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 ILR (1900) 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 Pillai LR 2 IA 219. In that case, Sir James Colville, who delivered the judgment of the Judicial Committee, said : 'But even if it did not, they think that upon the ordinary principles of estoppel the respondent cannot now be heard to say that the mesne profits in question are not payable under the decree....The Court here had a general jurisdiction over the subject-matter, though the exercise of that jurisdiction by the particular proceeding may have been irregular. The case therefore seems to fall within the principle laid down and enforced by this Committee in the recent case of Pisani v. Attorney-General of Gibraltar LR 5 PC 516 in which the parties were held to an agreement that the questions between them should be heard and determined by proceedings quite contrary to the ordinary cursus curiae. 'In that case there was no decree for subsequent mesne profits but the defendant had executed certain security bonds in which he had undertaken to account in respect thereof to the Court, and their Lordships said that the amount of subsequent mesne profits not provided for in the decree could be recovered in execution. This case was applied in Sheo Golam hall v. Beni Prosad ILR (1879) C 27, Lakshmana v. Sukiya Bai ILR (1884) M 400, Narayan v. Raoji ILR (1904) B 393 and Thakoor Dyal Singh v. Sarju Pershad Misser ILR (1892) C 22 in which the facts are somewhat similar and Subramania Chettiar v. Rajah of Ramnad ILR (1917) M 327 : 1917 34 MLJ 84 where the principle is the same but facts were somewhat different. In Venkatagiri Aiyar v. Sadagopachariar (1900) 14 MLJ 359 the agreement itself was void as it was not sanctioned by the Court and an agreement which had no legal existence could not be relied on for the purpose of raising an estoppel. There is therefore no scope in that case for applying this principle. Nor does the point appear to have been argued. In Lodd Govindoss v. Ramadoss (1915) M W N 225 it does not appear that the facts are such as to give rise to an estoppel. Anyhow the point was not argued : and though these cases support the general principle that a decree cannot be altered by a Court, they are not authorities for not applying the principle in Sadasha Pillai v. Ramalinga Pillai LR 2 IA 219. It is argued for the appellants that in the case in Sheo Golam hall v. Beni Prosad ILR (1879) C 27 and in other cases where the decision in Sadasiva Pillai v. Ramalinga Pillai LR 2 IA 219 was applied, the Court itself passed an order acting upon the agreement between the parties; and it was because of such an order that it was held that the party was estopped. We do not see any reason for thinking that the essential bases of the decision in Sadasiva Pillai v. Ramalinga Pillai LR 2 IA 219 is an order of the Court and not the conduct of the opposite party. Following the above cases we must hold that the appellant is estopped from raising this objection in execution. In the language of the learned Judges (Ainslie and Broughton, JJ.) who decided Sheo Golam hall v. Beni Prosad ILR (1879) C 27 the question whether such an agreement does or does not violate the rule that a Court cannot add to its decree becomes under the circumstances one which the Court will not enter into : the party who seeks to raise such question being estopped by his own conduct and the action of the Court taken thereunder.
3. The second point argued by the appellant is that the part-payment of Rs. 10,000 towards the decree should be proportionately allocated towards the Rs. 20,000 recoverable from the properties in the first schedule and the Rs. 10,000 recoverable from the properties in the second schedule. We do not see any reason why this should be done. Beyond the limit of Rs. 20,000 imposed upon the execution of the decree from the properties in the first schedule there is no other restriction. The decree is all one. It was for Rs. 30,000 and odd. After the part-payment, it still remains a single decree and the mortgagee is at liberty to recover the amount to any extent from any property he likes subject to the only restriction that he cannot realise more than Rs. 20,000 from the properties in the first schedule and more than Rs. 10,000 from the properties in the second schedule. This contention must be disallowed.
4. The third point mentioned by the appellant is that it should be made clear that any properties to be found in the premises of the ginning factory which is an item of property in the first schedule ought not to be included in the sale; but we do not think that it is necessary to pass any directions in this respect. The mortgaged property was a ginning factory. If it had received any accretions in the interval they will also pass with the sale but properties which cannot be regarded as part of the ginning factory cannot pass with the sale. It is unnecessary to give any directions. The sale will take effect in the usual course and in the proper manner and will comprise only the mortgaged property with its accretions.
5. The last point argued by the appellant is that the sale proclamation should mention the value of the first item as Rs. 40,000. It would seem that this was the value at one time adopted by the decree-holder, but in the proclamation, as issued last, the value was mentioned as Rs. 25,000 and at the time no objection was made by the judgment-debtor. The respondent has no objection to the value being mentioned as Rs. 40,000 at the time of the sale, if it can be done; bur. the appellant has waived the right to ask for a fresh proclamation if the appeal is dismissed. Stay of execution was granted only on that ground and to vary the proclamation now will be to grant him additional time. If the appellant so desires the Subordinate Judge may provide that the fact might be mentioned at the time of the sale by the officer who conducts the sale. Beyond this we do not think it necessary to give any directions.
6. The appeals substantially fail and C. M. A. Nos. 245 and 246 are dismissed with costs and C. M. A. No. 247 is dismissed but without costs.