Hon'ble GUPTA, J.—This appeal has a long chequered history ultimately culminating into the order of the learned Single Judge dt. 22.8.2000 allowing the writ petition of the present respondent No. 20, and thereby setting aside the order of learned Board of Revenue dt. 8.3.1995 produced as Annexure-3 and that of the learned S.D.O. dt. 28.3.1987 Annexure-1 which is subject matter of challenge before us.

2. Since in the order dt. 10.1.2001, it was noticed by the Court that the controversy involved in this special appeal is as to whether summons on Ladu Ram for appearance on 13.1.1987 before the Assistant Collector, Suratgarh was served on him or not, and photostat copy of the summons shows that there is a thumb impression of Ladu Ram, it was thought appropriate to call for the record of the Case No. 112/1986 (decided on 28.3.1987) from the Court of Assistant Collector, Suratgarh, and that of the Board of Revenue being that of Revision No. 26/1992/T.A./Ganganagar decided on 8.3.1995. In compliance thereof record was received, and then vide order dt. 6.9.2001 the appeal was admitted.

3. We have perused the record, and at the outset we may observe that the summon issued to Ladu Ram for hearing of 13.1.1987 does bear the thumb impression of Ladu Ram in token of his having received summon on 5.1.1987. This is one aspect of the matter.

4. The learned Single Judge has found that the non-service of summons cannot be equated with the irregularity in the service of summons, and it was found that when Uda Ram had accepted the summons of Ladu Ram which has not been accepted to be sufficient and notices were issued afresh for 13.1.1987, it was not open for the Court now to turn back on tendering the summons of petitioner to his brother Uda Ram and to raise the plea of irregularity of service. Then, it was held that even otherwise as pointed out above service on Uda Ram cannot be considered to be a service at all of Ladu Ram even by way of alternative mode, and thus the proviso to Order 9 Rule 13 was found to have no application. As against this, as we find from the original record of the trial Court that on 30.12.1986 Vakalatnama was filed on behalf of Uda Ram, and fresh summons were issued to other defendants. Then, on 13.1.1987 the summons of Ladu Ram did not come to be received by trial Court after service, and therefore, fresh summons were ordered to be issued for 4.2.1987. Then, on 4.2.1987 it was noticed that summons of Ladu Ram had been served but he did not appear therefore the matter was ordered to proceed ex parte. In that view of the matter, this conclusion arrived at by the learned Single Judge cannot stand on the face of the summons of Ladu Ram, which are available on the record.

5. The matter does not end here inasmuch as, the learned Single Judge, then on page 10 onwards has proceeded to examine the merits of the case, and has found, that the suit as filed was not maintainable/entertainable much less could be decreed. In that view of the matter we have gone through the record on this aspect of the matter.

6. Arguing the appeal on this aspect it was submitted on the authority of Division Bench judgment of this Court in Kistoormall vs. Sattar Mohamed reported in AIR 1958 Rajasthan 276 that under Section 31 of the Specific Relief Act a separate suit is maintainable for rectification of the mistake in the decree. In that case a rectification of the boundary of the mortgaged property was sought, as the mistake occurred was a mutual mistake of the parties to the mortgaged transaction, as it crept in the mortgage itself, which percolated down to decree, which was a compromise decree, and it was found that the decree is a instrument of contract made by the hand of the Court but by will of the party, it was open to be corrected by separte suit as it contains mutual mistake. On that basis it was submitted that in the decree passed on 23.8.1976 in suit No. 12/1972, the shares of some of the defendants therein, being Surja Ram, Ram Rakh, Het Ra

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