1996 (12) TMI 388 - SC - Indian Laws

Eviction decree against tenant cannot be avoided by creating fresh licence under Section 47 CPC

The SC held that a decree for eviction against a tenant cannot be avoided by creating a fresh licence in the respondent's favour. The court distinguished ... Application for execution - execution, discharge or satisfaction of decree u/s 47 - delivery of possession by the respondent to the appellant's attorney - conferment of the status of a licencee on the respondent - creation of a fresh licence - Interpretation of the provisions of Section 47 and Order XXI Rule 2 - Suit for eviction on various grounds - compromise decree passed. HELD THAT:- 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. 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. 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. The appellant shall be entitled to her costs throughout from the respondent. Issues Involved:1. Whether the compromise decree was satisfied by the delivery of possession to the appellant's attorney.2. Whether the decree was adjusted by the creation of a fresh licence.3. Applicability of Section 47 and Order XXI Rule 2 of the Code of Civil Procedure.Issue 1: Satisfaction of Compromise DecreeThe appellant, the landlady of 'Pink City Hotel,' filed for eviction against the respondent, a tenant, which ended in a compromise decree on 16.9.1991. The decree required the respondent to vacate the premises by 10th February 1992 and pay rent until then. The respondent claimed to have handed over possession to the appellant's attorney, Ramesh B. Sharma, on 31.10.1991, and continued to occupy the premises as a licensee. The trial court accepted this claim, finding the decree satisfied and inexecutable.Issue 2: Adjustment by Fresh LicenceThe respondent argued that he was allowed to remain as a licensee, paying a higher fee, which amounted to an adjustment of the decree. The appellant countered that the power of attorney was canceled, and no fresh licence could be validly created. The trial court found that the attorney could legally create a fresh licence, thus satisfying the decree.Issue 3: Applicability of Section 47 and Order XXI Rule 2 CPCThe appellant contended that any adjustment of the decree should have been certified under Order XXI Rule 2 CPC. The respondent argued that Section 47 CPC allowed the executing court to determine questions of execution, discharge, or satisfaction of the decree. The Supreme Court held that Section 47 and Order XXI Rule 2 must be harmonized. While Section 47 confers jurisdiction to decide execution-related questions, Order XXI Rule 2 mandates that any adjustment must be certified. The court emphasized that uncertified adjustments cannot be recognized by the executing court.Conclusion:The Supreme Court concluded that the respondent's plea of delivering possession and subsequent licence was an adjustment that required certification under Order XXI Rule 2. Since it was not certified, the executing court should not have recognized it. The appeal was allowed, setting aside the judgments of the trial court and High Court, and directing the executing court to proceed with the eviction decree. The appellant was awarded costs throughout.