1. This is an appeal from an order of the learned District Judge of Je3sore, affirming an order of the learned Munsif of Bongaon. The material facts are simple, and can be stated concisely. The respondent brought a suit against the two appellants and a third person, and obtained an ex-parte decree against all the three defendants. No appeal has been preferred against that decree which was passed on the 2nd March 1922. On the 27th March 1922 the judgment-debtor other than the appellants applied under Order 9, Rule 13 for an order setting aside the ex-parte decree. The application was dismissed on the 9th September 1922,and this judgment-debtor preferred an appeal against the order refusing to set aside the ex-parte decree, but this appeal was dismissed on the 29th January 1923. On the 27th March 1925 the respondent, as decree-holder, applied for execution of the decree against all the three defendants. That application for execution, having been presented. more than three years after the decree was passed, was barred by limitation. The decree-holder, however, contended that he was freed from that bar in two ways : (1) because on the 25th February 1925 a sum of Rs. 5 had been paid by the judgment-debtors in part satisfaction of the decretal sum; (2) that inasmuch as the application of the judgment-debtor who applied to set aside the ex-parte decree was not finally dismissed Until the 29th January 1923, and the terminus a quo for limitation is the date of that final decree, his application for execution was within time.
2. As regards the first point : there was a finding of fact by the learned Munsif adverse to the judgment' creditor; but on appeal, inasmuch as the learned District Judge was disposed to decide the appeal in the judgment-creditor's favour upon the second ground, he did not consider or decide the first ground upon which the judgment-creditor relied. We are not disposed to send back the proceedings in order that the learned, District Judge may come to a finding upon the issue as to whether the Rs. 5 was paid as alleged because the evidence upon the record is sufficient and such that we feel that we are in a position to come to a conclusion ourselves upon that issue. The learned Munsif decided this issue against the judgment-creditor because he thought, having regard to the evidence that was adduced, that it could not reasonably be held that the judgment-creditor had established that the payment in question had been made. The parties were at arms length; there had been criminal proceedings between them; and if this alleged payment of Rs. 5 had been made nearly three years after the decree was passed, in the circumstances, one would have expected that the judgment-creditor would have made or obtained some record of this payment signed by the debtors or one or more of them in order that he might be in a position to prove this payment for the purpose of saving limitation. It was admitted at the hearing before the learned Munsif that the judgment-debtor could read and write, and yet no record of the payment of this sum of Rs. 5. alleged to have been made by the hostile defendants in favour of the judgment-creditor, is to be found. On the other hand the judgment-debtors - each of them-denied having made the payment and upon that evidence the learned Munsif came to the conclusion that it was not proved that the payment had been made. After considering the evidence in this matter there can be no doubt that the decision at which the learned Munsif arrived was correct.
3. As regards the second ground : it is now well-settled law that where an appeal has been preferred from a decree the period of limitation commences from the date of the degree on appeal : Abdul Alim v. Abdul Hafez : AIR1927Cal89 , Gopal Chunder v. Gosain Das  25 Cal. 594. But what is meant by 'decree on appeal?' In my opinion, (0 that question there can be but one answer. It means 'decree on appeal from the decree to obtain execution of which the application is made.' Now, can it reasonably be contended that the decree of the 29th January 1923 was passed on appeal from the decree to execute which the application was made? Clearly not. The appeal which the respondent prays in aid in support of his application for execution was not from the decree passed in the suit, but from an order refusing to set aside that decree under Order 9, Rule 13. In ray opinion, the matter is clear upon principle. But it is also concluded by authority : see Jivaji v. Ramchandra  16 Bom. 123, Baikunta Nath Mittra v. Aughore Nath Bose  21 Cal. 387, Rai Brijraj v. Nauratan Lal  3 Pat. L.J. 119. The learned vakil, on behalf of the respondents, relied upon the decision of this Court in Lutful Huq v. Sumbhudin Pattuk  8 Cal. 248. In that case there was an application by the judgment-debtor to revive a suit which had been decreed ex parte against him. The lower appellate Court determined the case upon the footing that the judgment-creditor had been prevented from executing his decree by reason of a stay order that had been passed by that Court, but the learned Judges who determined the suit in the High Court observed:
The application to revive the suit really kept the decree open, and that decree did not become final until the order of the appellate Court was passed on the 19th December 1877.
4. If it could reasonably be held that an application to set aside an ex-parte decree 'really kept the decree open,' that case would be an authority which would conclude the matter in favour of the respondent. But, in my opinion, an application to set aside a decree does not 'keep the decree open,' and is not to be regarded as an appeal from the ex-parte decree itself. The case of Lutful Huq v. Sumbhudin Pattuck  8 Cal. L.J. 119 has been dissented from by the Patna High Court in the case of Rai Brijraj v. Nauratan Lal  21 Cal. 387 by the Bombay High Court in the case of Jivaji v. Ramchandra  16 Bom. 123 and the ratio of the judgment in that case is inconsistent with the decision of this Court in the case of Baikunta Nath Mittra v. Aughore Nath Bose  21 Cal. 387. In my opinion, the case of Lutful Haq v. Sumbhudin Pattuck  8 Cal. 248, was wrongly decided, and cannot now be regarded as law.
5. For these reasons, the orders of the learned District Judge and of the Munsif in this case are wrong, and the appeal must be allowed. The order of this Court is that the orders appealed from will be discharged and the judgment-creditor's application for leave to execute the decree of the 2nd March 1922 will be dismissed. The appellants will have their costs in all the Courts, the hearing-fee in this Court being assessed at two gold mohurs.
6. I agree.