JUDGMENT-This is a chamber summons taken out by the defendant (a) for an order that the undertaking given by him under the consent decree dated March 24, 1971 passed in this suit has become infructuous, inoperative, null and void, and that he be relieved of that undertaking; (b) for a permanent injuction restraining the plaintiff from taking any proceedings in pursuance of that consent decree, and for from taking possession of the suit premises except by due process of law; and (c) in the alternative, for an order that the undertaking given by the defendant under the said consent decree be modified and the time for the defendant to comply with the same and for the plaintiff not to execute the said consent decree be extended for such period as the Court thinks fit. The plaintiff's case is that he was the tenant of certain premises on the ground floor of a building named Dhanraj Mahal Apollo Bunder in Bombay and had, by an agreement of leave and licence dated November 10, 1966, permitted the defendant to use a portion of those premises for a period of three years commencing from the date of that agreement: that by his attorney's notice dated November 7, 1968 which was received by the defendant on November 20, 1968 the plaintiff, however, terminated the said agreement of leave and licence for breach of its terms and conditions by the defendant and called upon the defendant to remove himself from the premises on the expiry of fifteen days from the date of receipt of that notice; and that the defendant having failed to remove himself from the said premises on the determination of that licence, as from December 6, 1968 the defendant became a trespasser thereon. The plaintiff therefore filed this suit for possession of the said premises, for permanent injunction restraining the defendant from using or entering the same, as well as for an order for payment of compensation in respect of the said premises. The plaintiff therefore filed this suit for possession of the said premises, for permanent injunction restraining the defendant from using or entering the same, as well as for an order for payment of compensation in respect of the said premises. At the hearing of the said suit, a consent decree was passed by Nain J. on the March 24, 1971 whereby it was declared that the defendant was, prior to December 6, 1968, a licensee of the plaintiff in respect of the suit premises, but that since the said date he had no right, title and interest therein, and it was ordered that the defendant was to hand over possession of the suit premises in his occupation. It was, however, further provided by the said consent decree that in the event of defendant paying to the plaintiff the sum of Rs. 800 per month together with certain electricity charges in respect of the said premises, the plaintiff was not to execute the said decree for ejectment. By the said consent decree it was further ordered that in the event of the defendant committing default in payment of any two of the said monthly payments or of the arrears of compensation in the manner stated in the said consent decree, the said decree was to become executable forthwith. In the said consent decree it was further recorded that the defendant thereby gave an undertaking to the Court that he would hand over vacant and peaceful possession of the suit premises on March 31, 1974, or when the said consent decree became otherwise executable in accordance with its terms. 2. In the meantime, by Maharashtra Act XVII of 1973, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was amended, inter alia, by the addition of a new sub-section (4A) in the definition section 5 of the said Act and the enactment of a new section 15A. The material portion of subsection (4A) of section 5 defines the term "licensee" as meaning a person who was in occupation of the premises "under a subsisting agreement for licence given for a licence fee or charge". The new section 15 A gave to a licensee of premises who was in occupation as such on February 1, 1973 the same protection and the same rights as a tenant of those premises would have against his landlord. 3. The new section 15 A gave to a licensee of premises who was in occupation as such on February 1, 1973 the same protection and the same rights as a tenant of those premises would have against his landlord. 3. In view of the said amendment in the Bombay Rent Act, the defendant took out the present chamber summons on March 25, 1974, i. e., just six days before he would be required to hand over possession of the suit premises to the plaintiff pursuant to the undertaking given by him in the said consent decree dated March 24, 1971, for the reliefs already set out above. 4. At the very outset of his arguments on behalf of the defendant, Mr. J.C. Bhatt clarified two points, and they were, (1) that this chamber summons was a proceeding in execution under section 47 of the Code of Civil Procedure; and (2) that he did not contend that the said consent decree dated March 24, 1971 was null and void by reason of the amendments effected in the Bombay Rent Act, but only contended that the said consent decree had become inexecutable by reason of those amendments and that he should, therefore, be relieved of the undertaking contained therein and the plaintiff should be restrained from executing that consent decree. 5. The first question that I must consider is, whether this chamber summons is maintainable as a proceeding under section 47 of the Code of Civil Procedure. [His Lordship, after dealing with the said question, held:] I, therefore, hold that this Chamber summons, as a proceeding under section 47 of the Code of Civil Procedure, is not maintainable. 6. In that view of the matter, no other question survives for my consideration in regard to this chamber summons. In the event, however, of my being wrong in the view which I have taken on the question of the maintainability of this chamber summons as a proceeding under section 47, I would prefer to state briefly my views on the merits of the chamber summons also. In the event, however, of my being wrong in the view which I have taken on the question of the maintainability of this chamber summons as a proceeding under section 47, I would prefer to state briefly my views on the merits of the chamber summons also. Prayers (a) and (c) of the chamber summons can be conveniently dealt with together as, if the defendant is not to be relieved of the undertaking given by him in the said consent decree as prayed for by him in prayer (a) of the chamber summons, there is no reason why the time for complying with that undertaking should be extended as prayed for in prayer (c) thereof. In view of the fact that Mr. Bhatt has made it clear that he does not contend, that the said consent decree has become null and void by reason of the subsequent amendments effected in the Bombay Rent Act, the question of relieving the defendant from the undertaking or of extending the time for complying with that undertaking resolves itself merely into a question of the Court exercising its discretionary or inherent powers in favour of the defendant for the purpose of giving him relief under the said prayers (a) and (c). I have not the slightest doubt that there is no reason for exercising those powers in favour of the defendant in the present case. The defendant having voluntarily given the undertaking to vacate on March 31, 1974, and having taken the benefit of that undertaking by remaining in possession notwithstanding the consent decree for ejectment passed against him, there is no equity which should induce the Court to relieve him of' that undertaking or to extend the time for complying with the undertaking, even if the application made by way of this chamber summons were a perfectly bonafide application. In my opinion, however, this application is not a bona fide application, for the simple reason that, though according to the defendant, the amendments in question gave him protection under the Rent Act as from February 1, 1973, he has not chosen to make this application till only six days remained for him to comply with the undertaking contained in the consent decree. For all these reasons, even if this chamber summons were maintainable, I would decline to grant the defendant any relief under prayer (a) or (c) of this chamber summons. 7. For all these reasons, even if this chamber summons were maintainable, I would decline to grant the defendant any relief under prayer (a) or (c) of this chamber summons. 7. That leaves for my consideration prayer (b) of the chamber summons which is the main prayer that I am called upon to consider on the merits of this chamber summons. The permanent injunction that is sought therein is claimed on the basis of the right and the protection which, according to the defendant, the amendments effected in the Bombay Rent Act have conferred upon him· Subsequent to the passing of the consent decree, making that consent decree inexecutable. Several authorities were cited and discussed in the course of the argument of this chamber summons before me, but I propose to refer briefly to only a few of them. In the case of Gurupadappa Shivlingappa v. Akbar1 a consent decree had been passed on June 11, 1947 in an ejectment, suit under which the tenant admitted that he was a monthly tenant and was ordered to deliver possession of the demised premises to the plaintiff on January 31, 1948 and to pay rent every month till the expiry of that period. On February 13, 1948 the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 came into force. On February 16, 1948, the plaintiff applied to execute the decree by recovering possession of the property, when the defendant pleaded the protection afforded by section 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. It was held by this Court (Shah J., at page 145) that the contractual tenancy of the defendant, which had been terminated before the suit was filed, was revived by reason of the consent decree passed on June 11, 1947, and the defendant thus became a contractual tenant of the plaintiff, and was entitled to claim the benefit of section 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. It was further observed by the learned Judge {at pages 145-146} that a statutory provision may, either expressly or by implication, prevent execution of a decree according to its terms and the executing Court would have no jurisdiction to execute such a decree according to its directions; and that the consent decree in the said case was one which created a "contractual relation" between the plaintiff and the defendant, and there was nothing in the terms of section 12 of Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 which prohibited a tenant whose rights arose under a consent decree from obtaining the benefit of that Act. The decision of this Court in Gurupadappa's case has been interpreted by the Supreme Court in the case of Bai Chanchal v. S. Jalaluddin as laying down that having regard to the specific and clear language used in the consent decree "a new tenancy had been created from the date of the consent decree", The Supreme Court went on to observe that in the case before it the terms of the consent decree were in no way comparable with the terms used in the consent decree in Gurupadappa's case and contained no indication of any intention to create a tenancy and the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 could, therefore, never apply to the case before it. It may be pointed out that the same learned Judge who decided Gurupadappa's case was, on his elevation to the Supreme Court, a member of the Bench in Bai Chanchal's case which construed the judgment in Gurupadappa's case. In Bai Chanchal's case, the facts were that, in the agreement on the basis of which a consent decree was passed on July 8, 1946, it was agreed that the defendant· appellants would continue in the possession of the suit property for a period of five years and would hand over possession after the expiry of that period, and they undertook to pay mesne profits every month at various rates on the lands in their respective possession. Before that period of five years expired, the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 had come into force, and it was sought to be contended on behalf of defendant appellants that a new tenancy was created by that consent decree which was to continue for five years, and that the defendant-appellants, were therefore, entitled to the benefit of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, which had come into force before that new tenancy expired. In regard to that contention, it was held by the Supreme Court (para 6) that the consent decree did not state that a new tenancy was being created; that the Court was unable to find any terms in the consent decree which would lead to such an interpretation; that all that the consent decree envisaged was that, though the judgment-debtors were liable to immediate eviction the decree-holders agreed to let them continue in possession for a period of five years; and that, since that "concession" was being granted as a special case, the decree-holders had insisted that the judgment-debtors should pay mesne profits at a much higher rate. Though the actual question before the Supreme Court was whether the said consent decree itself created a new tenancy, the following observations made by the Supreme Court cover a case of licence also and are, therefore, relevant for the purpose of chamber summons before me (p. 1084): "………These terms can, in no way, be interpreted as creating a new tenancy constituting the decree-holders as landlords and the judgment-debtors as their tenants. The terms of the consent-decree neither constituted a tenancy nor a licence. All that the decree-holders did was to allow the judgment-debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise." Two propositions emerge from a consideration of the decision of this Court in Gurupadappa's case and of the decision of the Supreme Court in Bai Chanchal's case. All that the decree-holders did was to allow the judgment-debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise." Two propositions emerge from a consideration of the decision of this Court in Gurupadappa's case and of the decision of the Supreme Court in Bai Chanchal's case. They are: (1) that a consent decree may create a tenancy or a licence and it is not as if a new tenancy or a fresh licence cannot be granted by the terms of a consent decree; and (2) that the question as to whether a consent decree created 3 new tenancy or granted a fresh licence is not a matter of authority, but is a question which must be decided on the interpretation of the terms of the particular consent decree. Mr. M. H. Shah, on behalf of the plaintiff in the present case sought to argue that, having regard to the fact that the plaintiff's whole endeavour was to eject the defendant from the said premises, he could never have intended to create a grant even by way of licence in favour of the defendant by the consent decree. In my opinion, that argument has no validity for such an argument could well be advanced in every ejectment suit in which a consent decree is passed. What the Court has to see is Dot what could have been intended, but what is the expressed intention of the parties or, in other words, the intention of the parties as expressed in the particular consent decree. 8. The decision of this Court in Gurupadappa's case as well as of the Supreme Court in Bai Chanchal's case have been considered by my brother Gandhi in his unreported judgment in Jethalal S. Dave v. Bachhubhai S. Dave v. Gurupadappa's case has been distinguished by my brother Gandhi on the grounds that in the case before him an undertaking had been given to the Court and that had to be given some meaning. He refused to accept the contention advanced before him that an undertaking contained in a consent decree stood on a different footing from an undertaking given to the Court otherwise. He refused to accept the contention advanced before him that an undertaking contained in a consent decree stood on a different footing from an undertaking given to the Court otherwise. Bai Chanchal's case was distinguished by my brother Gandhi on the ground that it was on the facts of that case that the Supreme Court had held that the terms could in no way be interpreted as creating a new tenancy, since all that the decree-holders did in that case was to allow the judgment-debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise. There were three proceedings before my brother Gandhi, one being a Chamber Summons similar to the present Chamber Summons, the second a notice of motion for contempt of Court, and the third being a notice under Order XXI, rule 22 of the Code of Civil Procedure. By clause I of the consent terms in the said case it was ordered that the defendants were to hand over possession of the suit premises to plaintiff No. 1 or his son. By clause 4 thereof, the plaintiffs however agreed and undertook not to execute the decree in terms of the said clause 1 till September 30, 1973. What is important to note is, that clause 4 expressly provided that till the said date the defendants would be entitled to remain in possession of the suit premises "as licensees". By clause 5 of the consent terms the defendants agreed with the plaintiffs and gave an undertaking to the Court to hand over possession of the suit premises to the plaintiff on or before September 30, 1973, or on such earlier date that the plaintiffs became entitled to execute the decree. Though there was an express provision in clause 4 of the consent terms in the said case that the defendants were to remain in possession of the premises in the character of licensees till the plaintiffs became entitled to execute the consent decree, my brother Gandhi held that no licence was created in respect of the suit premises, that there was no intention to create any legal relationship between the plaintiffs and the defendants, and that the whole idea was that a decree should be passed immediately and the defendants be evicted and be decreed to hand over possession. He took the view that, since time was to be given for handing over possession, "a provision was required to be made and simply for that purpose, these consent terms provided that during that period, the plaintiffs agreed and undertook not to execute the decree and allow the defendants till that period, to use the premises as they used before". My brother Gandhi, therefore, dismissed the defendants' chamber summons, but adjourned the notice of motion for contempt as well as the notice under Order XXI, rule 22 in order to give the defendants the opportunity to approach the Appeal Court and obtain an order for stay of execution, if so advised. My brother Lentin has also, in his judgment in R. N. Bhagat v. Official Liquidator4 on a Judge's Summons under section 446 of the Companies Act, 1956, taken out by the ex-employee of a company against the Official Liquidator of that company after the making of a winding up order had occasion to consider a similar question. The ex-employee was, by an order of the Company Judge, allowed to continue in possession of the premises in question on his giving an undertaking to the Court to hand over possession whenever called upon by the Official Liquidator to do so. He, however, subsequently claimed the protection of the new section of 15A the Bombay Rent Act, 1947, and took out a Judge's Summons for reliefs somewhat similar to those claimed in the present chamber summons. My brother Lentin dismissed the Judge's Summons and declined to relieve the applicant from the undertaking, inter alia, on the ground that the undertaking having been given to the Court, there was no question of that undertaking having the character of a contract, as was sought to be contended before him, for there could be no contract between a party and the Court. The learned Judge took the view that, on the facts before him no case was made out for relieving the applicant from the undertaking given by him. The learned Judge took the view that, on the facts before him no case was made out for relieving the applicant from the undertaking given by him. The learned Judge further pointed out that, in the case before him, even prior to the coming into force of section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, it was open to the applicant if he had not given the undertaking to have claimed a sub-tenancy as he was in exclusive possession of the flat since 1955, and that it was in order to ensure that he would not make any such claim that the Court had required him to execute an undertaking to that effect, and in view of the undertaking, the applicant could not have successfully set up a claim to tenancy even if section 15A of the Bombay Rents etc. Act had not been enacted. The learned Judge further took the view that the position was in no way different and had in no way changed, merely by reason of the enactment of said section 15A. In my opinion, in view of the fact that the question as to whether a consent decree creates a new tenancy or grants a fresh licence is not one of authority, as already stated above, I do not propose to discuss the unreported judgments of my brother Gandhi and my brother Lentin any further, or to discuss any of the other authorities that were cited before me. 9. It was sought to be contended by Mr. M. H. Shah on behalf of the plaintiff that in the case of a consent decree, the contract is merged in the decree and no longer remains a contract, with the result that one cannot apply to it all the principles of a contract simpliciter. In my opinion, the proposition that a contract merges in a decree, which is applicable when a suit is filed on the basis of a contract and a decree is passed therein, cannot have any application where a new contract is itself the basis of a consent decree, in which case the consent decree partakes of the character both of a contract as well as of a decree. The classic definition of a consent decree is too well-known to need authority. The classic definition of a consent decree is too well-known to need authority. It has been stated times out of number in judicial decisions that a consent decree is a contract between the parties to which is super-added "the command of the Judge" or "the imprimatur of the Court". A consent decree is therefore, as the very expression indicates, a cross-breed between a contract and a decree. It is neither purely a contract nor purely a decree but has some of the characteristics and incidents of both. For example, it can be enforced only by execution as a decree would be enforced. Even if it is contrary to law, it cannot be void or invalid as a contract would be, but would have to be set aside on that ground (vide Govind Waman v. Murlidhar Shrinivas5). It can also be set aside on the ground of fraud on which a contract can be set aside and, like a contract it can create any legal relationship for example, a relationship of tenancy or licence. Such a legal relationship can be created by a consent decree either expressly or by necessary implication, as already stated above. The next question that, I must therefore proceed to consider is whether, on a construction of the consent decree in the present case, it can be said that the plaintiff has granted a licence to the defendant. Mr. M. H. Shah on behalf of the plaintiff sought to contend that the opening portion of the consent decree clearly shows that, since December6, 1968 the defendant, had "no right, title and interest in the said premises", which according to Mr. Shah must mean that he was a trespasser thereon, and the subsequent part of the decree does not confer any right on the defendant, but the plaintiff only agrees thereby to hold his hands for a particular period. I do not accept that contention of Mr. Shah for, in my opinion, when the plaintiff agrees not to execute the decree till March 31, 1974, that necessarily creates in the defendant a co-relative right to resist execution of the decree if the plaintiff made any such attempt prior to that date. I do not accept that contention of Mr. Shah for, in my opinion, when the plaintiff agrees not to execute the decree till March 31, 1974, that necessarily creates in the defendant a co-relative right to resist execution of the decree if the plaintiff made any such attempt prior to that date. It is, therefore, not correct to say that the provision in the consent decree not to execute it till March 3 I, 1974 if certain conditions were complied with by the defendant, does not create any right in the defendant, in that connection. It is pertinent to note that the said provision in the consent decree in the present case cannot be construed as an ex-gratia concession by the plaintiff, having regard to the fact that the defendant is required to pay a certain sum every month for continuing in occupation of the suit premises. The only question is whether that right is a right in the nature of a licence, or is a mere negative right to resist the execution of the decree. Having regard to the definition of the term "licensee" in the new sub-section (4A) of section 5 of the Bombay Rents etc. Act, read with the definition of "licence" in section 52 of the Indian Easements Act, the three ingredients necessary to constitute a licence within the terms of the Bombay Rents etc. Act of 1947 are, (1) a substituting agreement, (2) under which one person allows another to use his immovable property, (3) on payment of a licence fee or charge. In my opinion, the defendant's occupation of the suit premises in the present case had all the three ingredients of a licence necessary for the purpose of seeking the protection of the new section 15A of the Bombay Rent Act of 1947. In that view of the matter, if I am wrong in the view that the present chamber summons is not maintainable as a proceeding under section 47 of the Code of Civil Procedure, I would grant to the defendant relief by way of a permanent injunction restraining the plaintiff from taking any proceedings in pursuance of the consent decree, which is sought in the first part of prayer (b) of the chamber summons. The concluding part of that prayer for a permanent injunction restraining the plaintiff from taking possession of the suit premises except by due process of law is really superfluous for there is no question of the plaintiff having made any such attempt, and indeed, the learned counsel for the plaintiff has made it clear that he proposes to take possession only by resorting to the due process of law. In the view which I have taken, however, this Chamber Summons must be dismissed with costs.