JUDGMENT Nagendra Rai, J. The defendants have filed the present appeal against the judgment and decree dated 7th February, 1983, passed in M.T.A. No 21 of 1981 17 of 1982 dismissing their appeal against the judgment and decree dated 6th May, 1981, passed in T.S. No. 102 of 1978, by Munsif-II, Begusarai decreeing the suit of the plaintiff. 2. The plaintiff filed the suit for declaration that his date of birth is 3.1.1928 and the decision of the defendants to superannuate him with effect from 17.1.1979 by treating his date of birth as 11.1.1921 is illegal and incorrect and for the direction to the defendants not to give effect to their decision to superannuate him with effect from 17.1.1979. The plaintiff died in November, 1987 during the pendency of appeal in this Court and his legal heirs and representatives have been substituted in his place. 3. The plaintiff's case, in brief, is that he was appointed as Dresser in Indian Oil Corporation, Barauni by defendant no. 1 on 8.2.1962 and was directed by the defendants to get himself examined by Medical Officer of the Corporation and to obtain a medical certificate before joining the post. In pursuance of the aforesaid direction the plaintiff appeared before the Medical Officer of the Corporation and was medically examined and his age was assessed as 30 years on 15.2.1962 and thereafter he joined his post as Dresser i.e. on 15.2.1962. The plaintiff was again asked to submit attestation form by its letter dated 28.8.1962 and accordingly, he submitted the attestation form in which his age was shown as 30 years on 15.2.1962 as per assessment and report of the Medical Officer of the Corporation. While he was in service he was again asked in the year 1974 to submit educational certificate and he submitted the certificate of the Principal of Zila School, Purnea, which showed his date of birth on 3.1.1928 as entered in the admission register of Zila School, Purnea. While he was in service he was again asked in the year 1974 to submit educational certificate and he submitted the certificate of the Principal of Zila School, Purnea, which showed his date of birth on 3.1.1928 as entered in the admission register of Zila School, Purnea. 4 The further case of the plaintiff is that in the Second World War he had served as Nursing Orderly During that time the persons were recruited by the British Government in mass scale without any formalities The plaintiff was never asked by the Military authority to submit any document in support of his age After some time he was retrenched and in the retrenchment certificate it was wrongly mentioned that on the date of his enrolment in the Army his age was 24 years. The said document has no evidentiary value in determining the age of the plaintiff. On 13.12.1974 the defendants informed the plaintiff that his date of birth has been accepted as 11.1.1921, on the basis of the age mentioned in the retrenchment certificate. The plaintiff represented his case and prayed that the date of birth, as has been mentioned in the admission register of Purnea Zila School or his age as mentioned in the medical report of the Medical Officer and entered in the attestation form prepared by the defendants be accepted. The defendants without affording any opportunity of nearing to the plaintiff by letter dated 10th July, 1978 informed him that he would superannuate with effect from 10.1.1979. The defendants again by letter dated 3rd October, 1978 in formed the plaintiff that he would be completing the age of 58 years on 10.1.1979. According to the plaintiff the order to superannuate him with effect from 10.1.1979 is arbitrary, illegal and against the date mentioned in the admission register of Purnea Zila School as 16.1.1939. 5. The defendants contested the suit. They admitted that the plaintiff was appointed as Dresser on 14-2-1962. According to the plaintiff the order to superannuate him with effect from 10.1.1979 is arbitrary, illegal and against the date mentioned in the admission register of Purnea Zila School as 16.1.1939. 5. The defendants contested the suit. They admitted that the plaintiff was appointed as Dresser on 14-2-1962. They also admitted that the plaintiff was sent to medical examination for fitness before the then Medical Officer, Barauni Oil Refinery, but according to them he did not produce any documentary evidence with regard to his age at the time of entering into the service and, according to the provisions of the certified Standing Orders of the Corporation, medical examination of the plaintiff was imperative and, accordingly, he was sent to the Medical Officer of the Corporation for examination. Before the Medical Officer the plaintiff gave his age as 30 years at the time of medical examination on 26.2.1962, but the doctor opined that his age was 31 years on that day. They also admitted that the plaintiff submitted his attestation form on 1-9-62 and mentioned therein that he had read in Purnea Zila School during the period 1938 to 1940, but he did not produce school leaving certificate inspite of the direction to that effect issued by the authority from time to time. Only in the year 1975, the plaintiff submitted an attested copy of a certificate, wherein his date of birth was mentioned as 3-1-1928. The aforesaid certificate was not treated as genuine certificate. 6. It was further asserted on their behalf that the plaintiff was retrenched from the pest of Nursing Orderly in the Army and submitted a copy of discharged certificate dated 14.11.1963 granted by Army Wing, in which the date of enrolment of the plaintiff in M.S. Regiment was stated as 11-1-1949 and his age on the date of enrolment had been shown as 24 years. The plaintiff was asked to submit his original certificate, but he did not produce the same on the ground that the same was lost The defendants relied upon the discharge certificate and treated his date of birth as 11-1-1921 and on that basis orders were issued for his superannuation with effect from to 10.1.1979, as he had completed 58 years on that date which is the age of superannuation according to the Standing Orders of the Corporation. 7. 7. Both the courts below after considering the materials on the record accepted the case of the plaintiff and held that the correct date of birth of the plaintiff was 3-1-1928 as shown in the admission register of Purnea Zila School and the decision of the defendant Corporation to superannuate the plaintiff with effect from 10-1-1979, by treating his date of birth as 11-11-921 was illegal, incorrect and against the law. 8. The appeal wall admitted on 11.8.1983 and the following substantial questions of law were framed :- (1) Whether a suit in the form brought before the civil court is maintainable? Alternatively, whether such a suit is at all maintainable in view of the provisions of the Industrial Dispute Act? (2) Whether, if it is held that the suit is maintainable in the civil court, could the court grant the consequential relief that the plaintiff should not be retired from service on 10-1-1979 in absence of any prayer for consequential relief? (3) Whether in a suit of this nature, a person is entitled to damages or the relief which has been granted by the court below? The appeal was placed for hearing before a learned Single Judge who on 21-1-1988 referred the appeal to a Division Bench on the point as to whether the suit is maintainable in view of the decision of the Supreme Court in the cases of the Premier Automobiles Ltd. V. Kamlakar Shantaram Wadke (A.I.R. 1975 SC 2238) and Sitaram Kashiram Konda v Pigment Cakes (A.I.R. 1980 SC 16) and that is how the appeal has been placed before us for disposal. 9. Mr. K.D. Chatterji, learned counsel appearing for the appellants, contended two points. Firstly he contended that the plaintiff being a workman had filed the present suit for correction of date of birth and for declaration that the order of the Corporation superannuating the plaintiff was arbitrary and illegal, the dispute raised by him being an industrial dispute could he raised under the provisions of the Industrial Dispute Act and not before the civil court Secondly he contended that the plaintiff brought the suit for personal action and, admittedly, he died during the pendency of the appeal and in this view of the matter the suit has to be dismissed, as the personal cause of the plaintiff died with his death. 10. Mrs. 10. Mrs. Sheema Ali Khan, appearing on behalf of the respondent, combated the aforesaid submissions raised on behalf of the appellants and submitted that the present suit is maintainable in the civil court as the plaintiff had challenged the order of superannuation before it had taken effect According to her the dispute raised by the plaintiff is not a dispute covered by Section 2 A of the Industrial Dispute Act and in that view of the matter, the remedy under the Industrial Dispute Act was not available to the plaintiff and the suit before the civil court was maintainable. She further contended that though in a suit for personal action, the right to sue does not survive after the death of the plaintiff, the said principle bas no application in a case where the plaintiff in a suit for personal action dies after having obtained a decree in his favour. In such a case the cause of action merges in the decree and the benefit of the decree would go to the legal representatives and they are entitled to be substituted in place of the deceased plaintiff. 11. In support of his first contention, learned counsel for the appellants relied upon two cases of the Supreme Court, reported in A.I.R. 1975 SC 2238 (premier Automobiles Ltd V. Kamlakar Shantaram Wadke) and A.I.R. 1980 S.C. 16 (Sitaram Kashiram Konda V. Pigment Cakes). The question for consideration in the case of Premier Automobiles Ltd. (Supra) was as to the jurisdiction of the civil court in relation to the Industrial Disputes. After considering numerous authorities it was held by the apex Court as follows :- (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent, to be granted in a particular remedy. 3 If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is get an adjudication under the Act. 3 If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be," 12. In the case of Sitaram Kashiram Konda (supra) the Supreme Court relying upon the aforesaid case of Premier Automobiles Ltd. (supra) and other cases referred to therein held that a suit by a workman against the employer that his removal from service was illegal and without any reason could not be entertained by the civil court, as granting the said relief would amount to specific performance of service. However, a suit for compensation for wrongful removal from service is maintainable in the civil court. 13. Thus, in view of the authoritative pronouncements of the apex Court it is clear that if any dispute raised by the workman falls under section 2(K) or under section 2(A) of the Industrial Dispute Act then the remedy of the aggrieved person is to approach the, authorities under the provisions of the Industrial Dispute Act. However, If the dispute is not an Industrial dispute within the meaning of the aforesaid two provisions, then the jurisdiction of the civil court is not barred and the civil court is proper forum for redressal of the grievance. 14. There is no dispute with regard to the aforesaid proposition of law but the question in the present case is as to whether the dispute raised by the plaintiff at the time of the filing of a suit was an industrial dispute or not. Section 2(K) of the Industrial Dispute Act defines the industrial dispute, which runs as follows :- “Industrial dispute” means any dispute or difference between employees and employers, or between employees and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”. Section 2(K) of the Industrial Dispute Act defines the industrial dispute, which runs as follows :- “Industrial dispute” means any dispute or difference between employees and employers, or between employees and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”. It is well settled that the industrial dispute prior to insertion of Section 2A could be raised only by a group of workmen against their employer or by a union and an individual workman had no right to raise industrial dispute. Section 2A was inserted by Industrial Dispute Amendment Act, 1965 with effect from 1st December, 1965, which runs as follows : “Dismissal, etc. of an individual workman to be deemed to be an industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination snail be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute”. According to the aforesaid definition any dispute between individual workman and his employer connected with or arising not of his discharge, dismissal, retrenchment or termination is an industrial dispute, notwithstanding that no other workman or any union of workman is a party to the aforesaid dispute. In other words, an individual dispute has also been treated as an industrial dispute by the aforesaid provision. 15. In the present case, as mentioned above, the plaintiff while in service had filed a suit for correction of his date of birth and for declaration that the orders issued in the year 1978 superannuating him with effect from 10.1.1979 were illegal and arbitrary. The question falling for determination is as to whether the dispute raised by him before the civil court was an industrial dispute within the meaning of Section 2A of the Act or not A bare reading of the provision of section 2A shows that this section is attracted only where the employer discharges, dismisses, retrenches or otherwise terminates the employee. The question falling for determination is as to whether the dispute raised by him before the civil court was an industrial dispute within the meaning of Section 2A of the Act or not A bare reading of the provision of section 2A shows that this section is attracted only where the employer discharges, dismisses, retrenches or otherwise terminates the employee. If any of the eventualities as mentioned above has not happened section 2A is not attracted and the dispute is not an industrial dispute and the remedy of the aggrieved workman to approach the civil court is not barred. This question is no longer resintegra and has been decided by the apex Court in the case of Ishar Singh v. National Fertilisers & ors (A.I.R 1991 SC 1546). In the said case a workman whose date of birth was initially shown as 1.7.1930 and later on changed to 23.10.1993 was sought to be superannuated at the age of 58 years on the basis of the original entry. He filed a suit before the apprehended superannuation was to work out for correction of his date of birth and for injunction against superannuation. The employer challenged the maintainability of the suit in the civil court on the ground that the suit for the relief prayed for was not cognizable by the civil court. The High Court up held the objection raised by the employer. The apex Court dealing with the said matter held that the suit for correction of date of birth is maintainable in the civil court. It was further held in paragraph 4 of the judgment as follows :- “The main challenge to the Civil Court's jurisdiction is by placing reliance on Section 2A of the Industrial Disputes Act. On a reference to that provision we find that on the happening of certain eventualities, the relief’s available under that provision can be asked for. On 7.1.1988, none of the situations contemplated under S. 2-A had happened so as to give the appellant a cause of action to approach the Industrial Court. On a reference to that provision we find that on the happening of certain eventualities, the relief’s available under that provision can be asked for. On 7.1.1988, none of the situations contemplated under S. 2-A had happened so as to give the appellant a cause of action to approach the Industrial Court. It cannot be doubted that the maintainability of the suit has to be decided with reference to the date of institution of the proceeding and since on 7-1-1988 when the civil suit was filed none of the eventualities Covered by S. 2-A has happened, the appellant could not have approached the forum under the 1947 Act for relief.” Thus, it is evident that if an employee approaches the civil court before happening of any of the eventualities as mentioned in Section 2 A of the Act, the suit is maintainable. 16. However, it was held in paragraph 6 of the said judgment that if a workman has superannuated during the pendency of the case, the only relief he could get on the basis of the corrected record is the back wages, which relief could not be granted by the civil court. The aggrieved person has to approach different forum provided in law to work out his remedy. The present case is squarely covered by the aforesaid decision, as in the present case also the suit was filed before the order of superannuation was to work out on 10-1-1979. In that view of the matter, the submission advanced on behalf of the appellant that the suit was not maintainable in the civil court is without any substance. However, even on the basis of the corrected record the plaintiff would have superannuated in the year 1986 and as such, though the suit was maintainable, he or his heirs cannot be given any relief for the reason that after superannuation the only relief to which plaintiff was entitled was for back wages which could not be granted by the civil court. 17. So far as the second point is concerned, it is well settled that the personal action dies with the death of the person concerned (actio personalis moritur cum persona) Mr. 17. So far as the second point is concerned, it is well settled that the personal action dies with the death of the person concerned (actio personalis moritur cum persona) Mr. K. D. Chatterji submitted that as the cause of action in the present case was personal to the plaintiff himself and he died during the pendency of the appeal, the right to sue did not survive after his death under Order XXII rule 1 read with rule 11 of the Code of Civil Procedure and as such the appeal has to be allowed and the suit has to be dismissed. In this connection he relied upon paragraph 14 of the judgment of the Supreme Court in the case of Girijanandini Devi and ors. v. Bijendra Narain Choudhary (A.I.R. 1967 SC 1124) wherein, it was held that the maxim 'actio personalis, a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory” 18. I am unable to agree with the submission advanced on behalf of the appellant for the reason mentioned hereinafter. Order XXII rule 1 of the Code of Civil Procedure deals with the death, marriage and insolvency of parties. Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. In other words if the right to sue does not survive the death of the plaintiff of the defendant will cause the suit to abate. According to rule 11 of Order XXII, in case of appeal the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal. Thus, in case of appeal, if the right to sue does not survive on the death of the appellant or respondent, the appeal shall abate No doubt, the relief prayed for in the present case was personal to the plaintiff himself and if he would have died during the pendency of the suit, in that case, the suit would have abated, as the right to sue would not have survived after his death. However, the said question does not arise in this case as the plaintiff died after passing of the decree in this favour, Even in cases where the cause of action is personal, if the suit has been decreed before the death of the plaintiff & hen there is no question of non, survival of right to sue as the cause of action merges in the decree and the benefits arising out of it passes to the legal representatives and they are entitled to be substituted in place of the deceased plaintiff. 19. In the case of Muhammad Husain & ors. vs. Khushalo (I.L.R. IX Allahabad page 131) a Full Bench of the Allahabad High Court held that in cases in which an action would abate upon the death of the plaintiff before judgment would not abate if final judgment had been obtained before the death of the plaintiff in which case the benefit of the judgment would go to his legal representative. The said case was followed by the learned Single Judge of this Court in the case of Mulchand Kalwar v, Gobind Singh & ors (LIX Indian Cases 929), wherein it was held that the suit which has terminated in a decree can not abate by reason of the death of the plaintiff after passing of the decree. It was further held that even in cases of personal right, such as claim for damages, the maxim actio per sonalis moritur cum persona does not apply after a decree is passed, inasmuch as a decree is property capable of inheritance as any other property. 20 In the case of Melepurath Sankunni Ezhuthassan v. The kittil Geopalkutty Nair A.I.R. 1986 S.C. 411) the question for determination before the apex Court was as to whether the came of action in a suit for defamation survived after the death of the appellant before the Supreme Court. From the facts of the said case it appear that the appellant before the Supreme Court in that case have filed a suit claiming certain amount as damages for defamation. The suit was dismissed by the trial court and allowed by the first appellate court. A decree for Rs. 500/- and proportionate cost for both the appeal and suit was passed in favour of the appellant. The suit was dismissed by the trial court and allowed by the first appellate court. A decree for Rs. 500/- and proportionate cost for both the appeal and suit was passed in favour of the appellant. 1he defendant respondent filed a second appeal before the High Court and the appellant filed cross-objection with regard to the amount which was not decreed in his favour. The second appeal was allowed by the High Court and the cross-objection of the appellant was dismissed. Thereafter an appeal was filed before the Supreme Court and during the pendency of the appeal the appellant died. Dealing with the said question it was held that cause of action did not survive after the death of the appellant as the appellant was seeking to enforce his right to sue for damages for defamation which did not survive after his death. However, it was observed that if the plaintiff appellant dies after the passing of decree in his favour then the position would be different. In such cases cause of action merges in the decree and its benefit passes to his legal representative. It is apt to quote paragraph 7, which runs as follows:- “Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal form the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff - respondent which his legal representative is entitled to uphold and defend and is therefore, entitled to be substituted in place of the deceased respondent-plaintiff’. (underline is mine) 21. (underline is mine) 21. Thus, it is held that maxim “Actio personal is moritur cum persona” (a personal action dies with the person) has application only in cases for personal action, where the plaintiff dies at the stage of enforcing his right to sue for personal action. The said maxim has no application in cases for personal action where the plaintiff dies after the decree has been passed in his favour as in such a situation the cause of action merges in the decree and the benefits flowing from the decree become the part of the estate of the deceased plaintiff which the heirs and legal representatives are entitled to inherit. In an appeal from decree passed in favour of plaintiff the legal heirs are entitled to be brought on the record to defend the decree. There is no question of appeal being allowed on the ground of abatement of the suit itself due to non-survival of the cause of action for the reason that what is claimed by the legal representative of the deceased plaintiff respondent is the right arising out of the decree and not the right to enforce the original cause of action. So far as the present case is concerned, the plaintiff's suit was decreed by both the courts below and during the pendency of the appeal before this Court he died. Thus, the cause of action which was personal to the plaintiff has merged into the decree and the legal representatives are entitled to the rights and benefits arising out of the judgment and decree. In that view of the matter, the submission advanced on be half of the appellant that on the death of plaintiff-respondent right to sue does not survive and as such on this ground alone appeal should be allowed has no substance and the same has to be rejected. 21. None of the submissions advanced on behalf of the appellant has any substance. The appeal is, accordingly, dismissed. However, there shall be no order as to costs. Gurusharan Sharma, J. I agree Appeal dismissed.