1. This appeal relates to the execution of a mortgage decree now held by the Official Receiver of Tinnevelly, who is the appellant before us. The decree provides that certain items of property in the possession of the third and fourth defendants, who were parties to the mortgage, should be sold first and that then if there was a further sum to be realised the items in the possession of the fifth and sixth defendants, who were purchasers of the equity of redemption of those items, should be brought to sale. There were several execution petitions but we need only refer in the first place to E.P. No. 18 of 1923 where an order for sale in accordance with the decree of the third and fourth defendants' properties was made. This sale was stayed under an order passed by Wallace, J., in C.M.P. No. 3947 of 1923 which runs as follows:
Properties in the hands of defendants five and six will be sold first. If they do not realise the full decree amount, properties in the hands of appellants (defendants three and four) will be sold, on the same day.
2. When the Civil Miscellaneous Appeal came before a Bench for disposal the order passed ran thus:
By consent, there will be an order in terms of the compromise set out in the order on C.M.P. No. 3947.
3. It appears that the foundation for these orders was a compromise said to have been come to between the third and fourth defendants on the one side and the fifth and sixth defendants on the other in a separate proceeding in which the third and fourth defendants sued for a declaration that the mortgage was not binding upon them. We may take it that the effect of the compromise between these two pairs of defendants was that the fifth and sixth defendants agreed to have their properties sold first in execution of the mortgage. After the order passed by this Court the fifth and sixth defendants, who had not been parties to it at all, raised the objection in E.P. No. 27 of 1929 that the order could not bind them. That petition was dismissed, and we then come to the present petition filed by the decree-holder asking for the sale of the properties in accordance with the terms of the decree, namely that the third and fourth defendants' properties should be sold before those of the fifth and sixth defendants. The learned Subordinate Judge has come to the conclusion that the consent order passed in the Civil Miscellaneous Appeal is binding upon the parties until it is set aside and for this and some other reasons he has dismissed the petition. The result is that the decree-holder, who does not appear to be very much concerned as to the order in which the properties should be sold, finds himself in the position of being unable to sell any of them at all.
4. The question we have to decide is whether the order in Civil Miscellaneous Appeal No. 462 of 1923 should be taken as modifying the decree to the extent of disabling the decree-holder from executing it according to its tenor. In the first place the order in the Civil Miscellaneous Appeal is clearly an order passed in execution, and it is elementary that no order passed in execution can amount to an amendment of the decree or to an alteration of its terms. The question has then been raised before us whether it can be regarded as an adjustment of the decree in the sense that the third and fourth defendants have been excused some portion of the burden which they would otherwise have borne under it., We think there is ample authority against this view. It is not in fact at all a case of a partially adjusted decree as that phrase must be construed with reference to Order 21, Rule 2, Civil Procedure Code, but it is a case of a decree actually modified so far. as it directs the method of execution. A decision which has been followed in several later decisions in Lodd Govindoss Krishna Doss v. Ramdoss Vishnudoss (1915) 17 M.L.T. 222 where it was observed:
A transaction by which the parties agree to vary the terms of the decree, leading the altered terms to stand in the place of the terms of the decree so as to constitute a new executable decree.
5. In a later case of this Court to which one of us was a party Rajah of Kalahasti v. Venktadri Rao : AIR1927Mad911 the same principle was recognised, and Lodd Govindoss Krishna Doss v. Ramdoss Vishnudoss 32 C.W.N. 434 has also been approved in Asizur Rahman Chou-dhury v. Aliraja Choudhury 32 C.W.N 434 The same principle has been enforced in Bakshi Ram v. Des Raj A.I.R. 1931 Lah. 608. A Accordingly the order cannot receive any validity as an adjustment of the decree. Nor can, we think, the remaining suggestion, that it should operate as an estoppel, be accepted because it has not been shown that the third and fourth defendants have been led to do anything which they would not otherwise have done but for the representation of an agreement made to them by the decree-holder. We think accordingly that even if the fifth and sixth defendants had been parties to the proceeding in the Civil Miscellaneous Appeal it would still be Incumbent upon us to direct the execution of the decree as it stands. The fact that they were not parties makes it quite clear, we think, that the order cannot be in any sense binding upon them. They possess a valuable right in having the sale of their property postponed to that of the other defendants and it goes without saying that they cannot be deprived of that right by what took place in a proceeding to which they were not parties. If the third and fourth defendants had desired that the compromise which is said to have taken place between them and the fifth and sixth defendants should be given effect to in the execution of this decree they should have made them parties and it may be that this could in some manner then have been done. We are not concerned here to decide that question. But we think that the decree-holder must be permitted to execute his decree according to its tenor and we therefore allow the appeal and set aside the order of the court below and direct it to proceed with the execution accordingly. The appellant will have his costs in both Courts.