1. This appeal arises out of an order in the execution of a mortgage decree. The mortgage instrument is not before me, but from the recital in the preliminary decree it would appear that it provided for the payment of the amount due in ten annual instalments, with a default clause that if two consecutive instalments were in arrears, the mortgagee could claim the whole. In fact the mortgagee elected to sue only on ihe two instalments which were in arrears and he got a mortgage decree for the payment of these amounts. He must therefore be taken to have waived his right to enforce the default clause. When the hypolheca was put up for sale an objection was raised which is not very clearly stated, but appears to have been directed to two points, firstly, that more of the property was sold than was necessary to realise the arrears and secondly, that the sale could not be held subject to the remaining instalments of the mortgage debt in respect of which no suit had been filed. In so far as the objection was made to the extent of the land covered by the sale proclamation, I doubt very much whether the order is appealable at all. In so far as it relates to the power of the mortgagee to sell the land subject to the balance of his mortgage rights, it must, I think, be held that this is an order on a dispute between the parties arising out of execution and affecting the substantial rights of the judgment-debtor and is therefore appealable.
2. The basis of the objection has been stated here somewhat differently from the way in which it appears to have been stated in the Courts below. It is contended that, on the analogy of Section 67(a) of the Transfer of Property Act which of course does not apply in terms to the present proceedings, the mortgagee is bound to sue on the whole of his mortgage and that he not having done so, the decree must be executed by the sale of the properties free of the balance of the mortgage. No authority has been quoted covering the contention raised. It seems to me clear that the objection is really not one to the manner of execution so much as to the decree which has been obtained. If the mortgagee was bound to sue on the whole of his mortgage, then the plea should have been raised in the suit and the mortgagee should have been given an opportunity of either paying court-fee on the whole of the claim and getting a decree thereon, or of abandoning so much of the mortgage claim as it was not worth his while to pursue. The defendant cannot keep such an objection in reserve to be used in the process of execution. The decree itself makes the property liable to be sold to realise the amount due in respect of the first two instalments and it does not affect the rights of the decree-holder under the balance of his mortgage.
3. Quite apart from the question of the time at which this objection should have been urged I doubt very much whether the objection is sound in substance; for the principle of Section 67(a) of the Transfer of Property Act could not be applied unless there were either two mortgages Or, possibly, two separate portions of the same mortgage both of which were payable. The present instrument apparently provided that the mortgagee might teat the whole of his mortgage as payable on default in respect of the two first instalments. This is presumably an option given to the mortgagee and, if he chooses to waive the penalty and sue merely on those instalments which Were due, the mortgagor has the benefit of a deferred liability to pay the balance of the mortgage debt. He cannot in my opinion be heard to say that the mortgagee was bound to enforce a penalty against himself. Whichever way one looks at the case, the appeal has no substance and is dismissed with costs.
4. Leave refused.