ORDER R.S. Garg, J. 1. The plaintiff/landlords/non-applicants filed a civil suit for eviction of the present applicants in which a decree was granted in favour of the landlords. The tenant being dissatisfied by the said decree, preferred a regular appeal No. 14-A/1996 in the Court of the Third Additional District Judge, Bilaspur. Before the matter could be disposed of finally, an application under Order 23, Rule 1 CPC was filed before the appellate Court. The application was signed by the present applicants/defendants and was also counter-signed by the non-applicants/landlords. In view of the terms of the application, the appeal was dismissed. Later on, the landlords tried to execute the decree which was resisted by the present/applicants on the grounds (1) that the decree has become in executable, (2) the landlords were not ready and willing to perform their part of the contract and (3) the present applicants have already instituted a suit for specific performance. The respondents/landlords contested the application inter alia on the grounds (1) that as the adjustment was not recorded under the provisions of Order 21, Rule 2 CPC, the Court cannot take cognizance of the adjustment under sub-rule 3 of rule 2 of Order 21, (2) the present applicants were never ready and willing to perform their part of the contract, and (3) the decree would not become in executable. The present applicants subsequently raised one more objection that in view of the application filed under Order 23, Rule 1 CPC, the landlords having given up their right to execute the decree and as the same was a waiver of their rights, the decree has become in executable. The respondents contending otherwise, submitted that the decree has become in executable because in any case when the decree was put to execution, the applicants were required to submit to the executing Court that the decree had been adjusted out of Court and as they have not done it, the Court was justified in not taking cognizance of the alleged adjustment. 2. 2. The executing Court, after hearing the parties, came to the conclusion that the application filed under Order 23, Rule 1 CPC was an application for withdrawal of the appeal, it led to adjustment and as the said adjustment was not certified by the executing Court, the executing Court would not take into cognizance the said adjustment and no question regarding excitability of the decree would arise for consideration under section 47 CPC. Being dissatisfied by the said order, the judgment-debtors have preferred this revision petition. 3. Shri Agrawal learned counsel for the applicants submits that the court below did not properly appreciated the distinction between adjustment which is required to be recorded by the executing Court under Order 21, Rule 2 CPC and the conscience waiver of the right of the decree-holder to execute the decree. He submits that as the landlords had categorically stated before the appellate Court that they would not execute the decree and would alienate the property in favour of the present applicants, it has to be read that the decree became in executable and the landlords gave up their rights which were available to them under the decree passed by the trial Court. Shri Shroti learned counsel for the non-applicants submits that the application filed under Order 23, Rule 1 CPC was in fact an application for adjustment. He submits that even if his clients have counter-signed the application the effect only was that the appeal filed by the present applicants was to be dismissed. He submits that if the landlords had filed execution, the present applicants were obliged to move an application under Order 21, Rule 2 CPC for recording of the adjustment. He submits that the application filed before the appellate Court was nothing but an adjustment. 4. Both parties placed strong reliance on the judgment of the Supreme Court reported in the matter of Sutana Begum v. Premchand Jain, 1997 (1) S.C.C. 373 . Shri Agrawal submits that the Supreme Court has considered the impact and effect of conscience waiver and, therefore, this Court should also consider this aspect of the matter. He submits that the Supreme Court does not say that if the right of execution is waived, then too the same is required to be certified under the provisions of Rule 2 of Order 21. He submits that the Supreme Court does not say that if the right of execution is waived, then too the same is required to be certified under the provisions of Rule 2 of Order 21. On the other hand, Shri Shroti submits that the Supreme Court has clearly observed that if the agreement amounted to adjustment of the decree, then it is required to be certified under Rule 2 of Order 21. For appreciating the matter, a look to the provisions of Order 21, Rule 2 and section 47 CPC would be necessary. Order 21, Rule 2 CPC reads as under- 2(1) Where any money payable under a decree of any kind is paid out of court or a 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 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 recognized by any Court executing the decree. Section 47 reads as under: 47(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the exeuction, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Section 47 reads as under: 47(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the exeuction, 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 person is or is not the representative of a party, such question shall, for the purposes of the 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 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 he delivery of such properly to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge of satisfaction of the decree within the meaning of this section. 5. Annexure A-1 filed before this Court is a photo copy of the certified copy filed before the appellate Court in appeal No. 14-A of 1996. The application reads as under- Para 2 of the application clearly reads that the appellants (present applicants) did not wish to continue that appeal and the respondents (non-applicants) were not to execute the decree but after receiving the full amount were to execute a registered sale deed in favour of the appellants (present applicants). The application was signed by the applicants and was counter-signed by the non-applicants. It would not be out of place to mention that on 20.9.96, an agreement was also entered into between the parties reciting that a sum of Rs. 2,75,151/- shall be paid by the present applicants to the respondents. On the date of the agreement a sum of Rs. 5,100/- was paid by the present applicants to the non-applicants. Sixty five percent of the balance amount was to be paid by the present applicants to the non-applicants on or before 19.10.96 and the rest of the amount was to be paid latest by 19.11.96. The non-applicants do not dispute execution of the agreement dated 20.9.1996. 5,100/- was paid by the present applicants to the non-applicants. Sixty five percent of the balance amount was to be paid by the present applicants to the non-applicants on or before 19.10.96 and the rest of the amount was to be paid latest by 19.11.96. The non-applicants do not dispute execution of the agreement dated 20.9.1996. In view of the application, appeal No. 14-B/96 was dismissed by the appellate Court on 3.10.96. The appellate Court ordered that the appeal stands dismissed and the parties shall bear their own costs. 6. Certain disputed facts thereafter came into existence. The present applicants say that respondent No. 1 Padma Ben, after executing the agreement in favour of the present applicants left the township, without leaving details of her whereabouts. They submitted that they were always ready and willing to perform their part of the contract but the respondents were avoiding the performance. On the other hand, the non-applicants submit that some time after the agreement, they had informed the present applicants for performance of their part of the contract, i.e. to pay the amount to the present applicants but the present applicants avoided the payment. These questions, at this stage, are not required to be considered by this Court because any finding given in favour or against any of the party would certainly prejudice their rights, which they are yet to establish in the civil suit filed by the present applicants against the non-applicants for specific performance of the contract. It is undisputed that the civil suit for specific performance of the agreement has already been filed. 7. After the application for execution of the decree was made, the present applicants moved an application under section 47 read with section 151 CPC. By the application, it was contended that the matter was compromised between the parties and one of the term was that the non-applicants shall not execute the decree. He also submitted that in view of the statement made by the non-applicants, before the appellate Court, that they would not execute the decree, the decree now cannot be put into execution. The respondents, in their reply, did not deny filing of the application before the appellate Court or its contents. He also submitted that in view of the statement made by the non-applicants, before the appellate Court, that they would not execute the decree, the decree now cannot be put into execution. The respondents, in their reply, did not deny filing of the application before the appellate Court or its contents. What was contended by them was that the applicants obtained the agreement in their favour by practising fraud, they had assured the non-applicants that they would purchase the property but thereafter did not purchase the same. They also submitted that the said agreement was for a limited period, time was of the essence of the contract and as the applicants did not purchase the property well within time, the decree has become in executable. The trial Court by the order impugned found that the application filed under Order 23, Rule 1 CPC lead to adjustment and as the adjustment was not certified under Rule 2 of Order 21, no cognizance of the same can be taken, under sub-rule 3 of rule 2 of Order 21. This Court is required to consider as to what was the effect of the application filed under Order 23, Rule 1 CPC. 8. Shri Agrawal learned counsel for the applicants submits that the respondents/decree-holders have given up their right of execution of the decree, therefore, the conscious waiver must be attributed to the decree-holders and it must be held that the decree has become in executable. He submits that if the judgment of the Supreme Court reported in (1997), 1 S.C.C. 373 (Sultana Begum v. Premchand Jain) is appreciated in its true perspective, it would lead to the only irresistible conclusion that there is no conflict between section 47 and the provisions of Order 21, Rule 2 CPC. He contends that if there is a conscious waiver of the right to execute the decree, then the question of recording of adjustment does not arise. On the other hand, Shri Shroti learned counsel for the non-applicants submits that the ratio of Sultana Begum's case (supra) is clearly that if adjustment is not recorded by the Court or no application for recording the adjustment is filed, then the Court shall not consider the said adjustment and the decree would continue to be executable. To appreciate Sultana Begum's case (supra) facts of the said case are required to be appreciated. To appreciate Sultana Begum's case (supra) facts of the said case are required to be appreciated. In the said case, Sultana Begum was the landlady of the suit premises which were in occupation of the respondents as tenants. The said suit ended in a compromise and the compromise decree provided that the respondents would vacate the premises and hand over its possession by a particular date and they would pay rent at a particular rate from the date of the suit till delivery of possession. The premises were not vacated by the tenant and its possession was not handed over to Sultana Begum therefore, she filed an application for execution which was resisted by the respondents by means of objections filed under section 47 CPC. The respondents pleaded that possession of the premises in question was handed over to the attorney of Sultana Begum on 31.10.1991 and the said attorney, however, allowed the respondents to remain in possession of the premises as a licensee on payment of the licence fee of Rs. 5,000/- per month. It was also pleaded that since possession of the disputed premises was handed over to the attorney, the decree stood satisfied and as such it could not be executed. Sultana Begum in reply pointed out that the power of attorney executed by her in favour of the attorney was cancelled by notice dated 1.12.1991 and the said attorney was informed by another notice not to act as the appellant's (sic) in any manner whatsoever. She also submitted that there was no occasion for the respondent to hand over possession of the premises to the attorney. The trial Court by Its judgment/order allowed the objections of the respondents in so far as they related to the delivery of possession. The revision against the said order was dismissed by the High Court. Therefore, the matter was taken up to the Supreme Court. The High Court while dismissing the revision petition observed that the provisions of Order 21, Rule 2 CPC were not applicable to the facts of the case. The revision against the said order was dismissed by the High Court. Therefore, the matter was taken up to the Supreme Court. The High Court while dismissing the revision petition observed that the provisions of Order 21, Rule 2 CPC were not applicable to the facts of the case. The question which came up for consideration before the Supreme Court was whether the objections regarding surrender of possession and grant of fresh licence by the attorney amounted to adjustment of the decree within the meaning of Order 21, Rule 2 CPC or not and if yes could it be recognised by the executing Court, in view of the bar created by sub-rule (3) of rule 2 of Order 21. It was contended before the Supreme Court that the decree was executable and ought to have been executed by the executing Court. Counsel for the objector submitted before the Supreme Court that in view of section 47 CPC, it was open to the respondents to raise the plea regarding inexcusability of the decree and the executing Court was under an obligation to decide the question whether the decree was executable or not. The Supreme Court, on the facts, came to the conclusion that the intention of the parties clearly was not to extinguish the decree for eviction but to creat only a licence allowing the respondents to stay in the premises for a while. The Court also observed that the intention of the parties was the decisive test as to whether the rights under the decree were given up or not. 9. The Supreme Court observed that there does not appear to be any an thesis between the provisions of section 47 and Rule 2 of Order 21. Section 47 deals with the powers of the executing Court, while Order 21, 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 the decree either by payment of money (payable under the decree) out of the Court or adjustment in any other manner by consensual arrangement. Since section 47 provides that the question relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree, it clearly confers a specific jurisdiction for determination of those questions on the executing Court. Since section 47 provides that the question relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree, it clearly confers a specific jurisdiction for determination of those questions on the executing Court. In the words of the Supreme Court, section 47 deals with the powers of the Court. The Supreme Court observed that Order 21, Rule 2 applies to specific set of circumstances. If any money is payable under a decree, irrespective of the nature of the decree and such money is paid out of the Court, the decree-holder has to certify such payment to the Court whose duty 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. The judgment-debtor has been given the right to inform the court of such payment or adjustment after notice to the decree-holder. Sub-rule (3) of Rule 2 of Order 21 simply provides that the payment or adjustment which has not been certified or recorded under sub-rule (1) or (2) of Rule 2 of Order 21, shall not be recognised by the Court executing the decree. The wrinkle sought to be created by the language of these two provisions can be creased out by property appreciating the language of these two provisions. Section 47 simply provide that all questions arising between the parties and relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. If excitability of the decree is challenged on the ground of some adjustment then the party challenging the excitability of the decree has to satisfy the Court that the decree was satisfied because of some adjustment and the said adjustment has been so recorded by the Court either on certification by the decree-holder or on the application of the judgment-debtor to the said Court. If the judgment-debtor comes to the Court with a plea that he stands discharged from his liabilities arising from the said decree and that discharge is based on certain adjustment, then again he has to satisfy the Court executing the decree that the said adjustment was certified by the decree-holder or was recorded by the Court on an application by the judgment-debtor. Similarly, if the excitability of the decree is challenged on the ground that the decree stands satisfied and is not executable because of certain adjustment like payment of money or the judgment-debtor has performed his part of the duty under the decree, then the Court will have to enquire into the matter. If the Court comes to the conclusion that the said satisfaction is claimed on certain adjustment, then the Court shall further proceed in the matter, if the Court comes to the conclusion that the said satisfaction was neither certified by the decree-holder under Order 21, Rule 2(1) or was not recorded by the Court on an application filed under Order 21 Rule 2(2), then in view of Order 21, Rule 2(3) the Court shall refuse to recognise the alleged adjustment. The question therefore to be considered by the Court would depend upon the facts of a particular case. If an objection in relation to the execution, discharge or satisfaction of the decree is depending upon an adjustment out of the Court, then the Court would follow the procedure as provided under Rule 2 of Order 21. If the Court comes to the conclusion that the alleged adjustment was neither certified by the decree-holder nor was recorded on the application of the judgment-debtor, then the Court shall not recognise such adjustment. The statutory mandate would come into play in a case where the excitability of the decree is challenged on the ground that the judgment-debtor has discharged his duty or the decree stands satisfied. 10. In the matter of Sultana Begum (supra), the Court found that the plea relating to delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of the decree which shall consequently be treated to have been partially set aside to the extent of eviction of the tenant from the disputed property. 10. In the matter of Sultana Begum (supra), the Court found that the plea relating to delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of the decree which shall consequently be treated to have been partially set aside to the extent of eviction of the tenant from the disputed property. The Court further observed that if that was so, it was required to be recorded and certified under Order 21, Rule 2 (sic) this was not done, the provisions of Order 21, 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 was already delivered to the appellant's attorney and the decree to that extent stood satisfied. In the present case, the applicant contends that he is not seeking any adjustment. According to him, the decree-holder consciously waived his right to execute the decree. There is no question of certifying or recording adjustment. 11. The Supreme Court, in the said judgment, observed: 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 specially in view of the fresh agreement between the respondent and the appellant through the attorney. The answer is that the rights available to the appellant under the decree were preserved and not given up. Tenant or lessee of a premises is a person in whose favour 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. The licensee'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. The right to exclusive possession is the basic feature of the tenancy created by lease. The licensee'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 afresh 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 Konchada Ramamurthy Subudhi v. Gopinath Naik (1968) 2 S.C.R. 559 , AIR 1968 S.C. 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 or 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 in executable. 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. v. R.N. Kapoor, , (1960) 1 S.C.R. 368 : A.I.R. 1959 S.C. 1262, in which one of the prepositions laid down was: The real test is the intention of the parties whether they intended to create a lease or a licence. The Supreme Court in the above paragraphs was considering the question whether the intention of the parties was to give up the rights available to the decree-holder or the party was simply seeking an adjustment. The Supreme Court clearly held that it has to be decided on the evidence and the intention of the parties as to whatthe state of affair really was. The Supreme Court ultimately held that the rights under the decree were neither intended to be surroundered nor were they actually surrendered and the decree remained preserved and the creation of a licence had not the effect of destroying the decree. In the opinion of this Court, the Court has to appreciate two things : (1) Whether the party is claiming any adjustment of the decree; or (2) is seeking any interpretation that the rights under the decree were given up or waived consciously by the decree-holder. 12. The word 'conscious' according to the Oxford Dictionary, means 'with one's mental faculties awake', 'awareness of one's surroundings', 'aware', 'realize by one self. The word 'waiver' means to forego or dispense with or to refrain from using or insisting on one's right, claim or privilege, etc. In the matter of Ross T. Smyth & Co. v. Bailey Son and Co. (1940) 3 All. E.R. 60, Lord Wright observed: The word 'waiver' is a vague term used in many senses. It is always necessary to ascertain in what sense and what restrictions it is used in the sense of election as where a person decides between two mutually exclusive rights. In the matter of Badri Narayan v. Jawahar Singh A.I.R. 1961 M.P. 29, this Court observed that where a decree-holder accepts the payment in kind and in cash, after the dates on which they fell due, it clearly amounted to waiver. Waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right. It is not possible or desirable to lay down the circumstances in which the Court can exercise its discretion against' the plaintiff but if the circumstances be such that the conduct or neglect of the the plaintiff is directly responsibly in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such relief. 'Waiver' is an intentional relinquishment of a known right. There can be no waiver, unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. Waiver belongs to realm of contract and depends on the conduct of the parties. It may be express or implied. A party may expressly agree to forego its rights under a contract or under a provision of a statute. It is also open to a party by his conduct to release his rights by implication. Waiver is an intentional relinquishment of known right or in other words, it can be said that it is an abandonment of a right in such a way that the other party is entitled to plead abandonment by way of confession and avoidance, if the right is thereafter asserted. It can be said that waiver is a voluntary and intentional abandonment of a known existing legal right given up under the decree or under the law and such giving up of the right is with the knowledge and intention, then giving up of such right is waiver. Conscious waiver would only mean that the party was fully aware of its rights and intentionally and voluntarily had given up its rights by giving an assurance to the other party that it would not exercise such rights given to it either by the Court or by law. 13. The application filed before the appellate Court in appeal No. 14-A/86 has been quoted in para 5 of this order. According to para 1 of the application the parties submitted before the Court that the matter has been compromised between the parties and the plaintiff/decree-holder has agreed to sell the property to the appellant/defendant and has obtained an earnest money (Bayana) of Rs. 5,100/-. Whether the parties entered into some other agreement was not referred in the said application. The application does not show whether the agreement entered into between the parties was annexed with the said application. The proceedings recorded by the Court on 3.10.1996 do not show that a copy of the agreement entered into between the parties was produced before the Court. The application does not show whether the agreement entered into between the parties was annexed with the said application. The proceedings recorded by the Court on 3.10.1996 do not show that a copy of the agreement entered into between the parties was produced before the Court. Para 2 of the said application clearly shows that the appellant did not wish to prosecute the appeal and the decree-holders were not to execute the decree but were to execute a registered sale deed in favour of the appellant/defendant after receiving the fullest amount. Para 3 read that the appeal be dismissed and the parties be directed to bear their own costs. Though the application was filed under Order 23, Rule 1 CPC but it was signed by the decree-holders also in acceptance of the terms mentioned in the said application. The appellate Court dismissed the appeal in view of the said application and directed the parties to bear their own costs because the decree-holders had no objection to grant of the said application. 14. It is clear from the proceedings that the appeal was dismissed. The appellants waived or gave up their rights to prosecute the appeal on an assurance given by the decree-holders that they would not execute the decree but would execute a sale deed in favour of the appellants/defendants after receiving the fullest consideration. 15. Shri Agrawal submits that para 2 of the application clearly shows a conscious waiver of the rights on the part of the decree-holder, while Shri Shroti submits that para 2 in fact amounted to an adjustment and was required to be certified or recorded under the provisions of Rule 2 of Order 21. As observed above, the Court has to consider that what was the intention of the parties on the date of the application filed under Order 23, Rule 1. Undisputedly, the agreement was entered into between the parties that for a sum of Rs. 2,75,151/- the properties would be sold by the plaintiff/decree-holders in favour of the defendants, and plaintiff had received a sum of Rs. 5,100/- as advance under the agreement. It is not in dispute that in view of the said application, the appeal was dismissed and as no objection was raised by the decree-holders to the grant of the application, the parties were directed to bear their own costs. 5,100/- as advance under the agreement. It is not in dispute that in view of the said application, the appeal was dismissed and as no objection was raised by the decree-holders to the grant of the application, the parties were directed to bear their own costs. The application was consciously signed by the decree-holders before the appellate Court. If they were not agreeable to the said application, or the terms contained in the said application, they were not required to sign the application. If there was some agreement out of the Court, it was not required to be pleaded before the said Court. The appellants in the said appeal could have straightway come to the Court and said that as there was some adjustment or agreement out of the Court, they were not pressing the appeal. Para 2 of the compromise application clearly shows that the decree-holders agreed in favour of the appellants/defendants that they would not execute the decree and would execute a registered sale deed after receiving the fullest consideration. The decree-holders consciously waived their right to execute the decree. The intention of the parties on the date of the application was clearly to come to a compromise that the appellant would not prosecute the appeal and the decree-holders/plaintiffs would not execute the decree but would execute a sale deed in favour of the appellant/defendant. It is not a case where in view of some adjustment arrived at out of Court, the appeal was got dismissed. The decree-holders unequivocally, candidly, specifically and voluntarily made the statement before the Court in writing by affixing their signatures to the application that they would not execute the decree. If that was so, it was not an adjustment but in fact was waiver of their right. Order 21, Rule 2 provides that where a decree for money or 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 and if it is not so done, then the judgment-debtor may inform the Court of such adjustment of which the Court shall issue notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. Sub-rule (3) would come into play only if a payment or adjustment has not been certified or recorded, under sub-rule (1) or sub-rule (2). Sub-rule (3) would come into play only if a payment or adjustment has not been certified or recorded, under sub-rule (1) or sub-rule (2). The mandate of the legislature is that the Court shall not recognize the adjustment which has not been certified or recorded. If the case is not of adjustment but is in relation to the excitability of the decree on the ground that the decree-holder/decree holders have given up their rights to execute the decree or the decree-holders, intentionally and consciously wavied their right to execute the decree, the Court will have to enquire into as to what was the real intention of the parties. If on enquiry the Court comes to the conclusion that in fact it was an adjustment which was either uncertified or un-recorded, because of non-certification or non-recording of the same, the Court can refuse to recognise the same, but if the Court comes to the conclusion that it was not an adjustment but in fact the decree-holder waived his right voluntarily then the Court will have to record a finding that the decree has become in executable because of the conduct of the decree-holders or the assurance given by them. The judgment in the matter of Sultana Begum simply says that if it is a case of un-recorded or un-certified adjustment and the intention of the parties was not to waive their rights, then the Court cannot take cognizance of such adjustment. The Supreme Court does not say that if it was not an adjustment and the intention of the decree-holder was to voluntarily or consciously give up his rights, then the executing Court would not decide the matter. The real test is the intention of the parties whether they intended to create a new right or not. If the Court comes to the conclusion that by giving up the right to execute the decree, the decree-holder agreed in favour of the tenant/defendant that the property would be sold in his favour, then the Court will have to hold that the decree had become in executable. If the Court comes to the conclusion that by giving up the right to execute the decree, the decree-holder agreed in favour of the tenant/defendant that the property would be sold in his favour, then the Court will have to hold that the decree had become in executable. In the opinion of this Court, the language of the application, the agreement entered into between the parties, the notice issued by the decree-holder to the judgment-debtor after the appeal was dismissed, clearly show that the decree-holders had given up their rights to execute the decree and in fact consciously waived their right to execute the decree and thereby made the decree inexcusable. The Court below was not justified in holding that the decree was executable as the adjustment was not certified or recorded by the Court which had to execute the decree. In the opinion of this Court, there was nothing like an adjustment between the parties but in fact it was a case where in view of the agreement between the parties, the decree became in executable. 16. In view of the above findings, it has to be held that the decree became inexecutable and the plaintiff/decree-holders were not entitled to execute the same. The revision deserves to and is accordingly allowed. There shall, however, be no orders as to costs. Appeal allowed