Dr. HOOJA, C.—In this instant reference case under Section 11 of L.R. Act, the learned Division Bench of this Board has referred the following legal questions for opinion of the Larger Bench:- Q.1 Whether objection regarding improper service can be raised before first appellate Court in the appeal under Section 96(2) of the C.P.C. against an exparte decree? Q.2 If yes, then under what circumstances? 2. On the above reference we have heard the learned counsels for the parties Shri Virendra Singh & Shir S.P. Singh. We have also heard other learned counsels of the Bars Shri P. Gandevia, Shri Y.D. Sharma, Shri J.S. Sankhla, Shri P.S. Dashara, Shri Bhoop Singh Vishnoi, Shri L.N. Pandya, Shri Hagamilal, Miss. Poonam Mathur, Shri Pradeep Bishnoi, Shri Ajay Pal and Shri Vikas Parashar. 3. At the outset we would like to state that all the learned advocates have vehemently submitted one common argument that the questions of reference are totally misconceived and does not require any answer because firstly Sec. 96(2) C.P.C. does not apply to present case as the impugned judgment was passed in an appeal under Section 223 of Rajasthan Tenancy Act, 1955. Secondly, provision of Section 96(2) C.P.C. is clear and itself provides appeals from original decree passed exparte, and thirdly, Section 308 of R.T. Act specifically provides applicability and non applicability of C.P.C. in context of Rajasthan Tenancy Act, 1955. 4. Shri Virendra Singh, Learned counsel for the appellant relying on 2005(1) SCC 787 = AIR 2005 SC 626 Bhanu Kumar Jain vs. Archana Kumar along with 2007(1) RRT 73 : RLW 2007(1) RJ 493 (HC) Ramjeet & Others vs. The Board of Revenue and Others contended that first appellate Court cannot look into the merit of proper or improper service against an exparte decree judgment. 5. On the other hand Shri S.P. Singh, and majority of the learned counsel who addressed us also relying on Bhanu Kumar's case and Smt. Chanda & Others vs. State of Rajasthan & Others (2004(1) RRT Page 1 : RLW 2004 RJ 80 (HC)) contended that first appellate Court has powers to examine objections with regard to improper service of notices/summons in an appeal under Section 96(2) C.P.C. as well as in an appeal u/S. 223 of R.T. Act. 6. We have given our thoughtful consideration to the rival arguments made by the learned counsel and have perused the rulings cited by them. 6. We have given our thoughtful consideration to the rival arguments made by the learned counsel and have perused the rulings cited by them. 7. In order to resolve the controversy and reach to conclusions we shall first reproduce Sec. 96 C.PC., Sec. 223 R.T. Act, Sec. 224 R.T. Act, and Sec. 208 R.T.Act which are as follows:- Sec. 96 C.P.C. Appeal from original decree-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall be from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except an a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed (ten thousand rupees.) Section 223 of R.T. Act: Appeals from original decree-An appeal shall lie from an original decree- (i) to the Collector if such decree is passed by a Tehsildar, and (ii) to the Revenue Appellate Authority) if such decree is passed by an Assistant Collector, a Sub Divisional Officer or a Collector. Section 224of R.T. Act: Appeals from appellate decrees- (1) An appeal shall lie to the (Revenue Appellate Authority) from a decree passed in appeal by a Collector. Section 224of R.T. Act: Appeals from appellate decrees- (1) An appeal shall lie to the (Revenue Appellate Authority) from a decree passed in appeal by a Collector. (2) An appeal shall lie to the Board from a decree passed in appeal by (Revenue Appellate Authority) on any of the following grounds, namely:- (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having force of law; (iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits; and (iv) the decision being contrary to the weight of evidence on record where the lower appellate Court has varied or reversed any finding of the trial Court on a question of fact. Section 208 of R.T. Act: Application of Civil Procedure Code- The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except: (a) provisions inconsistent with anything in this Act, so far as the inconsistency extents. (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in list 1 of the Fourth Schedule, shall apply to all suit and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule. 8. A bare reading of the aforementioned provisions clearly speaks that under Section 96(2) C.P.C. an appeal shall lie from an original decree passed exparte whereas Section 223 & Section 224 R.T. Act only States that an appeal shall lie from an original decree to Collector if such decree is passed by Tehsildar and to the R.A.A. If such decree is passed by an Assistant Collector, S.D.O. or a Collector and to Revenue Board if such decree is passed by R.A.A. in first appeal. It does not specifically mention anything positive or negative regarding appeal against an exparte decree judgment though it mentions the grounds on which the appeal shall lie. 9. It does not specifically mention anything positive or negative regarding appeal against an exparte decree judgment though it mentions the grounds on which the appeal shall lie. 9. Section 208 of R.T. Act clearly states that the provisions of the Code of Civil Procedure, 1908 shall apply only when (a) provisions are inconsistent with anything in this Act, so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in list 1 of the Fourth Schedule, shall apply to all suit and proceedings under this Act, subject to the modification contained in List II of the Fourth Schedule. 10. In this legal background the answer to the reference made by learned Division Bench of the Board is that we have no hesitation to agree with the common contention of all the learned members of the Bar that since the impugned judgment passed by first appellate Court i.e. R.A.A. was passed in an appeal presented under Section 223 of R.T. Act and not under Sec. 96(2) C.P.C., the question framed and referred for the decision of the Larger Bench is misconceived and needs no answer. Otherwise also the legal provision of Section 96(2) C.P.C. are clear that defendants/appellants can raise such objection regarding improper service of notice/summons besides other objections and the appellate Court has power to examine such objections and pass its judgment on merit. 11. Now for the sake of clarity of issue if the Questions of reference are constructed in terms of Sec. 223 & Sec. 224 of R.T. Act then the Questions will be "whether objection regarding improper service can be raised before appellate Court in the appeal under Section 223 or Sec. 224 of R.T. Act against an exparte decree? If yes, than under what circumstances? 12. All the learned members of the Bar who participated in arguments except Mr. Virendra Singh learned counsel for appellant answered this question also in "Yes" and as regards to the circumstances they said that it has to be examined in every case in light of the objections. 13. Mr. Virendra Singh relying on Bhanu Kumar's case and Ramjeet Singh's case (Supra) contended that objection regarding improper service of summons/notices cannot be raised and looked into before first appellate Court in an appeal against an exparte decree. 13. Mr. Virendra Singh relying on Bhanu Kumar's case and Ramjeet Singh's case (Supra) contended that objection regarding improper service of summons/notices cannot be raised and looked into before first appellate Court in an appeal against an exparte decree. His contention is that the appellant case raise such objection only in application under O. 9 R. 13 CPC to set aside an exparte decree. 14. We are sorry to say that we do not agree with the contention of Mr. Virendra Singh as the settled principle on this issue which has been laid down by Hon'ble Supreme Court in Bhanu Kumar's case (supra) in para 37 is as follows: "We have however, no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz. to prefer an appeal in terms of Order 43, Rule1 of the Code. Once such on appeal is dismissed, the Appellant cannot raise the same contention in the first Appeal. If it be held that such a contention can be raised both in the First Appeal as also in proceedings arising from an application under Order 9, R. 13, it may lead to conflict of decisions which is not contemplated in law." In para 38 Hon'ble Supreme Court held 38. The dichotomy in our opinion, can be resolved by holding that whereas the defendant would not permitted to raise a contention as regards the correctness or otherwise of the order positing the suit for ex-parte hearing by the trial Court and/or existence of a sufficient cause for non-appearance of the defendants before it. It would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the material brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. 15. Similarly, in Ramjeet's case, Hon'ble Division Bench of Rajasthan High Court para 11 held: "Under Section 223(ii) of the R.T. Act, 1955 (for short the Act of 1955). 15. Similarly, in Ramjeet's case, Hon'ble Division Bench of Rajasthan High Court para 11 held: "Under Section 223(ii) of the R.T. Act, 1955 (for short the Act of 1955). appeal from original decree of the Assistant Collector lies to the Revenue Appellate Authority, although the word "ex-parte", as mentioned in Section 96(2), CPC is not there in Section 223(ii), but the same term "decree" includes "ex-parte" also, therefore, law on the subject will not change." 16. In Smt. Chanda vs. State of Rajasthan (supra) Hon'ble Division Bench of Rajasthan High Court in para 4 framed the following Qs for answer-(1) Whether the arguments in regard to improper service of summons could be advanced before the first appellate Court? The answer as written in para 5 & 6 of the judgment is- "5. A look on sub-section (2) of Section 96of the Civil Procedure Code demonstrate that an appeal may lie from the original decree passed ex-parte. The defendant against whom an ex-parte decree is passed has three options (i) he may file application seeking setting aside the ex-parte decree under Order 9, Rule 13 Code of Civil Procedure: or (ii) he may file review petition under Order 47 Rule 1 CPC or (iii) he may prefer appeal under Section 96(2) of the Civil Procedure Code. 6. If appeal is filed under Section 96(2), the defendant may satisfy the appellate Court that summons was not properly served on him. If the process server did not comply with the provisions of Order 5 Rule 17 CPC., the ex-parte decree may be set-aside by the appellate Court. 17. In view of the abovementioned clear law, we are of the firm opinion that there is no ambiguity of law on the question as framed by learned Division Bench of this Court as well as by our Larger Bench, still we take this opportunity to summarise the answer on this second question as follows: (1) In an appeal under Section 96(2) CPC or under Section 223 of Sec. 224 of the R.T. Act objection regarding improper service of summons/notices can be raised before appellate Court, only if appellant has not availed the remedy of Order 9 Rule 13 or Order 43 Rule 1 CPC. (2) If a defendant has already availed the remedy under Order 9 Rule 13 CPC to set aside an exparte decree and his application is rejected he can file appeal against the above order under Order 43(1)(d) CPC. If this appeal is also dismissed, he can further avail filing of regular appeal subject to provisions of Limitation Act against exparte decree under the provision of Section 96(2) CPC or Sec. 223 or Sec. 224 of the R.T. Act as the case may be. In this appeal, the appellant cannot raise such objections which were raised in application under Order 9 Rule 13 CPC or an appeal under Order 43(1)(d) CPC and if raised, the appellate Court shall not consider such objection but decide the appeal on merits of other objections. We would like to make it clear that few learned advocates have submitted some more citations on different-different aspects of the controversy but since the rulings discussed by us cover the relevant area of discussions we are not discussing these rulings. 19. Before we conclude we also wish to convey our word of appreciation for all the learned members of the Bar who have assisted us understanding and resolving the issue. 20. The reference is accordingly answered & decided. 21. Pronounced in the open Court.