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PETITIONER: SULTANA BEGUM

       Vs.

RESPONDENT: PREM CHAND JAIN

DATE OF JUDGMENT:       10/12/1996

BENCH: KULDIP SINGH, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                THE 10TH DAY OF DECEMBER, 1996 Present:               Hon’ble Mr. Justice Kuldip Singh               Hon’ble Mr. Justice S. Saghir Ahmad      Rajinder  Sachhar,  Sr.  Adv.,  R.P.  Singh  and  Suman Kapoor, Advs. with him for the appellant      V.M. Tarkunde,  Sr. Adv.,  S.K. Jain  and Mr.  Pratibha Jain, Advs. with him for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T S. SAGHIR AHMAD, J.      Appellant before  us is  the landlady  of the premises, "Pink  City  Hotel",  Mumtaz  Bagh,  Jaipur,  which  was  in occupation of the respondent as a tenant against whom a suit for eviction on various grounds including default in payment of rent,  sub-letting, as also for bona fide requirement was filed, which  ultimately ended in a compromise on 16.9.1991. The compromise decree which was passed on that date provided that the  respondent would vacate the premises and hand-over its possession  to the  appellant or to her attorney, Ramesh B. Sharma,  by 10th of February, 1992, and that he would pay rent @  Rs.3,100/- per  month from the date of the suit till the date of delivery of possession. 2.   Since the  premises were  not vacated by the respondent and its  possession was  not handed over to the appellant in terms of the compromise decree, she filed an application for execution which  was resisted  by the respondent by means of objections filed  under Section  47 of  the  Code  of  Civil Procedure, in which it was pleaded by him that possession of the premises in question was handed over to Ramesh B. Sharma on 31.10.1991 who, however, allowed the respondent to remain in possession of the premises as a licence on payment of the licence fee  of Rs.5,000/-  per month.  It was  pleaded that since possession of the disputed premises was handed over to Ramesh B.  Sharma, who  was the legally constituted attorney of the  appellant, the decree stood satisfied and as such it could not  be executed. It was also pleaded that in terms of the fresh  licence, the  respondent  had  already  paid  the licence fee  @ Rs.5,000/-  to Ramesh B. Sharma, who had also

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issued a receipt to him. 3.   The appellant,  in reply, pointed out that the power of attorney executed  by her  in favour of Ramesh B. Sharma was cancelled by  notice dated  1.12.1991 and  by another notice dated 31st  January, 1992  Ramesh B. Sharma was required not to act as the appellant’s attorney in any manner whatsoever. It was pleaded that since the power of attorney in favour of Ramesh B.  Sharma had  already been  cancelled, there was no occasion for  the respondent  to have handed over possession of the  premises in  question to Ramesh B. Sharma, nor could Ramesh B. Sharma create a fresh licence in his favour. 4.   The  trial  court  by  its  judgment  and  order  dated 23.10.1992 allowed  the objections  of the  respondent in so far as  they related  to the  delivery of  possession of the premises in question to the appellant, with the finding that the respondent  had already  delivered vacant  possession to Ramesh B.  Sharma  who  was  still  the  legally-constituted attorney of  the appellant  on the relevant date, namely the date on  which possession was delivered by respondent to Mr. Sharma, which  date was pleaded to be 31st of October, 1991, i.e. The  date earlier  in time  than the  date on which the power of  attorney of Ramesh B. Sharma was said to have beer cancelled. It  was also found by the trial court that Ramesh B. Sharma  could legally create a fresh licence in favour of the respondent and could also issue receipts for the licence fee paid  to him  @ Rs.  5,00/- per moth. On these facts, it was found  by the  trial court  that the  decree had  become inexecutable. 5.   The appellant  filed a  Revision before  the  Rajasthan High Court which, by its judgment and order dated 21.9.1993, dismissed the  Revision. The  findings recorded by the trial court were  upheld and  it was  further found that Order XXI Rule 2  of the Code of Civil Procedure was not applicable to the facts of the case. It is in these circumstances that the appellant has come up in appeal before us. 6.   Learned counsel  for the  appellant has  contended that the agreement  set out  by the  respondent in his objections under  Section  47  CPC  that  possession  of  the  disputed premises was  handed over  to the  appellant’s  attorney  in pursuance of  the compromise decree and that the appellant’s attorney allowed  him to  stay  on  in  the  premises  as  a licencee on  payment of  the licence fee at a rate which was more than  the rate  at which  the  rent  was  paid  by  the respondent, amounted  to an  adjustment of the decree within the meaning of Order XXI Rule 2 CPC and, therefore, it could not be  recognised by the executing court in view of the bar created by  Sub-rule (3).  The decree,  it is contended, was still executable  and  should  have  been  executed  by  the executing court  which was  in error  in  relying  upon  the respondent’s  plea   that  possession  of  the  premises  in question was  delivered to  the appellant’s attorney and the decree for eviction stood satisfied. 7.   Learned counsel  for the  respondent, on  the contrary, contended that in view of Section 47 CPC, which specifically lays  down   that  all   questions  relating  to  execution, discharge or  satisfaction of  decree shall be determined by the  court   executing  the  decree,  it  was  open  to  the respondent to  raise the  plea regarding the inexecutability of  the   decree  and  the  executing  court  was  under  an obligation to  decide the  question whether  the decree  was inexecutable as possession had already been delivered to the attorney who  had reinducted him in the premises in question as a licencee. 8.   Section 47  and Order  XXI Rule  2 of the Code of Civil Procedure provide as under:

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    "47. Questions  to be determined by      the Court executing decree:      (1) All  questions arising  between      the parties  to the  suit in  which      the decree  was  passed,  or  their      representatives,  and  relating  to      the   execution,    discharge    or      satisfaction of  the decree,  shall      be   determined    by   the   Court      executing the  decree and  not by a      separate suit.      (2) . . . . . . . .      (3) Where  a question  arises as to      whether any parson is or is not the      representative  of  a  party,  such      question shall  for the purposes of      this section,  be determined by the      Court.      Explanation I  -- For  the purposes      of this  section, a plaintiff whose      suit  has   been  dismissed  and  a      defendant against  whom a  suit has      been dismissed  are parties  to the      suit.      Explanation  II   -  (a)   For  the      purposes   of   this   section,   a      purchaser of  property at a sale in      execution  of  a  decree  shall  be      deemed to be a party to the suit in      which the decree is passed; and      (b) all  questions relating  to the      delivery  of   possession  of  such      property to  such purchaser  or his      representative shall  be deemed  to      be  questions   relating   to   the      execution,       discharge       or      satisfaction of the decree within      the meaning of this section."      "ORDER XII  - EXECUTION  OF DECREES      AND ORDERS      2. Payment  out of Court to decree-      holder: (1) Where any money payable      under a  decree of any kind is paid      out of  Court, or the decree of any      kind is otherwise adjusted in whole      or in  part to  the satisfaction of      the  decree-holder,   the   decree-      holder shall  certify such  payment      or adjustment  to the  Court  whose      duty it  is to  execute the decree,      and the Court shall record the same      accordingly.      (2)  The   judgment-debtor  or  any      person who  has become  surety  for      the judgment-debtor also may inform      the  Court   of  such   payment  or      adjustment, and  apply to the Court      to issue  a notice  to the  decree-      holder to  show cause,  on a day to      be fixed  by the  Court,  why  such      payment or adjustment should not be      recorded  as   certified;  and  if,      after service  of such  notice, the      decree-holder fails  to show  cause      why  the   payment  or   adjustment

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    should   not    be   recorded    as      certified, the  Court shall  record      the same accordingly.      (2-A)  No   payment  or  adjustment      shall be  recorded at  the instance      of the judgment-debtor unless ----      (a) the  payment  is  made  in  the      manner, provided in Rule 1; or      (b) the  payment or  adjustment  is      proved by documentary evidence; or      (c) the  payment or  adjustment  is      admitted by,  or on  behalf of, the      decree-holder in  his reply  to the      notice given  under sub-rule (2) of      Rule 1, or before, the Court.      (3) A  payment or adjustment, which      has not  been certified or recorded      as   aforesaid,    shall   not   be      recognised by  any Court  executing      the decree." 9.   It  is   contended  by  the  learned  counsel  for  the respondent that since it is specifically provided by Section 47 that  questions relating  to the  execution, discharge or satisfaction of  the  decree  shall  be  determined  by  the executing court,  it would  prevail over  Order XXI  Rule  2 including Sub-rule  (3) which  prohibits the executing court from recognising  any payment  or adjustment  which has  not been certified  or recorded  under Order  XXI Rule  2. It is contended that  there is an obvious conflict between the two provisions  and,  therefore,  the  only  way  in  which  the conflict can  be resolved  is to  hold that Section 47 would prevail over Order XXI Rule 2. We do not agree. 10.  Part II  of the  Code of Civil Procedure, comprising of Sections 36 to 74, as also the whole of Order XXI consisting of Rules  1 to  106, deal  with  the  execution  of  decree. Section 47, as also Order XXI Rule 2 are, therefore, part of the same  legal or  statutory system  dealing with  the same subject, namely,  execution of  decree. That  being so,  the rule of  interpretation requires that while interpreting two inconsistent, or,  obviously repugnant  provisions of an At, the courts  should  make  an  effort  to  so  interpret  the provisions as  to ha  harmonise them  so that the purpose of the Act  may be  given effect to and both the provisions may be allowed  to operate  without  rendering  either  of  them otiose. 11.  The statute  has to  be read as a whole to find out the real intention of the legislature. 12.  In Canada Sugar Refining Co. vs. R. (1898) AC 735, Lord Davy observed:-      "Every clause  of a  statute should      be construed  with reference to the      context and  other clauses  of  the      Act, so  as, as far as possible, to      make a  consistent enactment of the      whole statute or series of statutes      relating to the subject-matter."      This Court  has adopted the same rule in M. Pentiah vs. Veeramallappa Muddala  AIR 1961  SC 1107;  Gamman India Ltd. vs. Union  of India  AIR 1974  SC 960  = (1974)  1 SCC  596; Mysore State  Road Transports  Corporation vs.  Mirza Khasim All  Beg   AIR  1977   SC  747;   Vaddeboyina  Tulsamme  vs. Vaddeboyina Sesha  Reddi AIR 1977 SC 1944 = (1977) 3 SCC 99; Punjab Beverages Avt. Ltd. vs. Suresh Chand AIR 1978 SC 995; Commissioner of Income-tax vs. National Tai Traders AIR 1980 SC 485;  Calcutta Gas  Co. (Proprietary)  Ltd. vs.  State of

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West Bengal  AIR 1962  SC 1044  and J.K.  Cotton Spinning  & Weaving Mills vs. State of U.P. AIR 1961 SC 1170.      This rule  of construction  which is  also spoken of as "ex visceribus  actus" helps  in avoiding  any inconsistency either within  a Section or between two different Section or provisions of the same statute.      On a  conspectus of  the case  law indicated above, the following principles are clearly discernible:      (1) It is the duty of the courts to      avoid a  head-on clash  between two      Sections of the Act and to construe      the provisions  which appear  to be      in conflict with each other in such      a manner as to harmonise them.      (2) The  provisions of  one Section      of a  statute  cannot  be  used  to      defeat the  other provisions unless      the court, in spite of its efforts,      finds  it   impossible  to   effect      reconciliation between them.      (3) It  has to  be borne in mind by      all the  courts all  the time  that      when  there   are  two  conflicting      provisions in  an Act, which cannot      be reconciled with each other, they      should be  so interpreted  that, if      possible, effect should be given to      both. This  is the  essence of  the      rule of "harmonious construction".      (4) The courts have also to keep in      mind that  an interpretation  which      reduces one  of the provisions as a      "dead letter"  or "useless  lumber"      is not harmonious construction.      (5) To  harmonise is not to destroy      any  statutory   provision  or   to      render it otiose. 13.  Interpreting the provisions of Section 47 and Order XXI Rule 2  in the light of the above principles, there does not appear to  be any  antithesis between  the  two  provisions. Section 47  deals with  the power of the court executing the decree with  Order XXI Rule 2 deals with the procedure which a court whose duty it is to execute the decree has to follow in a  limited class  of cases  relating to  the discharge or satisfaction of  decrees either by payment of money (payable under the  decree) out  of court  or adjustment in any other manner by consensual arrangement. 14.  Since Section 47 provides that the question relating to the execution,  discharge or  satisfaction  of  the  decrees shall be  determined by  the court  executing the decree, it clearly   confers    a   specific   jurisdiction   for   the determination of those questions on the executing court. 15.  Under Section  38 of the Code, a decree may be executed either by the court which passed it or by the court to which it is  sent for execution. The court which passed the decree has been  defined in  Section  37.  Transfer  of  decree  to another court  for its  execution has  been provided  for in Section 39.  Section 40 provides for transfer of decree to a court in  another State. Section 42 lays down that the court to which  a decree  is transferred  for execution shall have the same  powers in  executing that  decree as if the decree was passed  by itself. These provisions including Section 37 thus clearly  speak of  the powers  and jurisdiction  of the court executing the decree. 16.  Order  XXI   Rule  2  applies  to  a  specific  set  of

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circumstances. If  any money  is  payable  under  a  decree, irrespective of the nature of decree, and such money is paid out of  court, the decree-holder has to certify such payment to the court whose duty it is to execute the decree and that court has  to record  the same  accordingly. Similarly  if a decree, irrespective  of its nature, is adjusted in whole or in part  to  the  satisfaction  of  the  decree-holder,  the decree-holder has  to certify  such adjustment to that court which has  to record  the  adjustment  accordingly.  If  the payment or  adjustment is not reported by the decree-holder, the judgment-debtor  has been  given the right to inform the court of  such payment  or adjustment  and to  apply to that court for certifying that payment or adjustment after notice to the decree-holder. Then comes Sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under  Sub-rule (1) or (2), shall not be recognised by the court executing the decree. 17.  The words  "or the  decree of  any  kind  is  otherwise adjusted" are  of wide  amplitude. It is open to the parties namely, the  decree-holder and  the judgment-debtor to enter into a  contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to  an adjustment  of  the  decree,  it  has  to  be recorded by  the court  under Rule 2 of Order XXI. It may be pointed out  that an agreement, contract or compromise which has the  effect of  extinguishing the  decree in whole or in part on  account of  decree being  satisfied to  that extent will amount  to an  adjustment  of  the  decree  within  the meaning of  this Rule  and the  Court, if  approached,  will issue the  certificate of adjustment. An uncertified payment of money  or adjustment  which is  not recorded by the court under Order XXI Rule 2 cannot be recognised by the executing court. In  a situation  like this, the only enquiry that the executing court can do is to find out whether the plea taken on its  face value, amounts to adjustment or satisfaction of decree, wholly  or in  part, and  whether such adjustment or satisfaction had  the effect  of extinguishing the decree to that extent.  If the executing court comes to the conclusion that the  decree was  adjusted wholly  or in  part  but  the compromise or  adjustment or  satisfaction was  not recorded and/or certified by the court, the executing court would not recognise them and will proceed to execute the decree. 18.  The problem  can be  looked into  from another angle on the  basis   of  the   maxim  "generalia   speciallibus  non derogant." 19.  Section   47,  as   pointed  out  earlier,  gives  full jurisdiction and  power to the executing court to decide all questions relating  to execution, discharge and satisfaction of the decree. Order XXI Rule 3, however, places a restraint on  the  exercise  of  that  power  by  providing  that  the executing  court  shall  not  recognise  or  look  into  any uncertified payment of money or any adjustment of decree. If any such  adjustment or  payment is pleaded by the judgment- debtor before  the executing  court, the  latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court. 20.  The general  power of  deciding questions  relating  to execution, discharge or satisfaction of decree under Section 47 can  thus be  exercised subject to the restriction placed by Order  XXI Rule  2 including  Sub-rule (3)  which contain special provisions  regulating payment  or money due under a decree outside  the court  or in  any other manner adjusting the decree.  The general  provision under  Section  47  has, therefore, to yield to that extent to the special provisions contained in  Order XXI  Rule 2  which have  been enacted to

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prevent a  judgment-debtor from setting up false, or cooked- up  pleas   so  as   to  prolong   or  delay  the  execution proceedings. 21.  If Section  45 and  Order XXI Rule 2 are read together, as has  been done by us in this case, the so-called conflict (we say  "so-called" as,  in fact,  there  is  none)  stands dispelled by employing the rule of ‘harmonious construction’ or the  other rule  that the general provision must yield to the special provision. 22.  Coming now  to the  instant case, the respondent set up before the executing court in his objection under Section 47 that he had delivered possession to the appellant’s attorney who had  granted his the status of a licencee so that he may stay on  in the premises on payment of licence fee which was more than  the rent he had earlier paid. In pursuance of the licence granted  by the  attorney, the  respondent allegedly paid the  licence  fee  to  the  attorney  who  also  issued receipts to him. 23.  There are  three components  of this plea. The first is the  delivery   of  possession  by  the  respondent  to  the appellant’s attorney;  the second  is the  conferment of the status of  a licencee  on the  respondent  so  that  he  may continue to  occupy the  premises in  question on payment of licence fee  at a  higher rate;  and the third is the actual payment against  receipt indicating  that the  agreement was acted upon. 24.  The decree  was for eviction and the respondent himself had agreed in the compromise decree to deliver possession to the appellant  by 10th  of February, 1992. The plea relating to the  delivery of  possession pursuance  of the compromise decree, it  accepted, would  amount to  an adjustment of the decree which  shall consequently  to an  adjustment  of  the decree which  shall consequently  be treated  to  have  been partially  satisfied  to  the  extent  of  eviction  of  the respondent as  a tenant  from the  disputed  property.  That being so,  it had  to be  recorded and certified under Order XXI Rule 2. Since this was not done, the provisions of Order XXI Rule  2(3)_ prohibiting  the executing court from giving effect to  the said  plea were  applicable and the executing court acted  erroneously in  refusing to  execute the decree for eviction of the respondent on the ground that possession having been  delivered  to  the  appellant’s  attorney,  the decree, to that extent, stood satisfied. 25.  P. Narsaiah vs. P. Rajoo Reddy AIR 1989 AP 164, Bhabani Dasya vs. Tulsi Ram Keot AIR 1990 Guwahati 90 as also a full Bench decision  of the  Madhya Pradesh  High Court in Rajeev Khandelwal vs. Arun Pannalal AIR 1987 MP 262 are cases which have taken  the view  that uncertified payment or adjustment cannot be entertained under Section 47. The High Courts have gone to  the extent  of saying  that even if judgment-debtor pleaded fraud,  the executing  court would  not look  into a payment  or  adjustment  which  had  not  been  recorded  or certified under Order XXI Rule 2.      Same view  was also  taken in  Krishna Gobind Patil vs. Moolchand AIR  1941 Bombay  302, and  by the  Calcutta  High Court in  Sham Lal  Chatterjee &  Ors. vs. Hazarimal Babu 15 Calcutta Law  Journal 451  and in  Biroo Gorain  & Ors.  vs. Musstt, Jaimurat  Koer 16  Calcutta Weekly  Notes 923.  Even this Court  in Moti  Lal Bankers  vs. Mohd.  Hassan Khan AIR 1968 SC  1087 was  of the  same opinion  as it  laid down as under:      "It is open to the parties to enter      into a compromise with reference to      their rights  and obligations under      a decree.  There is  nothing in the

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    Code  of   Civil  Procedure   which      prevents the  parties from entering      into  such  a  compromise.  If  the      compromise amounts to an adjustment      of the  decree, it must be recorded      under  0.21,  R.2  and  if  not  so      recorded, it  cannot be  recognised      by any Court executing the decree."      Where an  application is  given  by a decree-holder for certification of  payment or  recording an adjustment. Order XXI Rule  2  presents  no  difficulty.  Where,  however,  an application is given by the judgment-debtor to the court for the certification,  the court  has to act judicially. It was observed by  the Privy  Council in  Shri Prakash  Singh  vs. Allahabad Bank Ltd. AIR 1929 PC 19 as under:      "Sub-rule    2    therefore    does      contemplate an  application by  the      judgment-debtor;    further,     it      provides for  notice being given to      the decree-holder,  it  affords  an      opportunity for  the  decree-holder      to  appear,   and  it   involves  a      judicial  decision   by  the  Court      whether  the   payment  should   be      recorded."      Proceedings under  Order XXI Rule 2 are, therefore, not mere empty  formality as  contended by  the respondent,  but they are judicial proceedings.      The High  Court has  relied upon  its own  decision  in Indra vs. Narayan Chand 1979 (2) RCR 1 and a decision of the Allahabad High  Court in  M/s Chitra  Talkies vs. Durga Dass Mehta AIR  1973 Allahabad  40. In  both the  cases, it was a fresh tenancy  which was  granted to the judgment-debtor and not a  licence as  in  the  instant  case.  That  apart,  on principles of  law, both the decisions, in our opinion, have not been correctly decided. As observed by us earlier, it is no doubt  open to  the parties to adjust or compromise their rights under  the decree, but if it amounts to adjustment of decree, it must be reported to the court whose duty it is to execute the  decree so that that court may record or certify the same.  If it  is not  done, the  court before  whom  the execution proceedings  are initiated will proceed to execute the decree.  It is not every time that the decree-holder and judgment-debtor enter  into a  compromise after  the decree. The  judgment-debtor  may  even  set  up  a  false  case  of compromise and  creation of  fresh tenancy after the decree. It is  in order  to prevent such judgment-debtors that Order XXI Rule  2 has  been enacted  so that if such compromise or creation  of  fresh  tenancy  has  not  been  recorded,  the judgment-debtor be  not encouraged to initiate another round of litigation under Section 47 CPC.      The decision  of this  court in  M.P. Shreevastava  vs. Mrs. Veena  1967(1) SCR 147 was a case where the husband had obtained a decree for restitution of conjugal rights against his wife,  who, after  the decree, returned to the residence of the  appellant and  offered to  live with  him. She  also wrote letters  to the  appellant requesting him to allow her to go  to his  house and live with him as his wife. Even the attempts of  certain friends  of the  family to persuade the appellant to  take the respondent back into the marital home also proved  to be  unsuccessful. The  wife then  moved   an application under  Order XXI  Rule  2  that  the  decree  be recorded as  satisfied as  the appellant had failed to allow the respondent  to resume  conjugal relations even after she went to  his house, which was allowed and it was held by the

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District Judge, Delhi, that the decree stood satisfied. This order was  upheld by  the High  Court. In  this  Court,  the principal question  raised was that the application filed by the wife  was not  maintainable because  an application  for execution of  the decree  had not,  till then, been filed by the  appellant   and,  therefore,  the  court  was  not  the executing court.  This was not accepted by this Court and it was laid  down that  the application  was maintainable under Section 47  CPC even  though execution  proceedings had  not been initiated.  The court  held that  even objection  under Section 47  could be  filed before  the  court  even  though application for execution had not been filed.      The Full  Bench of  the Madhya  Pradesh High  Court has already considered  this decision  and, in  our opinion, has rightly distinguished and explained it. 26.  Without entering  into any  factual controversy, either here or  in the  suit for specific performance filed against the appellant,  and  assuming,  for  the  moment,  that  the agreement pleaded  by the  respondent did take place between him and  the appellant’s  attorney, it  is still  to be seen whether the  rights under the decree passed in favour of the appellant for  the  eviction  of  the  respondent  from  the premises in  question were  intended to  be  given  up  and, therefore, the decree could not be executed socially in view of the  fresh  agreement  between  the  respondent  and  the appellant through  her attorney.  The  answer  is  that  the rights available  to the  appellant under  the  decree  were preserved and not given up. 27.  Tenant or  lessee of  a premises  is a  person in whose favour an  interest in  the specific  immovable property  is transferred, who,  therefore, comes  to occupy  the  demised property  exclusively  in  his  own  rights.  The  right  to exclusive possession  is the  basic feature  of the  tenancy created by lease. Licencee’s possession, on the contrary, is only permissive  and he  can be  thrown out  at any time. He does not  also get  the right to exclusive possession. Since the decree for eviction was passed against the respondent in his capacity as tenant of the premises in question, he could have, if at all, avoided that decree only by getting a fresh lease of  that premises  and not a licence which cannot have the  effect   of  avoiding  the  decree  or  superseding  or substituting  the  decree.  The  intention  of  the  parties clearly was not to extinguish the decree for eviction but to create only a licence allowing the respondent to stay in the premises for a while. 28.  In Konchada  Ramamurty Subudhi vs. Gopinath Naik & Ors. 1968 (2)  SCR 559  = AIR 1968 SC 919, this Court relied upon the theory  of intention  and held that the intention of the parties was the decisive test as to whether the rights under the decree  were given up of not. In that case, the landlord had filed  a suit  for eviction  of  the  tenant  which  was dismissed by  the trial  court, but  was compromised  at the appellate stage.  The decree  was passed  in  terms  of  the compromise which  provided that the tenant could continue in possession for  five years  but if  he did  not pay rent for three consecutive  months he  would be  evicted by executing the  decree.   When  execution  proceedings  were  initiated against the  tenant, an objection was raised by him that the compromise decree  created a fresh lease and, therefore, the decree was  inexecutable. This  plea was rejected and it was held that  the intention  of  the  parties,  which  was  the decisive test,  was not  to enter  into the  relationship of landlord and tenant. Reliance in this case was placed on the decision of  Subba Rao,  J. (as  he then  was) in Associated Hotels of  India Ltd.  vs. R.N. Kapur 1960 (1) SCR 368 = AIR

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1959 SC  1262, in  which one  of the  propositions laid down was:      "The real  test is the intention of      the parties;  whether they intended      to create a lease or a licence."      Reliance was  also placed  on the  observations of Lord Greene. M.R.  in Booker vs. Palmer 1942(2) All ER 674, which is quoted below:      "There is  one golden rule which is      of   very    general   application,      namely,  that   the  law  does  not      impute  intention   to  enter  into      legal   relationship    where   the      circumstances and  the  conduct  of      the parties  negative any intention      of the kind."      Ramamurty’s case  was followed  by this  Court in  Smt. Kalloo & Ors. vs. Dhakadevi & Ors. AIR 1982 SC 813, in which again the  intention of  the parties  was  held  to  be  the decisive test and it was laid down whether a fresh lease was intended to  be created  would depend  upon the intention of the parties. 29.  In the  instant case,  the respondent himself says that it was  only a  licence which  was created in his favour and that  he  had  to  pay  the  licence  fee.  This  itself  is indicative of the fact that a fresh lease was not created in his favour and consequently the rights under the decree were neither intended  to be  surrendered nor  were they actually surrendered. The  decree remained preserved and the creation of a licence had not the effect of destroying it. 30.  In view  of the  above,  the  appeal  is  allowed,  the judgment and  order passed by the executing court as also by the High Court are set aside and the objections filed by the respondent  under  Section  47  CPC  are  dismissed  with  a direction  to  the  executing  court  to  proceed  with  the execution of  the  decree  and  deliver  possession  to  the appellant. 31.  The appellant shall be entitled to her costs throughout from the respondent.