. 1958 Madras 148. "We see no reason to depart from a rule which has been so well established in this country and which the Legislature has allowed to remain without modification. We hold, applying that rule, that this appeal has abated on account of the death of the sole respondent...." That was a suit for damages for malicious arrest. The defendant died in the course of the suit and it was held that the right would not survive. We hold, applying that rule, that this appeal has abated on account of the death of the sole respondent...." That was a suit for damages for malicious arrest. The defendant died in the course of the suit and it was held that the right would not survive. But in the present case, the position is different as we have already seen. This is a case where the exception to this rule applies, viz., the estate of the deceased has been benefited by his wrongful act. Since the exception is attracted, the action must be deemed to survive against the legal representatives of the defendant. On the next point, viz., the abatement of the appeal, it is seen from the records that the respondent died on 24th July 1966. That fact was stated in Court by the defendant advocate on 19th October 1966. Thereafter the appeal was adjourned to 15th November 1966 for steps. On that day no steps were taken. The appellant counsel was also absent. But another advocate asked for time on behalf of the appellant advocate. But that prayer was rejected and the appeal was stated to have been abated. The petition for setting aside the abatement was filed on 21st November 1966 and in the application the appellant stated that even though an oral statement regarding the death of the defendant was made in Court by his advocate on 19th October 1966, a memo to that effect was filed only on 15th November 1966. The appellant had all along been enquiring about the whereabouts of the legal representatives, the names and addresses, etc., and the moment those particulars were received, he filed the petition in Court to set aside the abatement order and to implead the legal representatives of the defendant. Within 90 days of the death of the party if his legal representatives are not impleaded the action will normally abate. In the present case 90 days had expired by 24th October 1966. But on 19th October 1966, the Court allowed time till 15th November 1966 for the appellant to take steps to get the legal representatives impleaded. Even then the appellant was not able to file the impleading application in time, and it is this failure on the part of the appellant that has been relied on by the Court as a ground to reject his application. Even then the appellant was not able to file the impleading application in time, and it is this failure on the part of the appellant that has been relied on by the Court as a ground to reject his application. On the impleadment application the appellant son was examined in Court. He has sworn that the delay in filing the application was due to the fact that the information regarding the legal representatives was received only some two days before 22nd November 1966 on which date the application was filed. This explanation the learned Subordinate Judge was not prepared to accept. He has believed the statement in the objection that even as late as 25th July 1966 the petitioner had visited the property where the respondent lived, for the purpose of plucking coconuts and then he knew about the death of the defendant. Even if that were the case, the further difficulty is still there, viz., the difficulty in getting the names and addresses of the legal representatives of the deceased. All the legal representatives were not there. Some were away, even outside Kerala. The fact therefore that appellant had visited the compound where the defendant resided even if true, on 25th July 1966 cannot be urged as a circumstance to show that his petition is wanting in bona fides. I think in the circumstances, the order of abatement ought to have been vacated by the learned Subordinate Judge and the appeal posted for hearing. In the result, the civil miscellaneous appeal is allowed and the order of abatement is set aside. The appeal is sent back to the learned Subordinate Judge for disposal according to law.