Estoppel in execution proceedings and the discretion of the court in determining allocation and inclusion of properties in the sale.

1. These are three Civil Miscellaneous Appeals, two being against the orders of the Subordinate Judge of Ramnad and one against the order of the Subordinate Judge of Tuticorin. Practically the same points arise in all the three appeals. The questions arise in execution of a mortgage decree. The preliminary decree was passed on the 17th July, 1920 by the Subordinate Judge of Tuticorin. It was a decree for a sum of Rs. 30,836 and odd and provides for the recovery of the amount by the sale of the properties in the first schedule up to a limit of Rs. 20,000 and of the properties in the second schedule up to a limit of Rs. 10,000. The balance, if any, was to be recovered from the first defendant personally. The final decree was passed on 21st March, 1922. In the interval between the two decrees, a sum of Rs. 10,000 was paid, and the final decree mentions this fact and provides for the usual decree for the balance. On the 10th November, 1922, an agreement was arrived at between the mortgagee-decree holder and the first defendant by which the mortgagor agreed to pay a higher interest at the rate of Rs. 1-4-0 per hundred per mensem or 15 per cent per annum, in consideration of the mortgagee giving him time. It also recites the fact that the mortgagor applied on earlier occasions for extension of time and was granted. The agreement further provided for the enhanced rate being recovered in execution. This agreement was reported to the Subordinate Judge of Tuticorin and an application was made to record it. The petition was filed under Order 21, Rule 2, and the Subordinate Judge passed an order accordingly, "Adjustment as prayed for." Order 21, Rule 2 strictly does not apply. There is really no adjustment that has been reported to the Subordinate Judge. The agreement merely provides for postponement of the execution of the decree and for an enhanced rate of interest being recovered by the decree-holder. If the application was made within six months from the date of the decree, Order 20, Rule 11 (2) would have been applicable to it; but if that provision of law was mentioned, probably then the application would have been held to be barred. Anyhow, no objection as to limitation was taken, and, by consent of the plaintiffs and the mortgagor, the order was passed. The second defendant, a co-mortgagee, objected to the record of the adjustment, but his objection was overruled. In February, 1924 the mortgagor began to object to the higher rate of interest. The decree having been transmitted for execution from Tuticorin to Ramnad, he took the objection both in the Ramnad Sub-Court and also in the Tuticorin Court. That is why we have got appeals from both Courts. The objection was disallowed by the Subordinate Judge.

2. The first point argued by the learned Advocate-General, who appeared for the appellant-mortgagor, is that the agreement by which the mortgagor bound himself to pay an enhanced rate of interest at 15 per cent per annum cannot be enforced in these execution proceedings. He contends that to allow the point to be taken in execution proceedings practically amounts to amending the decree. He relies on Kotaghiri Venkata Subbamma Rao v. Vellanki Venkatarama Rao (1900) ILR 24 M 1, where it was laid down by the Privy Council that a decree cannot be altered by a Court even with the consent of the parties, except in the modes recognised by law, viz., either by an application for the amendment of the decree to bring it in accordance with the judgment or by a review of the judgment or by an application under Order 20, Rule 11 (2). This decision has been followed and recognised in a number of other decisions both in Madras and in the other High Courts. He argues that though the agreement itself may be binding, it should be enforced in a suit and not in execution. To this objection Mr. Varadachariar, who appeared for the respondent, replies that the appellant is estopped from raising this point. He relies on Sadasiva Pillai v. Ramalinga Pi