JUDGMENT B. K. Mukherjea, J. - This appeal is on behalf of the judgment-debtor and is directed against an order dated 13th May 1944, made by the Subordinate Judge, 4th Court, Mymensingh, dismissing the appellant's objections to the execution of a decree under S. 47, Civil P. C. The facts material for our present purposes may be shortly stated as follows : The decree which is sought to be executed was passed in a suit for partition brought by the decree-holders respondents against the appellant and other defendants in the Court of the 4th Subordinate Judge at Mymensingh. The preliminary decree is dated 3rd April 1938 and it was made final on 13th August following. The final decree purports to have been made on the basis of a compromise. On the day that the petition of compromise was filed and the decree was passed the appellant before us, who is defendant 5 in the suit was admittedly absent from Court, though his pleader signed the compromise petition on his behalf. On 11th November 1938, defendant 5 presented an application for setting aside the compromise decree under order 9, Rule 13, as well as under S. 151, Civil P. C., and his contention was that the vakalatnama which purported to give authority to his pleader to act on his behalf was not signed by him at all and that the decree made was an ex parte decree so far as he was concerned. The trial Court dismissed the application on 6th October 1939, primarily on the ground that it was time-barred. Against this order an appeal was taken to this Court being F. M. A. No. 53 of 1940, and there was also an application in the alternative filed under S. 115, Civil P. C., upon which Rule 79 (M) of 1940 was issued. Both the appeal and the rule were dismissed by this Court on 23rd July 1943. Pending these proceedings the decree-holders filed an application for execution of the decree only for the purpose of realising the costs awarded by it, sometime in December 1939 and this proceeding was struck off for non-prosecution on 4th July 1940. 2. Both the appeal and the rule were dismissed by this Court on 23rd July 1943. Pending these proceedings the decree-holders filed an application for execution of the decree only for the purpose of realising the costs awarded by it, sometime in December 1939 and this proceeding was struck off for non-prosecution on 4th July 1940. 2. After the appeal against the order rejecting the application for setting aside the decree under O. 9, R. 13, Civil P. C., was disposed of by this Court the decree-holders commenced the present proceeding on 20th December 1943 praying for delivery of possession of the properties in terms of the final decree made in the suit, and it was registered as O. C. Execution case No. 58 of 1943. It was stated under column 11 of the execution petition that the proceedings in execution were stayed pending the hearing of this appeal in this Court and on this statement which is admittedly false, the executing Court, it seems, held the application for execution to be within time and directed it to be registered. The Court ordered that delivery of possession of the properties might be given in terms of the final decree through a Commissioner appointed by the Court and arrangements were also made for police help as there was apprehension of a breach of peace. The present appellant thereupon filed his objections under S. 47, Civil P. C., objecting to the execution of the decree on the ground that the application for execution was barred by limitation under Art. 182, Limitation Act. The Court below over-ruled this objection being of opinion that under Art. 182, cl. (2), Limitation Act, time would run from 23rd July 1943 when the final order in appeal was made by this Court. It was further held that as the judgment-debtor did not put forward his objection before the order for delivery of possession was made although he received notice under O. 21, R. 22, Civil P. C., he was estopped from raising this point at a subsequent stage. The propriety of the decision of the Subordinate Judge on both these points has been challenged before us in this appeal. 3. The propriety of the decision of the Subordinate Judge on both these points has been challenged before us in this appeal. 3. Now, so far as the first point is concerned, it would be clear from what has been stated above that the application for execution of the decree was presented in this case beyond three years from the date of the decree. It was also beyond three years from the date of the final order made in the previous execution proceeding. To get round the plea of limitation the decree-holders relied upon cl. (2) of Art. 182, Limitation Act, under which the period of limitation for executing the decree runs, when there is an appeal, from the date of the final decree or order made by the appellate Court. In the case before us there was admittedly no appeal by any party from the final decree. There was an application as stated above made by defendant 5 for setting aside the ex parte final decree under O. 9, R. 13, Civil P. C., and S. 151, Civil P. C., and there was an appeal against the order rejecting that application. The final order made by this Court dismissing this appeal is dated 23rd July 1943, and the whole controversy centres round the point as to whether under cl. (2), Art. 182, Limitation Act, the period for execution of the final decree would be three years from the date when the appeal against the order rejecting the judgment-debtors' application for setting aside the decree was finally disposed of. In an early pronouncement of this Court which is to be found reported in 8 Cal. 248 Lutful Huq v. Sumbhuddin Puttuck ('82) 8 Cal. 248, it was held that when there was an application by a defendant to revive a suit which was decreed ex parte against him the application would keep the decree open and the decree would not become final till the order of the appellate Court was passed on the application for reviving the suit. This view, however, was expressly dissented from in later decisions and amongst these we may refer particularly to the cases in 54 Cal. 1052 Fakir Chand Mandal v. Daibacharan ('27) 14 A. I. R. 1927 Cal. 904 : 54 Cal. 1052 : 104 I. C. 466 and 35 C. W. N. 155 Profulla Kumar Basu Vs. Mt. This view, however, was expressly dissented from in later decisions and amongst these we may refer particularly to the cases in 54 Cal. 1052 Fakir Chand Mandal v. Daibacharan ('27) 14 A. I. R. 1927 Cal. 904 : 54 Cal. 1052 : 104 I. C. 466 and 35 C. W. N. 155 Profulla Kumar Basu Vs. Mt. Sorojbala Basu and Others, AIR 1931 Cal 332 . In the first of these cases Page and Graham JJ. held that the expression 'decree on appeal' can only mean the decree on appeal from the decree to obtain execution of which the application is made, and an application to set aside a decree does not keep the decree open. Page J. in course of his judgment referred to several decisions of this as well as other High Courts in India (to wit 16 Bom. 123 Jivaji v. Ram Chandra ('92) 16 Bom. 123; 21 Cal. 387 Baikanta Nath Mittra Aghorenath Bose ('94) 21 Cal. 387 and 3 Pat. L. J. 119 Brij Raj v. Naurattan Lal ('17) 4 A. I. R. 1917 Pat. 157 : 3 Pat. L. J. 119: 44 I. C. 575) in support of the view taken by him. In the other case Rankin C. J. and C. C. Ghose J. expressly dissented from the view taken in 8 Cal. 248 Lutful Huq v. Sumbhuddin Puttuck ('82) 8 Cal. 248 and held that the words "the final decree or order of the appellate Court" in Art. 182 (2), Limitation Act, mean the final decree or order passed on appeal from the decree which is sought to be executed and do not include the final decree or order that may be passed on appeal from an order made in a proceeding under O. 9, R. 13, Civil P. C., to have the decree which is sought to be executed, set aside. 4. The authorities of this Court therefore are decidedly in favour of the appellant. The argument of Dr. Sen Gupta who appears for the respondents decree-holders is that the law laid down in the above cases is no longer sound and has been impliedly overruled by the Privy Council in 59 I. A. 283 Nagendra Nath Dey v. Suresh Chandra Dey ('32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). This contention apparently receives support from certain decisions of the other High Courts in India which have accepted the interpretation which Dr. Sen Gupta wants to put on the decision of the Judicial Committee mentioned above. The question has not been considered till now by this Court and certainly requires careful examination. Stripped of details, the facts of the Privy Council case were as follows: Madden Mohan who was the plaintiff in a mortgage suit, in his application for final decree claimed that certain co-mortgagees who were defendants 11 and 12 in the suit had assigned their interests in his favour and consequently he was entitled to add to his own claim the shares of the mortgage money allowed to defendants 11 and 12. This claim was rejected and a final decree was made in the usual way in favour of all the mortgagees on 24th June 1920. On 27th August 1920, Madden Mohan appealed to this Court and in this appeal only the decree-holders mortgagees were made parties. Not only were the judgment-debtors not made parties to the appeal but the appeal itself which purported to be an appeal from an order embodied in the final decree and not the decree itself was insufficiently stamped. The complaint of the appellant was limited to the question of assignment only which was decided against him by the trial Judge. This appeal was dismissed by this Court on the ground of irregularity as well as on its merits, on 24th August 1923. On 3rd October 1923, defendants 11 and 12 who were co-mortgagees of the plaintiff presented an application to the Subordinate Judge for execution of the final mortgage decree, by sale of the mortgaged properties. It was opposed by the mortgagors judgment-debtors on the ground that it was barred by limitation under Art. 182, Limitation Act. The Subordinate Judge overruled this contention and allowed the execution to proceed. On appeal, the decision of the Subordinate Judge was reversed by a Division Bench of this Court consisting of Suhrawardy and Graham JJ. Suhrawardy J. held on the basis of the decision in 19 C. W. N. 287 Christiania Ben Shawnee v. Beaneries Prosad ('14) 1 A. I. R. 1914 Cal. 583 : 22 I. C. 685 : 19 C.W.N. 287, that the word 'appeal' in cl. Suhrawardy J. held on the basis of the decision in 19 C. W. N. 287 Christiania Ben Shawnee v. Beaneries Prosad ('14) 1 A. I. R. 1914 Cal. 583 : 22 I. C. 685 : 19 C.W.N. 287, that the word 'appeal' in cl. (2) of Art. 182 means and can only mean an appeal which is directed against the decree sought to be executed, and is of such a nature that the result of it is likely to affect the decree. Graham J. concurring in this view observed as follows: The decisive factor in cases of this nature appears to be whether the appeal imperils or not the whole decree for the execution of which the application was made. Applying this test it is clear that the decree as a whole was never imperilled and consequently it remained final and limitation must run from the date of the final decree and not from the date of the decision of the appeal. 5. There was an appeal taken against this decision by defendants 11 and 12 to the Privy Council, and their Lordships of the Judicial Committee reversed the decision of the High Court and held that there was an appeal within the meaning of Art. 182 (2), Limitation Act and time would run from the order made by the High Court. On behalf of the judgment-debtors the decision of the High Court was sought to be supported on three grounds namely (1) that the appeal preferred by Madden Mohan on 27th August 1920 was by reason of its irregularity not an appeal at all, but an abortive attempt to appeal; (2) that an appeal in order to save limitation under cl. (2) of the Article must be one in which the persons affected by it namely the judgment-debtors were parties and (3) that it must be also one in which the whole decree was imperilled. In their Lordships' opinion none of these contentions was of any avail to the judgment-debtors. "The question" thus runs the judgment, must be decided upon the plain words of the Article : 'where there has been an appeal, time is to run from the date of the decree of the appellate Court. In their Lordships' opinion none of these contentions was of any avail to the judgment-debtors. "The question" thus runs the judgment, must be decided upon the plain words of the Article : 'where there has been an appeal, time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced...... But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the Article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the Appellate Court's decree. 6. It is not disputed that their Lordships of the Judicial Committee were not called upon to decide a case like the present where the appeal was not from the decree sought to be executed or a portion of it but from an order made on an application to set aside the decree which was passed ex parte. Their Lordships laid particular stress on the fact that in the case before them the appeal was against the mortgage decree dated 24th June 1920. In their opinion the character of the appeal was altogether immaterial; it was also immaterial as to who were made parties to it and whether or not it imperilled or affected the entire decree. Their Lordships laid particular stress on the fact that in the case before them the appeal was against the mortgage decree dated 24th June 1920. In their opinion the character of the appeal was altogether immaterial; it was also immaterial as to who were made parties to it and whether or not it imperilled or affected the entire decree. It was enough that there was an appeal in the sense that the appellate tribunal was invited to set aside a decision of a subordinate Court and therefore it attracted the operation of cl. (2) of Art. 182, Limitation Act. In our opinion this decision is no authority for the proposition that the appeal contemplated by Art. 182 (2), Limitation Act, need not be directed against the decree which is the subject-matter of execution or a portion of it and it is enough if there was an appeal from an order passed in a separate or independent proceeding the result of which might affect the decree in any event. The doctrine of imperilling the decree upon which the decision of the Judges of this Court rested was expressly reversed by their Lordships of the Judicial Committee. 7. Dr. Sen Gupta is undoubtedly supported in his contention by certain recent decisions of some of the other High Courts in India. In the case in 16 Pat. 306 Firm Dedhraj Lachminarayan v. Bhagwan Dais ('37) 24 A. I. R. 1937 Pat. 337 : 16 Pat. 306 : 169 I. C. 581 it was held by a Letters Patent Bench of the Patna High Court that the words "where there has been an appeal" in cl. (2) of Art. 182, Limitation Act, do not mean that the appeal must be against the decree in the suit. They include an appeal against an order made on an application for re-hearing of an appeal under O. 41, R. 21, Civil P. C. The learned Judges were of opinion that the contrary view taken in the previous decision of the Patna High Court in 3 Pat. L. J. 119 Brij Raj v. Naurattan Lal ('17) 4 A. I. R. 1917 Pat. 157 : 3 Pat. L. J. 119: 44 I. C. 575 has been impliedly overruled by the decision of the Privy Council in 59 I. A. 283 Nagendra Nath Dey v. Suresh Chandra Dey ('32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 157 : 3 Pat. L. J. 119: 44 I. C. 575 has been impliedly overruled by the decision of the Privy Council in 59 I. A. 283 Nagendra Nath Dey v. Suresh Chandra Dey ('32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). In A. I. R. 1939 Mad. 157 Sriram Chandra v. Chintamani Bhatta Venkateswararao ('39) 26 A. I. R. 1939 Mad. 157 : I. L. R. (1939) Mad. 252 : 181 I. C. 491 decided by the Madras High Court, the facts were almost identical with those of the case before us. There was also an application to set aside an ex parte decree and an appeal taken against the order of dismissal passed in that proceeding and it was held that time for execution of the original decree would run from the date when the final order of the appellate Court was passed in the proceeding under O. 9, R. 19, Civil P. C. The learned Judges proceeded upon the basis of the observation of the Judicial Committee which we have set out above; and although their Lordships of the Judicial Committee were not dealing with an appeal against an order refusing to set aside an ex parte decree the principles contained in the passages in the judgment quoted above were according to the learned Judges wide enough to cover the present case. In their opinion, it does not necessarily follow that because a decree or order is mentioned in column 1 of Art. 182, the appeal mentioned in column 3 must be against the decree or order. It would be equally logical to say that it must be something which affects the decree or order. With all deference to these learned Judges we are unable to subscribe to the view taken by them. In the case before the Judicial Committee the appeal preferred by the plaintiff was against the final decree in the mortgage suit. It was not against the entire decree but purported to be directed against that portion of it which negatived the claims of the plaintiff which he put forward on the basis of assignment from some of his co-mortgagees. The appeal, as stated above, was defective in form and was not properly stamped. It was not against the entire decree but purported to be directed against that portion of it which negatived the claims of the plaintiff which he put forward on the basis of assignment from some of his co-mortgagees. The appeal, as stated above, was defective in form and was not properly stamped. Their Lordships of the Judicial Committee held that they must go by the language of the Article and equitable considerations were quite irrelevant to the construction of a statute of limitation. The Article speaks of an appeal. Here there was an appeal directed against the decree though it was limited in its character and defective in its form. But these were immaterial if there was in fact an appeal from the decree sought to be executed. The decree-holders were entitled to the extended period of limitation provided there by Art. 182 (2), Limitation Act and the question whether the appeal imperilled the entire decree or not was altogether irrelevant. In our opinion if the view taken by the Madras and Patna High Courts be accepted as sound the expression 'appeal' in cl. (2) of Art 182, Limitation Act would mean an appeal which may not be directed against the decree or order sought to be executed but has the effect of affecting or imperilling the said decree. This would be introducing, for all practical purposes, the doctrine of imperilling the decree which was expressly repudiated by their Lordships. Their Lordships definitely held that whether or not the appeal imperilled the decree was irrelevant to the enquiry and the only thing material was whether there was in fact an appeal, no matter whether it was defective in form and of a partial or fragmentary character. 8. Dr. Sen Gupta also drew our attention to a decision of the Bombay High Court which is to be found reported in 57 Bom. 388 Nagappa Bandappa v. Garushantappa ('33) 20 AIR 1983 Bom. 255 : 57 Bom. 388: 147 I. C. 1227. The facts of that case were different from those of the present one. There a decree for money was reduced on an application for review presented by the defendants. The decree-holders preferred an appeal against the order granting the review but not against the amended decree made after review. 255 : 57 Bom. 388: 147 I. C. 1227. The facts of that case were different from those of the present one. There a decree for money was reduced on an application for review presented by the defendants. The decree-holders preferred an appeal against the order granting the review but not against the amended decree made after review. It was held that the time for execution of the new amended decree would run from the date on which the appeal against the order granting review was dismissed. If the appeal was preferred against the amended decree undoubtedly the decree-holders could invoke the provisions of cl. (2) of Art. 182, Limitation Act, as a 'decree' would include an amended decree as well but if there was no appeal from the amended decree it is difficult to say how the period of limitation would be enlarged by an appeal from any order passed in the course of the suit. If that is the position, limitation could also be extended by an appeal taken against a subsequent decree which might be passed in a suit to set aside the original decree which is sought to be executed. In our opinion, a broad proposition like this cannot be inferred either from the actual decision of their Lordships of the Judicial Committee in 59 I. A. 283 Nagendra Nath Dey v. Suresh Chandra Dey ('32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.) or from the observations made by their Lordships in the course of the judgment which we have set out in extenso above. 9. Dr. Sen Gupta argues that the Legislature in Art. 182 (2), Limitation Act, uses the word 'appeal' generally without any qualification, and it cannot be limited to an appeal against a decree which is sought to be executed. He cites two classes of cases where this interpretation would lead to anomalous results. The first is where a decree is amended subsequently on an application by a party to the suit and on an appeal being taken against the amended decree the appeal is allowed and the original decree is restored. He says that time in such cases must run from the date of the appellate judgment and not from the date of the original decree which was eventually restored by the appellate Court. He says that time in such cases must run from the date of the appellate judgment and not from the date of the original decree which was eventually restored by the appellate Court. This would undoubtedly be the position; but as has been said already the word 'appeal' in cl. (2) is wide enough to include an appeal from an amended decree. The decree that can be executed is the final decree made on appeal from the amended decree and it is quite immaterial that the appellate Court exercising its appellate powers varied the amended decree and restored the original decree of the Court. This class of cases, therefore, does not militate against the view taken all along in our Courts that the appeal in cl. (2) of Art. 182, Limitation Act, means the appeal from the decree sought to be executed. The other class mentioned by Dr. Sen Gupta covers cases where an appeal is preferred against a preliminary decree and a final decree is passed subsequently which is not appealed against. If the appeal against the preliminary decree is dismissed time for execution of the final decree would run not from the date when the final decree was passed but from the date when the appellate judgment was pronounced in the appeal taken against the preliminary decree. We think that this admits of an explanation for the appeal against the preliminary decree is in substance though not in form an appeal against the final decree also and the final decree has got no existence apart from the preliminary decree. But it is not necessary for us to examine all sorts of hypothetical cases that might arise for consideration. The whole question that requires decision in this appeal is whether the view taken by this Court in a series of cases to the effect that an appeal from an order rejecting an application to set aside an ex parte decree under O.9, R. 13, Civil P. C., does not extend the period of limitation for execution of the decree under Art. 182 (2), Limitation Act, has or has not been superseded by the pronouncement of the Judicial Committee in 59 I. A. 283 Nagendra Nath Dey v. Suresh Chandra Dey ('32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). For the reasons given above we are decidedly of the opinion that the answer to this question must be in the negative. The result is that the first point raised by the appellant is quite sound and in our opinion the application for execution is barred by limitation. 10. The next question then arises whether the judgment-debtor is estopped from raising the question of limitation at all in the present proceeding. It appears from the records that on 20th December 1943 when the application for execution was registered the Court directed issue of notice under O. 21, R. 22, Civil P. C. The peon's report shows that on 31st December 1948 notice under O. 21, R. 22, Civil P. C., was served upon the judgment-debtors including the present appellant. The orders for delivery of possession were made by the Court on 30th March and 3rd April 1944. Judgment-debtor 5 presented his objection under S. 47, Civil P. C., only on 22nd April 1944. It cannot be disputed that if the notice under O. 21, R. 22 was actually served upon the judgment-debtor and he was apprised of the fact that the decree-holders had started proceedings for execution of the decree by delivery of possession of the properties and if in spite of the notice he remained silent, he cannot, at a subsequent stage of the proceeding, raise the question of limitation which must be deemed to have been decided against him when the Court made the order for execution : vide the case in 37 C. W. N. 752 Lalit Mohan Roy and Others Vs. Sarat Chandra Saha, AIR 1933 Cal 855 . The controversy thus centres round the point as to whether the notice was really served upon the appellant and he had the opportunity of putting forward his contention against the decision of the Court directing delivery of possession to be made against him. The peon's report shows that defendant 5 was absent from his house at the time when the peon went there to serve the notices. He had on that day gone to Netrakona in connection with a criminal case. Defendant 4 who is a brother of defendant 5 was present on the spot and he having refused to accept notice it was hung upon the fencing of the katchari bari. He had on that day gone to Netrakona in connection with a criminal case. Defendant 4 who is a brother of defendant 5 was present on the spot and he having refused to accept notice it was hung upon the fencing of the katchari bari. The peon says in his report that this service was effected in the presence of two witnesses namely Hriday Chandra Dey and Kumud Chandra Bhattacharji. Neither the peon nor the above two witnesses were examined in this case and the Subordinate Judge was apparently labouring under a misapprehension when he observed in his judgment that both the two had put their signatures on the return of the serving peon. As a matter of fact, only one of the witnesses named Hriday signed the paper and not the other. Dr. Sen Gupta relies upon O. 5, R. 15, Civil P. C., which empowers the serving peon to serve notices on any adult male member of the family of the defendant in case the defendant cannot be found and has no agent empowered to accept the service. It does not appear from the evidence adduced in the case as to whether the peon made any enquiries about defendant 5 or satisfied himself that he was not likely to return very soon. Apparently, he did not wait and made no effort to serve the notice upon him personally. It is also not clear from the evidence as to whether defendant 4 was a member of his family. The finding of the Subordinate Judge on this point is certainly unsatisfactory and the whole matter requires reconsideration. 11. We would accordingly allow the appeal and set aside the judgment of the learned Subordinate Judge. The case would go back and the Court below will on the evidence already recorded and on such further evidence as might be adduced by the parties come to a definite finding as to whether notice under O. 21, R. 22, Civil P. C., was duly served upon defendant 5. If he finds that the notice was duly served, defendant 6 would be deemed incompetent in law to question the order for execution that was made after the service of notice upon him under O. 21, R. 22, Civil P. C. If the Court decides that the notice was not duly served the application for execution will stand dismissed on the ground of limitation. We make no order as to costs in this appeal. Future costs will be in the discretion of the Court below. Sharpe, J. 12. I agree.