1. This appeal arises from an order in execution of a decree for recovery of possession of property with rent past and future. The decree was passed on 31-1-1950. The first execution petition filed on 26-10-1950 was dismissed for default on 19-2-1951. The next execution petition was filed on 23-7-1955 and the prayer was for recovery of the amount decreed as rent. The judgment-debtor filed objections contending that execution of the decree was barred by limitation and that the amount claimed was not due. These objections were over-ruled and he has preferred this appeal.
2. The two points which arise for decision are:
(1) Whether execution is barred by limitation? and (2) Whether the amount claimed by the decree-holder is due under the decree
3. As regards the question of limitation, the argument advanced on behalf of the appellant was that the decree was not a registered one and that the second execution petition being one filed beyond a period of three years from the date of disposal of the earlier petition, was barred under Article 182 of the Limitation Act. As the suit was one for recovery of property on the basis of a lease, the plaintiff paid registration fees also along with the plaint,
The defendant did not specifically raise a plea that the decree was not registered & the decree-holder was therefore not bound to state or prove that the decree was registered. The learned Judge held on the basis of a Full Bench decision of the Travancore; High Court reported in 1946 Trav LR 409 (A) that even if registration had not been effected due to any mistake or omission of the court, such mistake could not disentitle the decree-holder of the benefit of a period of six years under Article 152.
There are certain earlier decisions holding a contrary view but so far as this 'case is concerned it is unnecessary to consider the matter further in the absence of a specific plea that the decree was not registered. Learned counsel for the, appellant contended that the decree was actually registered and that tin's objection not having been specifically raised he did not prove the' same. We hold that the court below was right in treating the decree as a registered one.
4. The next objection relates to the amount allowed to be recovered. The suit was one for recovery of leased properties with rent past and future. The decree does not specify the quantum of rent allowed after the date of suit. -The decree-holder produced a copy of the plaint and the judgment in the case. The judgment states as follows:
'Future pattom also allowed for three years or till recovery of property, at the rate claimed in the i plaint.'
5. This is a case in which the decree has to be construed with the aid of the judgment and the pleadings. It is seen from the plaint that the plaintiff claimed rent from the date of suit till date of recovery of possession at the rate of Rs. 2,500/- per annum. When the trial court held that future pattom was allowed at the rate claimed in the plaint it is clear that what was allowed was rent from the date of suit at the rate of Rs. 2,500/- pre annum.
It is however seen from the execution petition that the decree-holder claimed rent at the rate of Rs. 5,000/- per annum from 10-4-1950. This claim is quite unsupportable by the terms of the decree and learned counsel for the respondent did not attempt to support the same. We therefore bold that the decree-holder is entitled to claim rent from the date of suit at the rate of Its. 2,500/- per annum only. Another question that arises in this connection is the ' period from which future rent can be allowed. The nature of the transaction which has given rise to tins decree has to be considered in deciding this question,
The defendant-mortgaged the properties with possession to the plaintiff who leased the same to the defendant at the same time. The decree was obtained on the basis of that lease. The defendant' filed a later suit against the plaintiff as O. S. No. 152 of 1951 of the District Court of Kottayam for redemption of the mortgage. He deposited the mortgage money also along with the plaint. That suit was decreed terminating the mortgage as on the date of the plaint, viz., 4-8-1951. Copies of the judgment and decree in O. S. No. 152 were produced in this court and we have allowed the application for admitting the same in evidence.
The question is whether the decree-holder is entitled to recover rent after 4-8-1951 when his rights as mortgagee lessor terminated. We feel no doubt that the later decree must be given effect to. The later decree is between the same parties and the earlier decree is inconsistent with the terms of the later one.
In such a case the earlier decree becomes unenforceable and this position has been laid down at least in two reported decisions of this court viz., Arumukom Nadar v. Saidukannu Pakeer Pillai 1950 Ker LT 32 (B) and Padmanabhan Krishnan v. Mathevan Pillai Kesava 1952 Ker LT 319: (AIR 1952 Trav C 294) (C). The relation of lessor and lessee came to an end when the decree-holder ceased to be the mortgagee in possession and the judgment-debtor cannot be made liable for rent after such date. The decree-holder is not' therefore entitled to claim rent after 4-8-1951.
6. In the result, the appeal is allowed to this extent only viz., (1) the judgment-debtor is liable for rent at the rate of Rs. 2;500/- only from the date of plaint, i.e., .10-11-1949, till 4-8-1951 and (2) that the decree-holder is 'not entitled to future rent after 4-8-1951. The order of the lower court will stand modified accordingly. The appeal is dismissed in other respects. We direct both sides to bear 'their costs.