JUDGMENT : 1. The facts borne out from the pleadings are that the respondents/plaintiffs No.1 & 2 namely; Urmila Devi & Sita Ram (hereinafter to be referred as ‘the respondents’) filed a suit before the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, for declaration and permanent injunction in respect of land measuring 11 bigha situated in Village Sri Madhopur, District Sikar. The suit was resisted by the defendants by filing the written statement wherein denied the averments of the plaint. 2. During the pendency of the suit an application was filed by the defendants under Order IX Rules 2 & 5 CPC stating that the suit has been filed on false and fabricated facts and the plaintiffs are not taking necessary steps for service of summons upon the defendants and prayed to dismiss the suit. The Court of Sub Divisional Officer, Sri Madhopur, District Sikar, vide order dated 02.05.2013 dismissed the suit in default observing that since 29.07.2008 the plaintiffs have not made any efforts for service of summon upon the defendants and in such a situation the suit proceedings cannot be continued for the unending period. The Court of Sub Divisional Officer, Sri Madhopur ordered to prepare a decree and the decree was prepared. 3. Against the judgment & decree dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, the plaintiffs /respondents namely; Urmila Devi and Sita Ram filed an appeal before the Court of Revenue Appellate Authority, Sikar. 4. During the pendency of the appeal before the Court of Revenue Appellate Authority, Sikar, the plaintiffs/ respondents Urmila Devi and Sita Ram, against the same order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, also filed a revision under section 230 of the Rajasthan Tenancy Act, 1955 (for short ‘the Act of 1955’) before the Court of Board of Revenue, Rajasthan, Ajmer. In the memo of revision filed under section 230 of the Act of 1955, the respondents /plaintiffs in para No.7 has specifically pleaded that by over-sight of law and due to inadvertent mistake, they filed the appeal before the Court of Revenue Appellate Authority, Sikar, against the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar. The respondents/plaintiffs further pleaded that since the order of the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, is revisable order, they will get the appeal dismissed as withdrawn which is pending before the Revenue Appellate Authority, Sikar. 5. The Court of Board of Revenue, Rajasthan, Ajmer, considering the arguments of both the counsel appearing for the respective parties, by a detailed order dated 13.04.2017 allowed the revision filed by the respondents/ plaintiffs on the cost of Rs.5,000/- and set aside the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar and remanded the matter to the trial court for decision afresh. 6. Aggrieved by the order dated 13.04.2017 passed by the Court of Board of Revenue, Rajasthan, Ajmer, the legal heirs of petitioners/defendants No.3 and 4 namely; Moti Lal and Prabhu Dayal filed a review petition under section 229 of the Act of 1955 before the Court of the Board of Revenue, Rajasthan, Ajmer. The review petition filed by the legal representatives of petitioners/ defendants No.3 and 4 namely; Moti Lal and Prabhu Dayal was dismissed by the Court of the Board of Revenue, Rajasthan, Ajmer, vide judgment dated 20.12.2017 observing that earlier the order in the revision was passed after considering all the factual as well as legal aspects and therefore, no scope and grounds are there to review the earlier order. 7. The defendants No.3 and 4 i.e. the present petitioners being aggrieved by the order dated 20.12.2017 passed by the Court of the Board of Revenue, Rajasthan, Ajmer in the review petition, as well as the order dated 13.04.2017 passed by the Court of the Board of Revenue, Rajasthan, Ajmer, in the revision petition, have preferred instant writ petition. 8. Counsel appearing for the petitioners/ defendants No.3 and 4 submitted that the Court of the Board of Revenue, Rajasthan, Ajmer, while dismissing the review petition filed by them has not considered all the issues raised by petitioners in their review petition. 8. Counsel appearing for the petitioners/ defendants No.3 and 4 submitted that the Court of the Board of Revenue, Rajasthan, Ajmer, while dismissing the review petition filed by them has not considered all the issues raised by petitioners in their review petition. He further submitted that while filing the review petition an issue was also raised that the order of the Court of Sub Divisional Officer, Sri Madhopur, District Sikar dated 02.05.2013 is an appealable order and the respondents have rightly filed the appeal before the Revenue Appellate Authority but during the pendency of the appeal, they have also availed the remedy of review under section 229 of the Act of 1955, which is not maintainable. 9. Per contra, counsel appearing for the respondents/plaintiffs submitted that the Court of Sub Divisional Officer, Sri Madhopur, District Sikar passed the judgment dated 02.05.2013 on an application filed by the petitioners under Order IX Rules 2 & 5 CPC. He further submitted that in case of dismissal of suit in view of the Provision of Order IX Rule 5 CPC, no decree can be prepared as per law. Section 223 of the Act of 1955 provides for appeals from original decrees. Since the decree cannot be passed while dismissing the suit under the Provision of Order IX Rule 5 CPC, no appeal could be filed under the Provision of Section 223 of the Act of 1955 against the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar by over-sighting of law, but the respondents/plaintiffs filed the appeal and when they came to know about this material legal aspects, they filed the revision before the Court of the Board of Revenue, Rajasthan, Ajmer with the specific mention and disclosure that the appeal has been filed by over-sight of law and they will withdraw the same. He further submitted that the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, passed the judgment on 02.05.2013 dismissing the suit on an application filed by the defendants under Order IX Rules 2 & 5 CPC. The Court of Sub Divisional Officer, Sri Madhopur, District Sikar illegally ordered to prepare the decree, whereas on dismissal of suit in such matters, no decree can be prepared. The Court of Sub Divisional Officer, Sri Madhopur, District Sikar illegally ordered to prepare the decree, whereas on dismissal of suit in such matters, no decree can be prepared. He further submitted that the Court of Board of Revenue, Rajasthan, Ajmer, has rightly allowed the revision and remanded the matter to the trial court for fresh adjudication on merits. 10. Considered the submissions advanced by both the counsel appearing for the respective parties. 11. The legal issue which emerges for decision of this Court on the consent of both the counsels appearing for the respective parties is that ‘Whether an order passed on an application under Order IX Rule 5 CPC is an appealable order under Section 223 of the Act of 1955 or it could be challenged by filing revision petition under section 230 of the Act of 1995?’ 12. Counsel appearing for the both the parties fairly submitted that no decree parcha can be prepared in case of dismissal of a suit under the Provision of Order IX Rule 5 CPC because the Provision of Order IX Rule 5 CPC provides that in case of dismissal of suit for default of sincere efforts for service of summons upon the defendant, the plaintiff may bring a fresh suit. Order IX Rule 5 reads as under :- “ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE (1) “ “ (2) “ “ (3) “ “ (4) “ “ (5) Dismissal of suit where plaintiff, after summons returned unserved, fails for seven days to apply for fresh summons:- (1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that- (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.” The Provision of Section 223 of the Act of 1955 provides for appeals from original decrees, which reads thus:- “223. Appeals from original decrees-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.” The provision of Section 230 of the Act of 1955 provides for power of the Board to call for cases i.e. the power of revision, which reads thus:- “230. Power of the Board to call for cases- (1) The Board may call for the record of any case decided by any subordinate revenue court in which no appeal lies either to the Board or to a civil court under section 239 and if such court appears- (a) to have exercised jurisdiction not vested in it by law; or (b) to have failed to exercise jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. Board may pass such orders in the case as thinks fit.” 13. As admitted by the counsel appearing for both the parties, no decree can be prepared in the cases of dismissal of suit on an application filed under Order IX Rule 5 CPC but in the present case the decree was framed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar even after dismissal of the suit in default under the Provision of Order IX Rule 5 CPC. 14. Since the decree could not be framed on dismissal of the suit in default under the Provision of Order IX Rule 5 CPC, any decree framed by the trial court is void and is of no consequence, as if the same has not been framed. In such circumstances in view of the provision of the Act of 1955, no appeal could be filed against the judgment dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar under the provision of Section 223 of the Act of 1955. The respondents filed the revision with the specific disclosure that by over-sight of law they have filed an appeal before the Court of Revenue Appellate Authority, Sikar and they will withdraw the same as the same is not maintainable in view of the fact that the order of the Court of Sub Divisional Officer, Sri Madhopur, District Sikar is not appealable. 15. The basic argument raised by the counsel appearing for the petitioners/ defendants No.3 and 4 is that the respondents /plaintiffs have preferred an appeal under section 223 of the Act of 1955 against the judgment dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, they could not avail the remedy of revision in parallel. 16. This Court on scrutiny of the material available on the record and considering the provisions of law finds that against the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, under the Provision of Order IX Rule 5 CPC, the appeal is not maintainable under the Provision of Section 223 of the Act of 1955, and therefore, the respondents have rightly filed the revision petition. The revisional court after considering overall facts and circumstances has rightly allowed the revision and remanded the matter to the trial court for fresh adjudication. 17. The revisional court after considering overall facts and circumstances has rightly allowed the revision and remanded the matter to the trial court for fresh adjudication. 17. Counsel appearing for the petitioners /defendants No.3 and 4 in the beginning raised an issue that the Court of the Board of Revenue, Rajasthan, Ajmer, while deciding the revision of petitioners has not rightly appreciated the facts and law and the Court of Board of Revenue, Rajasthan, Ajmer, while deciding the review petition has not decided the issue raised by them that whether the order dated 02.05.2013 passed by the Court of Sub Divisional Officer, Sri Madhopur, District Sikar, is appealable order or is liable to be challenged under the revisional jurisdiction. Since this Court with the consent of both the counsel appearing for the respective parties has decided the issue in the above portion of this order, there would be no justification in remanding the matter to the Court of Board of Revenue, Rajasthan, Ajmer, for deciding the same. 18. The petitioners have failed to make out any case for interference in the orders under challenge. 19. In view of the discussions made above, the writ petition filed by the petitioners/defendants No.3 and 4 is dismissed. 20. Since the main petition has been dismissed, the stay application and pending application/s, if any, also stand dismissed.