The sufficiency of service of summons can be examined by the appellate court, and the appeal can be decided on merits against an ex parte decree.

P.S. Asopa, J.-The petitioners have filed the present writ petition against the order of the Board of Revenue, Ajmer dated 111.1993, whereby the order of the Revenue Appellate Authority, Alwar dated 08.07.1988 for remanding the case to the ACM, Bayana, District Bharatpur has been set-aside on the ground that scope of appeal and the application under Order 9 Rule 13, CPC is different, the Revenue Appellate Authority, being an appellate authority, could have decided the appeal on merits, but could not have seen the sufficiency of service of summons even for the purpose of deciding the issue of limitation, which is the scope of application under Order 9 Rule 13, CPC therefore, the said appellate authority has committed an error in treating the appeal as within time, from the date of knowledge on account of improper service, which is in fact barred by time.

2. Briefly stated the relevant facts of the case are that Respondent Nos. 4 and 5 have filed a revenue suit against the petitioners and seven others under Sections 88, 89 and 188 of the Rajasthan Tenancy Act, 1955 before the Assistant Collector, Bayana for declaration and correction of entries stating therein that they are Khatedar of the part land of Khasra No. 9, measuring 52 bighas and 4 biswas, situated at village Gharsoni, Tehsil Veir after excluding the remaining part of the land, which was in possession of Ramdayal, Heera La, Maharaj Singh, Gordhan and Mewaram ( Defendants Nos. 5 to 9 of the suit), but the said land has wrongly been entered in the name of Gangaram, Ramjeet, Mahendra and Ranji @ Ramjeet (Defendant Nos. 1 to 4 of the suit). Therefore, the said entry be corrected and be made in the name of plaintiffs Ramesh Chand and Samander Singh (Respondent Nos. 4 and 5). The further case of the petitioners is that the revenue suit was ex parte decreed on 19.07.1984 without ensuring the fact whether the service upon the defendants including the petitioners has been made or not.

3. The petitioners, who were the defendants, have filed an application under Order 9 Rule 13, CPC for setting aside the ex parte order of the ACM, Bayana dated 19.07.1984 and simultaneously filed an appeal before the Revenue Appellate Authority, Alwar against the said ex parte order dated 19.07.1984 alongwith an application under Section 5 of the Limitation Act. One of the main ground in both the applications was that the ACM, Bayana has committed an error of law in passing ex parte order without ensuring sufficiency of service. The Revenue Appellate Authority called for record of the ACM, Bayana and thereafter an application was moved by the respondents of the writ petition that the application under Order 9 Rule 13, CPC is required to be decided first by the trial Court before hearing of the appeal. The said application was rejected by the Revenue Appellate Authority on the ground that the appellate Court is quite competent to decide the appeal. In appeal, the Revenue Appellate Authority, Alwar vide its Judgment dated 08.07.1988 came to the conclusion that summons have not been served as per Order 5 Rule 2, 15 and 19, CPC and service of summons on two dead persons by affixation is now a matter of enquiry whether they were alive or not on that day and a finding was also recorded by

the Revenue Appellate Authority that the issue of limitation has not been raised by the respondents but in the application under Section 5 of the Limitation Act, it has been mentioned that the appellants came to know about the ex parte order dated 19.07.1984 on 08.04.1985 from the report of Halka Patwari and after obtaining the copies of the record, appeal was filed on 29.04.1985, hence the same is within time. The appeal was held to be within limitation, therefore, no order was passed for condonation of delay. Ultimately, the matter was remanded back to Assistant Collector, Bayana for further action according to law from the stage of filing of the written statement. As regards death of two defendants, it was