JUDGMENT

Rankin, C.J. - This is an appeal from an order made by Lort Williams, J., upon a motion brought pursuant to a notice dated the fifth day of June, 1928 in the course of a suit to enforce a mortgage. It appears that the mortgage security was created in or about 1919 and that a sum of 12 lacs was advanced upon the security.

2. The suit in the course of which the order complained of is made was brought by the mortgagee Mr. Galstaun in June 1921 and that, as originally framed, was a suit against defendants 1 and 2-- the parties who had entered into the transaction with him. Defendant 3 was a puisne encumbrancer and at some stage of the suit certain other persons, some of whom were minors were made parties to the proceeding on the theory, that they might claim that they were interested in the mortgaged property being joint members of a Hindu Mitakshara family along with defendants 1 and 2.

3. The suit did not come on in the ordinary way for trial because it appears that on 25th March 1925 it was settled on the basis of certain terms scheduled to the consent decree of that date. It was declared with the consent of the parties appearing through their respective counsel that the said terms of adjustment ought to be carried out and the same were ordered and decreed accordingly The whole of the arrangement is given not in the body of the decree but in the schedule, that is to say, the language of the parties themselves is in the schedule Broadly speaking, the arrangement was this that these alleged Mitakshara co-sharers agreed that they had no interest in the mortgaged property, agreed to its being treated as a property which defendants 1 and 2 were entitled to pledge

4.. As regards defendant 3 he was not in a position to object to the enforcement of the mortgage Defendants 1 and 2, in these circumstances, proceeded to deal with the matter in this way that the arrears of interest upon the loan calculated up to the end of January 1925 were to be liquidated by the delivery of certain goods. That left to be dealt with a net sum of twelve lacs (Rs. 12,00,000) principal due upon the mortgage as from 1st February 1925 and with reference to this sum it was not necessary to make any calculation because there was a clean sum of twelve lacs (Rs.12,00,000) that was going to be dealt with by the arrangement. Now, the terms make defendants 1 and 2 admit that the sum of twelve lacs is due for principal" They then made them consent to a decree absolute for sale " for the said amount carrying interest at the rate of 7 percent per annum from 1st February 1925 until payment in full. So the agreement is an agreement to an immediate decree absolute. The terms go on to provide for stay of execution of that decree:

the decree will not be executed by the sale of the mortgaged properties or otherwise for a period of 5 years on certain conditions.

5. The conditions of the stay were that defendants 1 and 2 would pay off one lac in each year and that they would pay interest by equal monthly instalments on the amount due from time to time by the 15th of each month There is a clause which says that in the event of default in making those payments the whole of the balance of the decretal amount, interest and costs then due and unpaid will at once "become due" and the plaintiff will be at liberty:

to execute the decree by sale of the mortgaged properties in suit through Court in the usual way.

6. I am not of opinion that any light is thrown upon the present controversy by any other terms in this eon sent decree. A certain sum became the decretal amount, and order absolute for sale was made. It was stayed for a period of 5 years upon certain terms. It was provided that if these terms were not complied with, the plaintiff was to be at liberty to execute the decree by sale of the mortgaged properties in suit through Court in the usual way. It appears that default was made and on 27th January 1926 the plaintiff made an application to enforce his decree. By that time it