This is a revision under Section 115 of the Code of Civil Procedure, 1908, by the petitioners, who are plaintiffs in O.S. No. 188 of 1987 on the file of the learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Gowribidanur. They are aggrieved by' the order passed by the learned Judge on 5-12-2003, dismissing the suit as abated accepting the memo filed by the respondent-defendant.

2. Heard Sri Vishwanath Shetty, learned Counsel appearing on behalf of Sri M.S. Subbarayappa, learned Counsel for petitioners and Sri Madava Reddy, learned Counsel for respondent.

3. The factual matrix which needs reference is.-

A suit in O.S. No. 188 of 1987 was filed by Sri B.G. Thimmaiah against Sri K Narayana Shetty, seeking for a decree of permanent injunction to restrain the defendant from interfering with his possession in respect of immovable property described in the schedule to the plaint. In this regard he had also sought for an ad interim order of injunction.

4. The defendant entered appearance and had resisted the suit. However, during the pendency of the suit B.G. Thimmaiah died and on application move under provisions of Order 22, Rules 1 and 2 of CPC in all about 8 persons were substituted as plaintiffs to represent his estate, they are therefore, on record as legal heirs and contested the further proceedings. However, it transpired during the subsequent proceedings legal representative 7 by name, Sri B.T. Anantharaju, also died. His legal representatives were not brought on record within a period prescribed under the law of limitation. Later, applications came to be filed invoking the provisions of Order 22, Rule 3 and Order 22, Rule 9 of the CPC, to set aside abatement and to bring on record the wife and children of B.T. Anantharaju and to contest the proceedings.

5. The applications were resisted by the defendant. The learned Trial Judge after referring to the grounds on which the applications were moved, the grounds on which the condonation of delay was sought, the grounds on which applicants sought to set aside the abatement and the grounds raised by the defendant, held that the delay in filing the applications was inordinate. The learned Judge notices that B.T. Anantharaju died on 28-7-1997 but the application was filed only 22-11998, which is beyond period of 90 days. Thus held that the evidence tendered by the applicants did not indicate or substantiate that they had no knowledge of the pendency of the suit and hence cause was not sufficient. In the result, it held that the abatement of suit against LR-7 or original plaintiff, namely, B.T. Anantharaju had to be sustained and there is no question for setting aside abatement.

6. After such an order was passed on 22-2-2003 dismissing the applications moved by L.Rs of B.T. Anantharaju, the defendant filed memo on 11-9-1993 requesting the Court to dismiss the suit on the ground that the right to sue does not survive upon other L.Rs of the original plaintiff and doctrine of merger of lis gets applied. Though the memo was opposed by the plaintiff, the learned Judge concluded that the death of one of the L.R. of the original plaintiff non-suits other L.Rs also as they had common interest and their right, title and interest remained undivided. Therefore, abatement of suit as against one of the L.R. of the original plaintiff affects the right of the other L.R. and hence their suit abates in its entirety. That order dated 5-12-2003 is impugned in this revision. How far that view of the Trial Judge is sustainable and as to whether the entire suit abates as a consequence of abatement of suit against only one L.R. is the point raised for consideration.

7. The learned Counsel Sri Madava Reddy, at the outset questions the maintainability of this revision. He would contend that as by virtue of the order impugned the suit is abated, it amounts to passing of a decree and once a decree is passed it is appealable under the scheme of CPC.

8. Per contra, learned Counsel Sri Vishwan