Judgement ORDER :- This revision petition is by the plaintiffs against the order made by the Principal Munsiff at Coondapur dated 22nd November, 1972, holding that the entire suit O. S. No. 411 of 1958 brought by the plaintiffs-petitioners has abated, as the petitioners did not bring the legal representatives of the deceased first defendant on record within the prescribed time and as the right to sue did not survive in favour of respondents-defendants 2 and 3. 2. The petitioners instituted the suit for possession. Their case is that they are the owners of the suit land and that the mother of defendants 2 and 3 was a permanent tenant. One of the conditions of a permanent lease is that the lessee is not entitled to transfer or alienate the rights of permanent tenancy in favour of third parties and that the lessor would be entitled to resume possession of the land in the event of the lessee transferring or alienating his interest in contravention of the aforesaid clause. The case of the plaintiffs is that after the death of the mother of defendants 2 and 3, it is defendants 2 and 3 who have succeeded to her interest. It is further alleged that during the lifetime of the mother of defendants 2 and 3, who is the lessee, she, in contravention of the aforesaid clause, alienated her interest in favour of defendant 1 and that therefore the same has given rise to a cause of action in favour of the plaintiffs for securing a decree for possession. The defendants resisted the suit by taking the stand that the first defendant has released his interest in favour of defendants 2 and 3 and that therefore there is no breach of any covenant of the lease, entitling the plaintiffs to a decree for possession. It may be mentioned at this stage that the prayer in the suit is for possession against all or any of the defendants who may be found to be in actual possession of the suit property. Defendant 1 died during the pendency of the suit and as his legal representatives were not brought on record within the prescribed time, the suit abated as against the first defendant. It was submitted that the application filed for setting aside the abatement was also dismissed. 3. Defendant 1 died during the pendency of the suit and as his legal representatives were not brought on record within the prescribed time, the suit abated as against the first defendant. It was submitted that the application filed for setting aside the abatement was also dismissed. 3. Defendants 2 and 3 filed interim application and prayed that the Court should bold that the entire suit even as against them has abated on the ground that the cause of action has act survived in their favour, the suit having abated as against defendant 1. That application was opposed by the petitioners. The learned Munsiff by his order dated 22nd November, 1972 has held that the entire suit O. S. No. 411 of 1958 has abated. It is the said order that is challenged by the petitioners in this revision petition. 4. I have heard Shri N. Santosh Hegde as well as Shri B.P. Holla, both on the merits and in regard to the maintainability of the revision petition. The learned Munsiff has taken the view that as right to sue did not survive in favour of defendants 2 and 3, the suit has abated as a whole, the legal representatives of defendant 1 not having been brought on record within the prescribed time. I find it difficult to agree with this conclusion of his. The suit, as already mentioned, is one for possession against all or any of the defendants who may be found to be in possession. If defendants 2 and 3 or any of them is in possession and if the plaintiffs established their case entitling them to secure possession from defendants 2 and 3, the Court can undoubtedly make a decree in favour of the plaintiffs, in spite of the fact that the legal representatives of defendant 1 have not been brought on record. If, however, the Court comes to the conclusion that defendants 2 and 3 are not in possession or that the plaintiffs failed to establish that they are entitled to secure a decree for possession from defendants 2 and 3, the suit may have to be dismissed. This is, therefore, not a case where one can say that in the absence of the legal representatives of defendant 1 the rights of the parties cannot at all be adjudicated upon. This is, therefore, not a case where one can say that in the absence of the legal representatives of defendant 1 the rights of the parties cannot at all be adjudicated upon. I am, therefore, of the opinion, that on merits, the Court below has taken a. clearly wrong view. 5. But, it was urged by Shri Holla that if this Court has no jurisdiction to entertain the revision petition, the fact that the petitioners have a good case will not justify this Court in interfering with the order made by the learned Munsiff. It is therefore, that, I am required to examine the question recanting maintainability of the revision petition. 6. If the order under revision is a decree, then the same would be appealable to the Court of the Civil Judge under Section 96, Civil Procedure Code and a second appeal would lie against the decree of the Civil Judge, to this Court. In that event, it is obvious that the revision petition would not be competent, inasmuch as the High Court can exercise its revisional powers only in cases in which no appeal lies to it either directly or indirectly. It is, no doubt, true that the order under revision does not, in express terms, state that the suit of the petitioners is dismissed against respondents-defendants 2 and 3. If we examine the provisions of Order 22, Civil Procedure Code, it would be clear that a suit can abate in respect of a party who is dead and whose legal representatives are not brought on record within the prescribed time. If, therefore, one of the several defendants dies and his legal representatives are not brought on record, the suit abates only so far as that party is concerned. The consequence that flows as a result of the abatement of the suit as against one of the defendants in the event of the right to sue not surviving in favour of other defendants is not of abatement of the suit against other defendants. When a right to sue does not survive as against other defendants, the suit becomes incompetent for want of necessary parties. The suit in those circumstances has to be dismissed on the ground that necessary parties, whose presence is necessary before the Court for adjudication of the matter in controversy, are not before the Court. When a right to sue does not survive as against other defendants, the suit becomes incompetent for want of necessary parties. The suit in those circumstances has to be dismissed on the ground that necessary parties, whose presence is necessary before the Court for adjudication of the matter in controversy, are not before the Court. The Courts have loosely used the expression 'abatement' against surviving defendants also, though that is not the correct expression to be used, as observed by the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89 . The relevant paragraphs 4 to 6 in the said judgement may be extracted with advantage : "(4) It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents, Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been consequently, divergence of opinion, in the application of the principle. It will serve no useful purpose to consider the case. Suffice it to say that when Order 22, Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. (5) The same conclusion is to be drawn from the provisions of Order 1, Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interest of the appellants and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. (6) The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may however, be stated that ordinarily the considerations which weigh with the Court in deciding upon the question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, would be ineffective, that is to say, it could not be successfully executed." It is clear from the decision of the Supreme Court that if the Court comes to the conclusion that the right to sue does not survive in favour of the other defendants, the suit has to be dismissed for want of necessary parties before the Court. In such circumstances, it is not proper for the Court to declare that the suit has abated as against the other defendants. In such circumstances, it is not proper for the Court to declare that the suit has abated as against the other defendants. The situation in a case like this will be the same as in a suit brought by the plaintiff against one or some of the defendants, without impleading the necessary parties. If the necessary parties are not before Court in the soft filed by the plaintiff, the decree that the Court can make is to dismiss the suit for want of necessary parties. The same will be the consequence that has to flow when the suit abates as a result of the death of one of the defendants and the light to sue not surviving in favour of the remaining defendants. If a suit is dismissed for want of necessary parties to the suit, the said decision amounts to a decree, as it finally determines the rights of the parties and the said decree would be appealable under Section 96, Civil Procedure Code. The same would also be the position in a case like this, where the suit abates against the first defendant and the right to sue does not survive in favour of the remaining two defendants. 7. As the expression "abatement" has been loosely employed, as can be seen from the various decisions of the Courts in India, what has to be looked into is the real substance of the matter and not the expression employed by the Courts. Though the Court below has held that the suit has abated as against defendants 2 and 3, the clear effect of the same is of dismissal of the petitioners' suit for want of necessary parties, viz., the legal representatives of deceased defendant No. 1, the right to sue not having survived in favour of defendants 2 and 3. If the order under revision is so construed as having the effect of a dismissal of the petitioner's suit for want of necessary parties, the decision of the Court below would be a decree which is appealable under Section 96, Civil Procedure Code. In that view of the matter, the proper remedy of the petitioners was to prefer an appeal against the decision of, the court below, in the Court of the Civil Judge under Section 96, Civil Procedure Code. 8. The above discussion will necessarily lead to the conclusion that this revision petition is not maintainable. In that view of the matter, the proper remedy of the petitioners was to prefer an appeal against the decision of, the court below, in the Court of the Civil Judge under Section 96, Civil Procedure Code. 8. The above discussion will necessarily lead to the conclusion that this revision petition is not maintainable. I have no doubt in my mind that the petitioners have bona fide pursued their remedy in a wrong forum, viz., this Court. Instead of filing aft appeal before the Court of Civil Judge, the petitioners have, under a bona fide impression that a revision is competent, filed this revision petition. The petitioners cannot be blamed for approaching this Court instead of preferring an appeal to the Court of Civil Judge. The wordings employed by the Court of first instance themselves were responsible for this situation. Instead of the Munsiff holding that the suit has abated against defendants 2 and 3, if he had dismissed the suit on the ground that the necessary parties are not before him, the petitioners would have been posted with the information that a decree dismissing their suit has been passed and that the remedy available to them is to prefer an appeal to the Court of Civil Judge. The petitioners, in these circumstances, should not be penalised for no fault of theirs in approaching this Court in revision, instead of filing an appeal to the Court of the Civil Judge. 9. For the reasons stated above, I direct that the memorandum of revision petition be returned to the petitioners for being presented as a memorandum of regular appeal in the Court of Civil Judge, accompanied by appropriate Court fee. The petitioners shall be entitled to make an appropriate application for condonation of delay and I have no doubt that the application will be dealt with in accordance with law. No costs.