The appeal is directed against the judgment and decree in O.S. No.42 of 1999 on the file of Senior Civil Judge's Court, Kavali, dated 10-06-2003, while the civil revision petition is directed against the order in E.A.No. of 2007 in E.P. No.24 of 2006 (34 of 2006 ?) in O.S. No.42 of 1999 of the same Court, dated 08-06-2007.

2. O.S. No.42 of 1999 was filed for recovery of Rs.2,49,302/-with interest and costs on the basis of a mortgage, dated 26-12-1991 for Rs.80,000/-agreed to be repaid with interest at 18 per cent per annum with triennial rests. The mortgage of the plaint schedule property was not redeemed and as no payment was made in spite of demands, the suit was filed for recovery of principal with the contractual interest (triennially compounded) by sale of the mortgaged property, if not redeemed within the time to be fixed by the Court, along with future interest from the date of the suit till realization and costs.

3. The suit was resisted contending that only Rs.30,000/-was paid under the mortgage and the balance of Rs.50,000/-was not paid on the next day as promised or at any time thereafter. The recited interest is invalid and ultra vires and only simple interest without rests can be claimed. The interest claimed is usurious, excessive, arbitrary and capricious and there was no notice prior to the suit. The defendant expressed his readiness to pay Rs.30,000/-with simple interest, if the rest of the claim were to be dismissed with costs.

4. On such pleadings, the trial Court framed issues on the execution of the mortgage deed, passing of consideration under it and the legality of the interest claimed. During trial, P.Ws.1 to 4 and D.W.1 were examined and Exs.A-1 and A-2 were marked.

5. In the impugned judgment, the trial Court concluded that failure of consideration to the extent of Rs.50,000/- was not probablised in the absence of any corroboration for D.W.1, the defendant and due to his silence up to the suit. The trial Court also concluded that the interest claimed only at 18 per cent per annum on the mortgage debt is not excessive. Accordingly, it granted a preliminary decree with costs as prayed for, granting three months time for redemption.

6. The preliminary decree drafted in pursuance of the said judgment calculated interest from the date of the suit till the date of decree at a sum of Rs.1,60,799/-.

7. The defendant challenged the said judgment contending that the oral evidence was not properly scrutinized and that the claim for interest was not properly appreciated. Granting interest on the suit amount but not the principal amount since the date of the suit is an error in law and hence, the defendant desired intervention with the judgment and decree under appeal.

8. Pending the appeal, an order of interim suspension of the judgment and decree was granted in C.M.P. No.6764 of 2004 on 12-03-2004 subject to deposit of Rs.1,00,000/-and costs within four weeks.

9. As the condition did not appear to have been complied with, the decree-holders proceeded with the execution in E.P. No.34 of 2006 in O.S. No.42 of 1999 and the defendant/judgment-debtor filed a petition claiming that in view of the decision reported in 2008 (1) ALT 665 = 2005 (2) ALD 134 (Viswanatham Bala Subba Rayudu v. Lakki Reddy Chennamma), the rule of Damdupat applies even to mortgage claims, about which he was unaware while contesting the suit. Therefore, the further proceedings in the execution be stayed and the total recovery be confined to Rs.1,60,000/-.

10. The executing Court passed the order challenged in the civil revision petition without taking the petition on file and after hearing the judgment-debtor, holding that the judgment-debtor owes a duty to raise such a plea in the suit or an appeal and the executing Court, which has to implement decrees and judgments, cannot go beyond the decrees and the rule of Damdupat is not applicable to execution proceedings.

11. The petition was accordingly rejected, against which the civil revi