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1996 (12) TMI 388 - SC - Indian LawsApplication 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.
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