Jwala Prasad, J.

1. The judgment-debtor is the Appellant. He objects to the execution of the decree on two grounds(1) that the accounts prepared by the office are wrong, and (2) that a receiver may be appointed by the Court for the properties sought to be sold so that he may pay the balance of the decretal amount in due time. Both these grounds have been overruled by the Court below.

2. The first ground raises a question of appropriation of the sums paid by the judgment-debtor from time to time towards the satisfaction of the decree. It is said that the payments should have been appropriated towards the principal and not towards the interest.

3. Reference has been made by the learned Vakil on behalf of the Appellant to the final decree passed in the case on the 19th February 1915, the petition of compromise filed in Execution Case No. 39 of 1915 on the 25th September 1915 and the petition, dated the 5th April, 1917, filed by the decree-bolder, certifying payment of Rs. 23,000 and exempting a part of the mortgage properties None of these documents are clear as to an agreement between the parties relating to the appropriation of payments made by the judgment-debtor, namely, as to whether they should be credited towards the principal or the interest.

4. There is no indication of any intention of the parties that the payments made should be credited towards the principal in the first instance. In the petition of the 25th September 1915 the judgment-debtor accepted the figure mentioned in the sale proclamation, namely, Rs. 1,12,787,8-9 as the correct amount of the decree presumably both principal and interest and costs.

5. Referring to that petition the learned Subordinate Judge says: "So that the principal decretal money was considered by them to be Rs. 1,12,787,8-9 which includes costs and interest. Payments made were to be deducted out of that sum. Hence this objection fails. Interest was to run on the amount remaining due after the sum paid. There is no stipulation contrary to this. Therefore I disallow the objection and hold that the account is correct."

6. In the absence of any agreement to the contrary, the payments have first to be appropriated towards the interest and the balance of the payment, if any, is then to be credited to the principal. Secs. 59 to 61 of the Contract Act do not expressly deal with interest, but the principle underlying those sections can well apply to interest as well.

7. In the case of Luchmeswar Singh Bahadur v. Lutif Ali Khan (1871) 8 B.L.R. 110=2 Suther 461=2 Sar. 700 (P.C.), their Lordships of the Privy Council affirmed the above principle in the following words:-

8. Where payment was made upon a bond, the amount paid being lees than the interest due, held the payment ought to go to reduce the amount of interest due, and the creditor in a suit upon the bond was entitled to a decree for the principal and balance of interest up to date of decree." This principle of appropriation has been applied from earliest time to payments made with respect to mortgage debt: vide the case of Gooroo Doss Dutt v. Ooma Churn Roy (1874) 22 W. R. 525.

9. The argument of the learned Vakil, that the appropriation of payments towards the interest would practically amount to charging compound interest against the terms of the bond, can fee well met by referring to the following passage in the decision of the aforesaid case:-

"The balance of interest is never added to the principal so as to produce compound interest; but the practice appears to us to be that the payment so made is to be appropriated to the interest that has accrued. We believe that to be the established practice in cases of mortgages and we see no reason why that practice should not be followed in the execution of ordinary decrees."

10. See also the case of Maharaja of Benares v. Har Narayan Singh (1905) 28 All. 25=2 A.L.J. 585=1905 A.W.N. 167. The view taken by the Subordinate Judge is therefore correct, and the contention urged on behalf of the judgment-debtor is overruled.

11. Mr. Yunus also appearing on behalf of the judgment-debtor addressed us on the second point urging that, in the circumstances of the case, receiver should lie appointed in the interest of the decree-holder and the judgment-debtor. The decree-holder opposes the application of the judgment-debtor for the appointment of a receiver; therefore it cannot be said that the appointment of receiver would be for the benefit of the decree-holder.

12. Upon the merits of the case the Court below has held that no receiver ought to be appointed. In its opinion the income of the property is too small to satisfy within a reasonable time the large mortgage, still outstanding, of about Rs. 60,000. Apart from there being no substance in the application of the judgment-debtor on merits, I think, that it would be stretching too far the discretion of the Court under O. XL, R. 1 in the matter of the appointment of receiver, if we were to deprive the decree-holder of the right accrued to him under the decree to sell the mortgage property.

13. To do that would be to do away with the solemn agreement between the parties set forth in the mortgage bond expressly stipulating that the decree-holder shall be entitled to sell the property in order to realise the amount due thereunder. I do not think that the Court should step in and use the discretion, if any, vested by the aforesaid rule of the Code of Civil Procedure in order to rip up the contract entered into between the parties. The decree-holder knows his interest best and he has a right to stand upon the decree and to ask the court to sell the property.

14. I need hardly mention that section 51 of the Code has absolutely no application. That section prescribes the mode in which the decree-holder may seek an execution. of his decree, one of the modes being by the appointment of a receiver. The section does not give any right to the judgment-debtor to apply for the appointment of a receiver. I therefore, reject this contention also on behalf of the judgment debtor.

15. The result is that the appeal is dismissed with costs.

John Bucknill, J.

16. I agree.