JUDGMENT - R.K. Joshi, J.:---The Petitioner Also filed an ejectment application No. 587/E of 1968 against the respondent Indermal Dhanraj under section 41 of the Presidency Small Causes Court Act, seeking possession of Shop No. 5 on the ground floor of Kamla Bhuvan in Shanghai Estate, Ghatkopar, Bombay. The Petitioner was holding the shop as a tenant from the original owner and had in turn granted it on leave and licence basis to the respondent for a period of eleven months with effect from 15-9-1967. The said licence expired on 15-8-1968. Therefore, he took out the above-said proceedings for possession. 2. The parties arrived at a compromise and by the consent terms filed on 8-9-1970 it was agreed that the respondent should hand over vacant possession by 31-10-1970. Clause 2 of the consent terms further mentioned that the licence fees for the period 15-91968 upto 31-8-1970 were already cleared. It is Clause No. 3 which has given rise to a good deal of debate and it reads thus : It is however, agreed between the parties that if the respondent pays in Court or outside the Court to the Applicant regularly every month Rs. 275/- by way of compensation, first on the 10th of October, 1970 and thereafter continues to pay Rs. 275/- per month on the 15th day of each successing month regularly and without any two defaults, warrant of possession to be stayed permanently against the respondent. In default of any such two instalments warrant of possession to issue against the respondent without notice. By Clause 4. Regular Suit No. 426/873 of 1968 which was filed but the applicant against the respondent was withdrawn. 3. Default having occured, warrant for possession was taken out and the applicant was put in possession on 24-4-1974. On 26-4-1974 Pukhraj Indermal, son of the respondent, moved the Small Causes Court at Bombay by interlocutory Notice No. 1113 of 1974 for restoration of possession mainly on the ground that although default in payment of the licence fees for the months of January and February 1974 had occured, he had made an attempt to clear the dues in the first week of March 1974 as his father had been to his native place and had not returned but the applicant told him that he could not receive the amount from anyone except the respondent. Therefore, he kept quite; but to his surprise the warrant was executed on 24-4-1974. Next he alleged that he was a partner in the firm of Messrs. Pukhraj Indermal and as such partner he was in physical possession of these premises on the date on which the warrant was executed. He had every right to tender the licence fees but acceptance was wrongfully refused. The firm of Messrs. Pukhraj Indermal became a protected licensee and there was no right to dispossess by executing the warrant. In the alternative he pleaded that this should be treated as an application under Order 21, Rule 100 of the C.P.C. He was entitled to restoration of possession. In prayer Clause (e) of paragraph 11 he averred that possession of the suit premises be restored either to the respondent or to him or to the firm. 4. The applicant Shamji Asoo stoutly denied the various grounds put forth and further contended that the licence was not created in favour of the firm Messrs. Pukhran Indermal, nor the firm became protected licensee or that there was any attempt to tender the license fees as alleged, much less any refusal on his part to accept the amount. The applicant further alleged that Pukraj Indermal had no locus standi nor can he avail of the provisions of Order 21, Rule 100. When this affidavit was field Pukhraj Indermal by another affidavit changed the complexion of his status which he had adopted at the inception. He pleaded that he had wrongly said in the first Affidavit that he was the partner in the firm of Messrs Pukhraj Indermal, he was but as a matter of fact he was a partner with his father, the respondent, in the partnership business carried on in the name of Milan Graha Vastu Bhandar and in that capacity he claimed protection on reiterating the old grievances. To this the applicant came forth with a sure rejoinder that this was also a distortion of facts and he did not admit any of the contents of this affidavit. After these developments, for the first time on 13-6-1974 the judgment-debtor Indermal Dhanraj rushed to the Court with an affidavit for restoration of possession to him with a plea that on return from his native place he learnt from him that there was a tender, but the applicant had refused to accept the amount. After these developments, for the first time on 13-6-1974 the judgment-debtor Indermal Dhanraj rushed to the Court with an affidavit for restoration of possession to him with a plea that on return from his native place he learnt from him that there was a tender, but the applicant had refused to accept the amount. Although he had not committed any breach of the terms, if the Court feels that there are certain laches on his part or there is a delay in making payment of the licence fees for the months of January and February 1974, the same be condoned. He tries to support his son in stating that he was carrying on business in partnership with him in the name of Milan Grah Vastu Bhandar. These was an affidavit in reply filed by the applicant Shamji Asoo who denied the various grounds put forth. 5. With these pleadings and affidavits the matter proceeded further and the learned trial Judge on holding that there was a default in payment of compensation, felt that the relevant portion of the consent terms contained in paragraph 3, reproduced above, were not of executable nature at all. In the alternative he took the view that it was a fit case in which relief against forfeiture should be granted, and ordered restoration of possession. It is against this order the applicant has come in revision. 6. Mr. Dhanukar for the applicant raised three principal contentions before me. In the first instance he submitted that Pukhraj Indermal, the son had no locus standi to make an application on behalf of the judgement debtor. The application under Order 21, Rule 100 of the C.P.C. as laid by him in the alternative, would not be tenable. On pointing out the change in the stand taken by the father and son about their status quo partners of one firm or the other, he submitted that the relief against forfeiture is applicable to cases of leases, There being no relationship created or set up of a landlord and tenant ad any stage this doctrine cannot be successfully availed. Thirdly, he argued that the consent order is of executable nature and the default clause is not at all of a penal nature. Reading the terms as a whole, the defualt clause would be nothing short of a concession. Thirdly, he argued that the consent order is of executable nature and the default clause is not at all of a penal nature. Reading the terms as a whole, the defualt clause would be nothing short of a concession. If the judgment-debtors does not avail of the concession, he has to suffer the consequences and the Court cannot deprive the applicant of the rights vested in or acquired by him. 7. On the initial point of the locus standi it is worthy to note that the proceedings were initiated under section 41 of the Presidency Small Cause Courts Act which find place in chapter VII. It is summary proceeding and not a suit. The orders passed in such proceedings are not decrees. This is clear from the language of section 41 as well as from a couple of authorities of this Court and the Supreme Court. 8. The earliest authority is to be found in the case of (Bai Meherbai Sorabji Master v. Pherozshaw Sorabzji Gazdar)1, 29 Bom.L.R. 1221. It was an action under section 41 of the Presidency Small Cause Courts Act, 1882. The Division Bench pointed out tat the remedy under chapter VII of the Presidency Small Cause Courts Act, 1882 for ejectment is a summary proceeding and not a suit and the order made therein amount to a decree. The same view has been reiterated in the case of (Govindram Salamatrai Bachani v. Dharampal Amarnath Puri)2 , 53 Bom.L.R. 387. Speaking for the Court the learned Chief Justice Chagla pointed out : It is necessary to remember that under the Presidency Small Causes Court Act under Chapter VII the Small Causes Court had been given jurisdiction with regard to property of a certain value to pass orders of eviction in favour of owners of property who wanted to eject either their tenants or their licensees." "Applications under Chapter VII of that Act were not suits and the orders passed by the Small Causes Court were not decrees and the parties affected by the order under that Chapter had the right expressly reserved to them to litigate the question of their title in the High Court. A similar view has been taken by the Supreme Court in the cas of (Nalinakhya Bysack v. Shyam Sundar Haldar)3, A.I.R. 1953 S.C. 148. It would be clear from these authorities that the orders are not decrees. 9. A similar view has been taken by the Supreme Court in the cas of (Nalinakhya Bysack v. Shyam Sundar Haldar)3, A.I.R. 1953 S.C. 148. It would be clear from these authorities that the orders are not decrees. 9. I have made a somewhat detailed reference to this aspect at the inception just to repel the plea taken by Pukhraj Indermal in the application that the application be treated under Order 21 Rule 100 of the C.P.C. This necessitates a reference to the two Rules 100 and 101 at this stage. Both these rules are required to be read together as they are components of each other. Rule 100 speaks of dispossession by decree-holder or purchaser. When there is such dispossession, any person other than the judgment-debtor who is wrongfully dispossessed, can complain of such dispossession. Sub-rule (2) covers the procedure in directing the Court to fix a date for investigating the matter and for summoning the party against whom the application is made to appear and answer the same. Rule 101 which is of utmost importance further lays down that where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other that the judgement debtor, it shall direct that the applicant be put into possession of the property. These two rules refers to the rights of a person who has been dispossessed in execution of a decree and who is some person other than the Judgment-debtor. Both the requisites in the instant case are not fulfilled. Firstly, this is not a decree as noted just now and secondly, Pukhraj Indermal on his own showing cannot be held to be a person other than the judgment debtor. He has at one stage claimed to be a partner of Messrs Pukhraj Indermal, but dropped the idea of pursuing the same and preferred to style himself as a partner of Milan Graha Vastu Bhandar. Apart from the chane in the stand taken, it is obvious that he is a member of the joint family along with Indermal Dhanraj and cannot be said to be i possession on his own account. If the firm, one or the other, was the tenant and if it was dispossessed, the son who claims to be a partner, would be equally a judgment-debtor along with the other partners including the father. If the firm, one or the other, was the tenant and if it was dispossessed, the son who claims to be a partner, would be equally a judgment-debtor along with the other partners including the father. Therefore looked at from any point of view, he cannot successfully avail of the benefits conferred by Rule 100 or 101 of Order 21 of the C.P.C. 10. When this lacuna was realised, Mr. Vashi for the respondent tried to impress this Court that to err on safer side, the father had at a later stage intervened in these proceedings and he put in his affidavit. That affidavit may be treated as separate proceeding taken out by the judgment-debtor in his own right and relief could be granted because no prejudice was caused to the applicant as he had filed a counter affidavit or an affidavit in reply. In simpler words, his submission was that the subsequent affidavit accompanied by nothing more would be by itself a proceeding. 11. The argument as presented does not appeal to me. So far as the procedural part is concerned, I may point out that in (Balmukchand Co. v. Mangaldas Tribhovandas Mehta)4, 55 Bom.L.R. 50 it has been ruled that the proceedings under Chapter VII should be numbered as an application. They have an independent existence and cannot proceed on the strength of a bare affidavit filed in the course of the hearing of some other proceeding already taken out by a person who is not a party to the order. I this context I may refer to the rules framed under the Act. Rule 2(a) of Bom bay Presidency Small Cause Courts Rules, 1968 says that all suits or proceedings shall be instituted by presentation of a plaint or an application along with a presentation from in duplicate duly filled in to an officer appointed by the Registrar in that behalf. Sub-rule (b) speaks of the documents and copies required to be presented wit the application and the list of documents referred to in Rule 14, Order VII, Civil Procedure Code. 12. Rule 5 lays down that an application shall bear the prescribed Court fee and process fee for issue of summons to the respondent. Of course, if the process fee is not utilised, it is to be refunded but it was little bearing on the point at issue. 12. Rule 5 lays down that an application shall bear the prescribed Court fee and process fee for issue of summons to the respondent. Of course, if the process fee is not utilised, it is to be refunded but it was little bearing on the point at issue. It is needless to refer to the subsequent rules which are more or less of the same or similar tenor. These rules make it abundantly clear that a person affected by an order under section 41, if he dares to challenge the same, has to approach the Court with an application which has to comply with certain formalities, If they are not complied with, the Registrar has a right to reject the same. These rules cannot be read as empty formalities and the affidavit which seems to have been filed to support the cause of the son, cannot be treated as an application. Therefore, that affidavit filed by the father would be of little moment. 13. This discussion has a considerable bearing on the approach of the lower Court and the order made by it. The proceedings were initiated by the son. There was a denial by the applicant in the form on an affidavit and after a change in the front by the son who claimed to be a partners in another firm, the father has come forward with the affidavit. On this background the final order made by the learned trial judge sounds to be somewhat queer. In the concluding para 5 of his orders he observes : The applicant should therefore be restored possession as partner of the firm which the original respondent is added a partner." Then follows the final order : Notice absolute. The respondent (applicant in original E.A.) to deliver possession of the suit premises to the applicant on or before 1-8-1974. No order as to costs. Interim injunction to continue till possession is given. This order directs the present applicant to hand over possession to Pukhraj Indermal and that too in the capacity of a partner of the firm. The learned Judge, with due respect to him, does not make clear as to what firm he is referring to. On his own showing Pukhraj Indermal is not a partner of Messrs Pukhraj Indermal. The initial application is not by a partner of the other firm Milan Graha Vastu Bhandar. The learned Judge, with due respect to him, does not make clear as to what firm he is referring to. On his own showing Pukhraj Indermal is not a partner of Messrs Pukhraj Indermal. The initial application is not by a partner of the other firm Milan Graha Vastu Bhandar. Apart from these inconsistencies, possession is ordered to be handed over to Pukhraj Indermal. But as I pointed out above, he cannot be a proper person having any locus standi to make such an application. At one stage he claimed possession in his own independent right, but that is overrules by me on two important considerations. To repeat, this is not a decree and the provisions of Rules 100 and 101 are not attracted. Secondly, he is not a person having an independent right other than the judgement debtor even it one were to treat the order as a decree, which could not be under the law. Therefore, ex facie, the order suffers from these grave irregularities, and it being illegal on the face of the record, will have to be set aside. 14. However, it was urged by Mr. Vashi that the Court should not be too techical in all such matters and when relief is being sought on equitable considerations, one should be very liberal. It the application had succeeded in showing that some prejudice was caused to him or he was not aware of the fathers case then something could have been said in his favour. Being apprised of the fathers stand (i.e of Indernal Dhanraj) and having met the case squarely by the rejoinder, it would be a travesty of justice to deny the relief if he is otherwise entitled to it. The argument---here again I may point out---may posses the merit of plausibility, but failed to carry conviction. Having due regard to the nature of the proceedings, the relief which could be granted by the Court, the manner of execution thereof and the steps required to be taken to get rid of these orders, it cannot be said that these proceedings could be treated so lightly and relief could be granted without compliance of the rules. If the applicant Indermal Dhanraj had taken out suitable preceesings, the present applicant would have met it probably on some additional grounds. If the applicant Indermal Dhanraj had taken out suitable preceesings, the present applicant would have met it probably on some additional grounds. What he was called upon at the belated stage-was to meet the allegations put forth as a supplementary affidavit to the cause of the son. 15. Even if one were to accept the initial argument of Mr. Vashi that the equities in his favour need not be defeated because of the non-compliance of these rules, still the point will have to be considered whether he is entitled to the said reliefs. On this point both the learned Counsel cite good many authorities. Before I take a short resume of these authorities, I may indicate the principles or grounds covered by the said authorities and how they are sought to be made applicable. The first proposition was whether the consent terms which are evidenced by the order could be varied by the Court or whether they could be varied by the consent of the parties only. The second proposition touched was whether this rule or doctrine of relief against forteiture is applicable to the cases other than those of a landlord and tenant and in particular to the cases of licensor and licenses. If this doctrine of relief of forfeiture could be extended to other categories of cases, then the Court will have to find out from the consent terms whether the operative clauses are penal in their nature or amount to a concession. If they are penal, certainly on equitable considerations, relief could be granted. But if on the other hand, they operate or were intended to operate as a concession , then the party at default who has not availed of the concession, cannot claim any relief at a belated stage and the courts have no power to relive him. The reasoning is quite simple. When a concession is granted, it is for the party who seeks the concession to avail of it ant the question of penalty does not creep in. These are the broad outlines of the ration laid down in the various authorities which I now proceed to discuss. 16. The first authority is to be found in the Full Bench decision of this Court in (Krishnabai v. Hari)5, 8 Bom.L.R. 813. These are the broad outlines of the ration laid down in the various authorities which I now proceed to discuss. 16. The first authority is to be found in the Full Bench decision of this Court in (Krishnabai v. Hari)5, 8 Bom.L.R. 813. In that case the parties had compromised the suit and consent terms were filed in terms or which the decree was ultimately drawn. Under the consent terms the plaintiff Krishnabai had granted mirasi rights to the defendant Hari on taking Rs. 150/- in cash on the date of the decree. The terms further stipulated that defendant was to pay to the plaintiff 15 annas 1 1/2 pies every year as rent and was to enjoy the property in perpetuity. The decree further provided that if the plaintiff were to fail to receive the amount of rent every year, Defendants mirasi rights would stand extinguished. The decree concluded that if the defendant were to fail to pay to the plaintiff every year the aforesaid amount on the due date he should wait for two months and after the expiry of the year should take further proceedings. On interpreting this decree as one in which the relationship of landlord and tenant was created, their Lordships quoted that When a Plaintiff is seeking to enforce by original suit a right to forfeiture contained in a consent decree, in the terms of a compromise, whereby the status of landlord and tenant is established between the plaintiff and defendant, the Court in the exercise of its equitable jurisdiction is not precluded from granting such relief against forfeiture as it might have granted, had the status arisen from contract or custom, From these observation it seems to me that Their Lordship were reinforcing the statutory provision contained in section 114 of the Transfer of Property Act which speak of the powers to the Court to relieve a party against forfeiture. Another point worthy of emphasis is that on strict interpretation of this decree it was concluded that it created the relationship of landlord and tenant ; but on the factual aspect Their Lordships were of the view a small defualt here and there would not deprive the party of relief against forfeiture simply because there were laches on the part of the judgment-debtor in not clearing the dues in good times. 17. The next authority which was strongly relied upon by Mr. 17. The next authority which was strongly relied upon by Mr. Dhanuka finds place in (Lachiram Daoduram Marwadi v. Jana Yasu Mang)5, 16 Bom.L.R. 668. In this case it was a money decree obtained by consent. The amount was made payable in certain fixed instalments and on failure to pay any two instalments the plaintiff was at liberty to recover possession of certain lands. Default having assist plaintiff sought to recover possession. The Lower Court had occured declined was the plaintiff in enforcing the penalty clause, but the plaintiff appealed to the High Court and two important observations were made. The first was that consent term can only be varied by consent and secondly, the ratio in Krishnabais case referred to above was inapplicable where the relation of landlord and tenant is not created by the decree. Both these propositions seem to have been departed from in the subsequent rulings of our High Court. However. Mr. Dhanuka urged that (16 Bom.L.R.) having been referred to in the subsequent cases this proposition that a consent decree can be varied only by consent, still holds good. I am unable to share his views, as I will shortly point out that the subsequent authorities do not conform to it. 18. The next case of (Narayan Bapuji Kashirsagar v. Rajimal Motiram Marwadi)7, 27 Bom.L.R. 1453 needs only a passing reference because it has been overruled in (50 Bom.L.R. 688.) However, the observations of Macleod, C.J. need a reproduction ad verbatim, because it would be shortly seen that there were two different currents in the sets of these authorities which have been ultimately summarised and dealt with in (53 Bom.L.R.) The learned Chief Justice said : I have always been opposed to the suggestion that one Court can bind all courts in future by deciding that no consent decree can possibly be departed from even when justice and equity demand it. It is the privilege of this Court to administer equity , and, in following the principled of equity, to relieve against forfeiture, if it considers the nature of the case requires it. Lachirams case was not followed. No reference is made to Krishnabais case ( 8 Bom. L.R. 813). 19. It is the privilege of this Court to administer equity , and, in following the principled of equity, to relieve against forfeiture, if it considers the nature of the case requires it. Lachirams case was not followed. No reference is made to Krishnabais case ( 8 Bom. L.R. 813). 19. In the next Full Bench decision in (Waman Viswanath Bapat v. Yeshwant Tukaram)8, 50 Bom.L.R. 688 which was a case of a money decree lays down that Where a decree, passed either by consent or in invictim, permits payments of the decretal amount in instalments and provides that on failure in payment of one or more instalments the wholeamount of the decree would become payable at once. Courts are bound, in the event of such failure, to execute the decree in accordance with its terms, and are not at liberty to relieve against the consequences of failure on equitable considerations". In the body of the judgment delivered by the learned acting Chief Justice Chagla we find a summary of the different views taken by the Courts in these authorities referred to in the foregoing paragraphs. It has been pointed out that the two protagonists of these two views were Sir John Beaumont and Sir Norman Macleod two learned Chief Justices of this Court. Sir John Beaumont took the view that what the decree-holder had done was to have made a concession to the judgment-debtor, the concession being that if he paid the smaller amount by a particular date, full satisfaction would be entered up, but in defualt of payment on the due date the amount actually due under the decree would become payable, and in such a case the Court had no power to relieve a party who had committed the default. What was denied to him was a the concession and there was no question of penalising him in any manner. The other view taken by Sir Norman Macleod reproduced in the foregoing paragraphs was opposed to the suggestion that one Court can bind all courts in future by deciding that no consent decree can possibly be departed from even when justice and equity demand it. The other view taken by Sir Norman Macleod reproduced in the foregoing paragraphs was opposed to the suggestion that one Court can bind all courts in future by deciding that no consent decree can possibly be departed from even when justice and equity demand it. On pointing out that the fundamental question as to whether there was any penalty provided in the consent decree was overlooked, His Lordship chagla C.J proceeded to add that it not disputed and it cannot be disputed that a Court of equity can relieve against penalties or against forfeiture. But the question that has got to be determined is whether a certain obligations undertaken by a judgment-debtor is in the nature of a penalty or whether it is the result of a concession conferred upon him by the decree-holder. Reference was made to the third view declared as the more extreme view finding favour with the Court in (Shekeiuli Timapa Heoda v. Mahablya)9, I.L.R. 10 Bom. 435. In the said case the Court went to the length of suggesting that the doctrine of penalties was not applicable to stuplations contained in decree, ant that the plaintiff was entitled to recover the amount. The last case on the subject which summarizes all this case law is to be found in (Gajanan Govind Pathak v. Pandurana Keshav Puntambekar)10, 53 Bom.L.R. 100. The principle laid down was that in case where the relationship of landlord and tenant is created or continued between the parties by a compromise decree, the judgment-debtor who is a tenant would be entitled to relief against forfeiture resulting from his, failure to pay the rent at the stipulated lime. Whenever courts are dealing with the question of granting relief to judgment-debtor, they must decide in which class of cases the decree in question falls, of the decree falls in the class of cases which was dealt with in Krishnabai v. Hari (landlord and tenant), the principle therein laid down must be applied. If , on the other hand, the decree falls in the other class of cases which was the subject matter of the decision in Waman Vishwanath v. Yeshwant Tukaram (money decree) it is the principle laid down in the case that must be applied. If , on the other hand, the decree falls in the other class of cases which was the subject matter of the decision in Waman Vishwanath v. Yeshwant Tukaram (money decree) it is the principle laid down in the case that must be applied. In summarizing the case law in this broader aspect Gajendragadkar, J. (as he then was) speaking for the Court, has made certain pertinent observation which need a reference at this stage, as they have a bearing on the point at issue. The first observation made was : On principle there can be no doubt that as between the landlord and the tenant, the tenant would be entitled to relief against forfeiture resulting from the non-payment of rent. The principles underlying section 114 of the Transfer of Property Act have been applied on equitable grounds even apart from the provisions of the said section.........The same view has been taken by all the Indian High Courts in dealing with the claims for possession made by landlords against the tenants on the grounds that the tenants have committed default in the payment of rent. It is this equitable principle which has received statutory recognition in the provisions of section 114 of the Transfer of Property Act. In dealing with the question raised before the Full Bench Krishnabais case Jenkins, C.J. observed that if that tenant was entitled to relief against forfeiture under this equitable principle, it is difficult to see why he should not get the same relief merely because the agreement between the parties has merged in a consent decree. 20. While commenting upon Wamans case, Gajendragadkar, J. proceeded to observe : Shortly stated the view accepted by the Full Bench was that if it appears that the decree in question directs a certain sum of money to be paid by a particular date and adds a condition that if the said money is not paid on the said date a larger sum shall be paid, that condition is in the nature of a penalty against which a Court of equity can grant relief and award to the party seeking payment only such damages as he may have suffered by the non-performance of the term as to the payment of the money. On the other hand, if the decree makes a particular sum payable on a certain date it follows the said direction by a condition allowing to the debtor a concession, as for example the liberty to pay a lesser sum or to pay the said sum by instalments, then the party who seeks to take advantage of that concession must carry out strictly the conditioned on which the concession was granted. In the concluding portion of the judgment it has been observed as follows : It would thus be clear that the Full Bench decisions do not cover the same or similar ground and were in fact dealing with entirely different situation . The earlier Full Bench was dealing with a compromise decree creating the relationship of landlord and tenant and it was held that the equitable jurisdiction to give relief to the tenant against the landlords claim for forfeiture and re-entry can be exercised by Court even though the said relationship of landlord and tenant is the result of the term of a compromise decree. In a sense, therefore, this decision recognise an exception to the rule that consent decrees can be varised only by consent, In the latter Full Bench case the question of granting relief to the judgment-debtor to pay off certain amounts on specified date or within a specified period was considered, and in dealing with this question the Full Bench held that there is jurisdiction to grant such relief if on a construction of the decree in question it appears that the clause sought to be enforced amounts to a penalty. It is in the light of this gift, the question raised before me will have to be answered. 21. From the long drawn discussion at the Bar and observations made in the authorities referred to in the foregoing paragraphs, it would be clear that ultimately the point dwindles down to a small question whether on the terms of the decree or order, the default clause amount to a penalty or a concession. If it is a concession there can be no relief it is not availed of. But if no the other hand, if it is a penalty, then certainly the Courts have powers to grant relief. More or less to this effect are the observations in the case of (Gandhi Gopaldas Gordhandas v. Bai Lalitabai Marchabai)11, 1972 R.C.J. 385. If it is a concession there can be no relief it is not availed of. But if no the other hand, if it is a penalty, then certainly the Courts have powers to grant relief. More or less to this effect are the observations in the case of (Gandhi Gopaldas Gordhandas v. Bai Lalitabai Marchabai)11, 1972 R.C.J. 385. This judgement takes a survey of all the authorities discussed in the foregoing paragraphs and adds very little as such, which could be considered as a new approach or aspect, to these points and, which, I may add, so far as this High Court is concerned, appear to med to be well-settled. 22. Mr. Vashi for the respondent, on taking me through the consent terms, and the affidavits, urged at great length that defaults had occurred in that past; that they were condoned, and therefore, it should be inferred that time was not the essence of the understanding between the parties or the order. Next, he wants me to construe Clause 3 as a permanent licence created in law favour. Had the clause mentioned a specified date and/or a shorted period then it could be a concession. The non-definition of period or a longer period according to him creates an assurance and he should not be penalised. On the other hand, Mr. Dhanuka submitted that the very first clause is quiet eloquent. Possession was ordered to be delivered by -31st October, 1970. Clause No. 2 spoke of the clearance of the arrears which ranged over a period, of nearly two years. In putting Clause No .3 the intention was quite Although the wording is not very happy what the parties meant to all intents and purposes was that if the respondent proves to be punctual and not a defaulter as in the past, he would be at liberty to continue on the premises as a licensee and the warrant for possession will not be taken out or executed. One need not make a fetish of the expression warrant of possession to be stayed permanently. It does not indicate that the applicant had given up his right to recover possession and to suffer irregular payments or partial payments or non-payments for a period of more than two months. 23. One need not make a fetish of the expression warrant of possession to be stayed permanently. It does not indicate that the applicant had given up his right to recover possession and to suffer irregular payments or partial payments or non-payments for a period of more than two months. 23. These terms read in the context and on the background of the processing indicate that it was the clearcut intention of the parties to compel the opponent to play the licence fees regularly. Any irregularity on his part was to give right to the applicant to recover possession, subject of course to the defaults being two in number, or the opponent having been given a Lapse for non-payment of one months licence fees. The applicant never intended to tolerate or to stand the contumacious defualt and a question would arise why he should suffer all these odds. Because there was a defualt would arise why he should suffer all these odds. Because there was a defualt in the past and because the experience was not so happy, he had to rush to the Court for an order under section 41. If he was liberal in the past or connived at the defaults, it does to necessarily mean that he should extend the same charity for all times to come. To check such defaults and such a tendency on the part of the opponent, Clause 3 was inserted. Regular payment, apart from the terms of leave and licensee is a normal feature. If the licensor makes some concessions in favour of the licensee or is a little generous enough to condone one defualt, I am unable to construe it as a penalty. Clause No. 3 to my mind, is nothing but a concession; otherwise, there was no point in adding the same. The 1st clause had covered the entire field of controversy and the applicant could have taken possession after 31st October, 1970, whether there was a defualt or no defualt, Then again one cannot overlook Clause 4 or the last clause. The last clause refers to the withdrawal of Suit No. 426/873 of 1968. The withdrawal of this suit is another indication, in my opinion, to hold that Clause No. 3 was to operate as a concession. The last clause refers to the withdrawal of Suit No. 426/873 of 1968. The withdrawal of this suit is another indication, in my opinion, to hold that Clause No. 3 was to operate as a concession. Various other considerations might have weighed with the parties and having regard to them and reading the clauses as they stand, without making a fetish of the wording warrant of possession to be stayed permanently against the respondent. I am convinced that this is a concession. Therefore, when there is a defualt and when the concession is not availed of, respondent cannot claim any relief against forteiture. 24. In this view of the matter, I think it is needless to cover the other points urged by Mr. Dhanuka or by Mr. Vashi which are not material, nor do they go to the root of the matter. 25. In the result, the rule is made absolute. No order as to costs. ------