The main legal point established in the judgment is the interpretation and application of Rule 178 of the Civil Rules of Practice, Order 20, Rule 12 of the Civil Procedure Code, and Sections 5 and 6 of the Malabar Compensation for Tenants Improvements Act in determining the validity of the sale of a decree, the time limit for depositing the kanom amount and value of improvements, and the interpretation of the direction for future rent.

Chandrasekhara Aiyar, J.

1. This is an appeal by the first respondent against the order of the Subordinate Judge of South Malabar at Calicut in an execution petition. The decree was for redemption of a kanom and was passed on 29th June, 1923, in favour of the mexharthdar. It determined also the amounts due to the several defendants as value of improvements and directed that on the plaintiff paying into Court the kanom amount and the value of the improvements, less certain damages payable by the second defendant and future rent until surrender, the defendants should give up possession of the property to the plaintiff. This decree was attached by a creditor of the decree-holder who had obtained a decree against him in O.S. No. 847 of 1932. The decree was sold in auction and was purchased by that decree-holder and the application for execution is by her.

2. Execution was resisted by the first respondent (second defendant) on several grounds. Chief among them are (a) that the sale of a decree in Court auction is invalid and therefore the petitioner derives no rights under her purchase; (b) the deposit of the kanom amount and the value of improvements is a condition precedent to execution and as it was made more than twelve years after the date of the decree execution is barred; and (c) the direction that the amount payable by the plaintiff should be set off against future rent until surrender means only rent for three years and not for the full period from the date of the decree up to the date of execution as claimed by the petitioner. The learned Subordinate Judge, as did the learned District Munsiff, overruled the objections and allowed execution to proceed. The second defendant has preferred this second appeal raising the same objections.

3. There is a memorandum of objections by the respondent-petitioner in the Court below, that she should be given credit for Government revenue paid by her which the defendants were bound to pay and that as regards the value of improvements which the decree directed should be paid to the sub-tenants and which were actually paid by the original decree-holder, the learned Subordinate Judge was wrong in holding that such payments are not binding and that the value should again be deposited in Court as condition precedent to the delivery of possession.

4. Rule 178 of the Civil Rules of Practice no doubt says that no decree shall be ordered to be sold in execution of another decree; but when such a sale takes place without any objection being raised by the judgment-debtor, the sale cannot be held to be void or inoperative. On the other hand, there is the authority of Subbaraya Rowthu v. Kuppuswami Aiyangar I.L.R.(1908) Mad. 442 for holding that the sale is good.

5. There is no substance in the contention that the deposit of the kanom amount and the value of improvements was a condition precedent to the execution of the decree. The payment is no doubt a conditon precedent to the recovery of possession but not to the filing of an execution petition for such recovery. The present execution petition is within time and the obligation imposed by the decree as regards payment is that it should be made before the properties are surrendered.

6. The third point about future rent is a bit more complicated. Under Order 20, Rule 12, Civil Procedure Code, where a suit is for the recovery of possession of Immovable property and for rent or mesne profits, the Court in directing possession can direct an enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor or the expiration of three years from the date of the decree, whichever first occurs. Krishnan v. Kunhi Moidin Kutti (1899) 9 M.L.J. 334 and Godavarti Raja v. Uttaradi Matam Sri Ramachandraswami Varu AIR1943Mad354 are authorities for the proposition that where a decree directs payment of future rent till surrender, it must be taken to m