ORDER : This petition is filed impugning the order dated 02.06.2016 in M.A.No.68/2013 on the file of the I Additional Senior Civil Judge and CJM, Shivamogga (for short ‘the appellant Court’) and the order dated 7.8.2013 on I.A.XIII to XV in OS No.459/2000 on the file of the Principal Civil Judge and JMFC, Shivamogga (for short ‘the Civil Court’). 2. The Civil Court, which had disposed of the suit in O.S.No.459/2000 as having abated by order dated 31.1.2012, has rejected the petitioners’ applications [I.A.XIII to XV] for condonation of delay in filing the application for setting aside abatement, for setting aside of the abatement and to come on record as the legal representatives by the impugned order dated 07.08.2013. The petitioners, who are the sons of the original plaintiff, Sri C.Malleshappa, have filed the appeal in M.A.No.68/2013 impugning the order dated 07.08.2013, and the appellate Court has dismissed this appeal by the other impugned order dated 02.06.2016. As such, the petitioners have preferred this petition. 3. Sri C.Malleshappa filed the suit in O.S.No.459/2000 for permanent injunction in respect of the immovable property measuring 1 acre 3 guntas in Sy.No.64/2 of Millaghatta, Kasaba Hobli, Shivamogga Taluk (described as being within the limits of Shimoga City as of the date of the suit). The civil Court partially decreed the suit by its judgment and decree dated 7.12.2005 restraining the respondent from interfering with Sri C.Malleshappa’s possession of the subject property including a common passage measuring 4 [four] feet wide. Sri C.Malleshappa carried this judgment in appeal in R.A.15/2006 because the decree did not extend to a passage identified separately in a rough sketch as ‘ABCD’. Sri C.Malleshappa was unsuccessful in this first appeal as the appeal was dismissed by judgment dated 27.2.2007. As such he carried the judgments of the civil Court and the first appellate court in second appeal before this Court in RSA No.2181/2007. This Court by order dated 13.1.2011 restored the suit in O.S.No.459/2000 for expedited decision with a direction to the civil Court to appoint a Commissioner for purposes of local inspection and to obtain a report with appropriate subsequent opportunities to both Sri C.Malleshappa and the respondent. 4. After this remand, Sri C Malleshappa has filed I.A.XII for appointment of a Commissioner to conduct local inspection, and the civil Court has allowed the application. The Court Commissioner has filed his report dated 19.8.2011. 4. After this remand, Sri C Malleshappa has filed I.A.XII for appointment of a Commissioner to conduct local inspection, and the civil Court has allowed the application. The Court Commissioner has filed his report dated 19.8.2011. Sri Malleshappa has died on 10.11.2011, and because his legal representatives did not come on record within the stipulated time, the suit is closed without decision on merits observing that the suit would abate. 5. On 22.11.2012, the petitioners have filed three separate applications viz., I.A.XIII to XV for condonation of delay, setting aside of abatement and leave to come on record as the legal representatives of the deceased plaintiff. The civil Court, by its impugned order, has rejected these applications observing that Sri C Malleshappa has died leaving behind the petitioners and three daughters who were not made parties to the proceedings and that on the demise of Sri C Malleshappa cause of action would not survive in the petitioners. If the petitioners could urge and establish a new cause of action, they could always file a separate suit. 6. The petitioners being aggrieved by this order have filed appeal under Order XLIII Rule 1(k) of the Code of Civil Procedure, 1908 (For short ‘CPC’) in M.A.68/2013. The appellate Court by its order dated 02.06.2016 has dismissed the appeal inter alia on the ground that the petitioners cannot succeed in their applications unless they seek restoration of the suit which is disposed of as having abated, and because the petitioners have filed their applications without application for restoration under Order XXII Rule 3 of the CPC, the appeal would not be maintainable. The appellate Court has also observed that because the other legal representatives (the daughters) have not joined the petitioners, the applications cannot be allowed. The appellate Court has opined that the failure to bring on record some legal representatives would be fatal. The appellate Court has concluded as follows. “… In fact, the applicants have not filed applications under Order 22 Rule 9 of CPC, under Order 22 Rule 3 of CPC and under section 5 of Limitation Act, in a suit which is pending consideration. Moreover, the applicants have not filed any applications as such for restoration of the suit. Therefore, this court is of the opinion that this miscellaneous appeal filed under Order 43 Rule 1 of CPC is not at all maintainable.” 7. Moreover, the applicants have not filed any applications as such for restoration of the suit. Therefore, this court is of the opinion that this miscellaneous appeal filed under Order 43 Rule 1 of CPC is not at all maintainable.” 7. It is undisputed that the petitioners have not only filed an application under Order XXII Rule III of CPC seeking leave to come on record as the legal representatives of the deceased Sri C.Malleshappa but they have also filed application under Order XXII Rule 9 of CPC for setting aside the abatement. These applications are along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application. The appellate Court’s conclusion that the petitioners ought to have filed an application for recall of the order dated 31.01.2012 and without that order being recalled, the applications could not have been entertained cannot be a proper exercise of jurisdiction in view of the express provisions of Order XXI Rule 5 of the CPC. As such, interference would be called for in the present petition with the appellate Court’s order. 8. Further, the civil Court has erred in concluding that the appropriate remedy for the petitioners, after the disposal of the suit as having abated was to file a fresh suit for permanent injunction and the suit for permanent injunction on the death of Sri. C. Malleshappa would abate. It is now settled that the legal representatives of a deceased plaintiff could continue a suit for permanent injunction as against the defendant. 9. Though the learned counsel for the respondent argues vehemently that the present applications have been field by the petitioners’ after a lapse of 12 months from the date of demise of Sri C.Malleshappa and the delay has not been sufficiently explained, it is seen that in the affidavit accompanying the applications the petitioners have specifically asserted that after the demise of Sri C.Malleshappa they had to shift their residence. When they were searching for the records, they chanced upon the records pertaining to the civil suit, and until then they were not aware of the suit. The respondent has not placed any material on record to seriously controvert this assertion, and this Court is not persuaded to conclude that the petitioners are relying upon these circumstances unjustifiably. For the aforesaid reasons, even the trial court’s order cannot be sustained. The respondent has not placed any material on record to seriously controvert this assertion, and this Court is not persuaded to conclude that the petitioners are relying upon these circumstances unjustifiably. For the aforesaid reasons, even the trial court’s order cannot be sustained. In the result, the following : ORDER [a] The revision petition is allowed. The impugned order dated 2.6.2016 in M.A.No.68/2013 on the file of the I Additional Senior Civil Judge and CJM, Shivamogga and the order dated 7.8.2013 on I.A.Nos.XIII to XV in OS No.459/2000 on the file of the Principal Civil Judge and JMFC, Shivamogga are set aside. [b] The petitioners, who are the legal representatives of the deceased Sri C. Malleshappa, are permitted to come on record and prosecute the suit with liberty to the respondent to contest the suit on the ground that unless all the legal representatives are brought on record, the suit would not be maintainable; [c] The civil Court shall expedite the decision on merits in accordance with law within six months from the date of first appearance viz., 27.01.2021 and the petitioners and the respondent shall appear before the trial Court on 27.01.2021 without further notice from the Civil Court.