( 1 ) THE present appeal is directed against a judgment end order passed by the learned Assistant District Judge, 2nd Court, Alipore, in Misc. Case No. 55 of 1987, whereby the learned Assistant District Judge, rejected an application under Order 9, Rule 13 of the Code of Civil Procedure preferred by the appellant/judgment debtor. The ex parte decree is one for eviction.

( 2 ) SO far as the appellant's case is concerned; it is a case where the first limb for relief under Order 9 Rule 13 of the Code of Civil Procedure has been sought to be invoked. The decree-holder/respondent, however, has pleaded disentitlement of the appellant to the relief claimed on the ground, as pleaded on behalf of the appellant, inter alia, relying upon the finding of the Trial Court about satisfactory service of summons and also on a technical ground of limitation by reference to the second limb of Article 123 of the Limitation Act. It has further been the plea of the decree-holder/respondent that even assuming that there was some irregularity in the service of summons, in view of the second proviso to Order 9 Rule 13 of the Code of Civil Procedure, the said irregularity could not res