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Therefore, on the term and conditions as incorporated in the compromise decree it was held that no new lease has been created and hence the decree-holder was entitled to execute the decree. Similarly in Dattaterya v. padamkar it was held buy this Court that where a conditional decree for eviction either by consent or in invitum is passed by the Court the landlords right to eviction becoming effective on the failure often a to pay the amount of rent mentioned in the decree within a stipulated time, the tenant cannot become a statutory tenant under Section 5(11)(b) of the Bombay Rent Act, during the time granted to him to make the payment . Therefore, it was held that he was liabel to be evicted on his failure to comply with the terms of the decree. In the said case decree granted did not require the judgment debtor to pay future rent or the rent which had fallen due during the pendency of the suit. it was also not contemplated in the decree that the defendant was to continue in possession as tenant for an indefinite period. In substance there the defendant was directed to surrender possession to the landlord but only the tenant was permitted to remain in possession till the day specified in the decree. It was further observed by this Court that reading the decree as a whole, what was granted to the defendant was a concession, and the direction that the plaintiff landlord was to recover possession on failure of the defendant to pay the specified amount within a specified time, was not by way of penalty and therefore, the question of granting any relief to the judgment debtor will not arise. Therefore from the bare reading of the decision referred to here in before it is quite clear that all these decisions were based on the facts and circumstances of those case, and much depended upon the language used in the consent decree. There is a distinction between the consent decree where under the tenancy is continued and a consent decree for eviction,. where under an ex-tenant is allowed to retain possession for a specified period byway of concession. In such cases the landlord's right to take possession is postponed and no new tenancy is cheated, nor the old tenancy is continued. On the other hand, in this Court has taken a view that by virtue of the consent decree, k the defendant can become a contractual tenant of the plaintiff. In that case by a consent decree the tenant admitted that he was a monthly tenant and agreed to deliver possession of the demised premises to the plaintiff on January 31, 1948 and to pay rent every month till the expiry of the period. In these circumstances this Court held that by virtue of the consent decree the defendant became a contractual tenant of the plaintiff and was, therefore, entitled to claim the benefit of Section 12(1) of the 1947 Act. Position in this behalf was also considered by the Supreme Court in Bai Chanchal v. Syed Jalaluddin. . In that case a decree for eviction of lessee from leased lands on the basis of consent decree was passed. Though the judgment debtor was liabel to immediate eviction, the landlord allowed him to continue in possession for about five year from the date of decrees a concession. Mesne profits at a higher rate was required to be paid by the judgment-debtor. A clause was incorporated in the decree that in case of default of payment of mesne profits the judgment -debtor possession and in these circumstances the Supreme Court held that the terms of the consent decree neither constituted a new tenancy nor licence. The decision of its Court in was referred to by the Supreme Court and was distinguished. While distinguishing the said decision it was observed by the Supreme Court:

In the case before me the landlord accepted the judgment debtor to be his sole tenant. The judgment debtor also admitted that he is the monthly tenant of the plaintiff. Then it was also agreed between the parties that the defendant shall pay rent to the plaintiff from 1-7-1953 at the rate of Rs. 25/- per month, which payment was towards the past rent. So far as payment of future rent is concerned, it was agreed between the parties that if the judgment debtor fails to pay his rent for any three months after 1-9-1954 then the plaintiff will be at liberty to obtain possession of the suit shop by applying for execution. From the compromise application filed before the Court it seems that there was dispute between the parties as to whether the defendant is the sole tenant or not. In the compromise petition it was admitted by the defendant that he is monthly tenant of the plaintiff and he is withdrawing all the adverse allegations made by him in his written statement wherein he has stated that somebody else was also a tenant. As per this compromise petition it was agreed between the pettiness that defendant No. 1 will pay to the landlord Rs. 25/- per month as rent from 1-7-1953. it was also agreed between the parties that if the defendant tenant will remaining arrears of rent fro any three months after 1-9-1954 , then the plaintiff will be entitled to apply for execution of the decree and get possession of the tenant and in view of this compromise between the parties, a consent decree was passed. From the record it is further clear that the judgment-debtor continued to be a tenant and paid the rent regularly till November, 1962 . In the Darkhaswt application filed by the decree holder before the executing Court it was con tended by the plaintiff that he had not received from the defendant rent for three months, j.e. for November and December 1962 and January 1963 and, therefore, possession of the demised premises shoudl be given to him. it was specifically agreed between the parties that the defendant, the present judgment debtor, is the tenant of the suit premises and he will continue to be a tenant even after the decree. This relationship of the landlord and tenant between the parties continued till the year 1963, when a default was committed by the judgment - debtor. Therefore, from the material placed by the parties before the Courts in this case, it is quite clear that it was intended by the parties that the relationship of landlord and tenant will continue and by the said consent decree in fact the old tenancy was continued on new terms and a new contract of tenacny was entered into by the parties. Such an inference is inevitable having regard to the recitals of the compromise application as well as the consent decree and the conduct of the parties. as observed by the Supreme Court in Bhawanji v. himatlal, , the assent of the landlord other continuance of possession after the determination of the tenancy will create a new tenancy in view of the provisions of Section 116 of the Transfer of Property Act. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term is over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. Reference in that cases was made to the decision of Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and then it was observed by the Supreme Court:

"The Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherea, J. speaking for the majority said, that the tenancy which is created by the 'holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J. in his dissenting judgment, has substantially agreed with the majority as regard s the nature of the tenancy created by Section 166 of the Transfer of Property Act, and that is evident from the following observations:-

In the present case also from the conduct of the parties it is quite clear that it was the intention of the landlord to treat the tenancy as subsisting and this was done with express consent of the parties as incorporated in the compromise application as well as the consent decree. By bilateral contract between the parties the notice of termination was not only waived but it was agreed that the old tenancy will continue on the terms and conditions incorporated in consent decree and a new contract of tenancy was created between the parties. Therefore, it was not open for the landlord to have secured possession of the house without taking recourse to the provisions of the Rent Control Order. However. it was contended by Shri Kherdekar that even if it is assumed that new tenancy was created which could not be terminated without seeking permission of the Rent Controller, it was open for the parties to enter into a contract to wavie the said protection and right conferred upon the tenant under the Rent Control Offer. It is not possibel for me to accept this contention. In my opinion, new contract of tenancy created between the parties by virtue of the compromise decree was protected by the provisions of Rent Control order and it was not open of the parties to waive the said right conferred upon the tenant by the Rent Control Legislation. Such contracting out, though not specifically prohibited by the Rent Control Order, was prohibited by necessary implication and it was not open for the parties to have given a go-bye to the said provisions of the Rent Control Order . From the provision of clause 13 (3) (i) of the Rent Control Order it is quite clear that one of the grounds on which permission could be granted by the Rent controller to give notice to determine the lease is, taht the tenant is in arrears of rent for an aggregate period of three months and the he failed dot deposit with the Controller the amount of arrears ordered to be deposited by the Controller within such time ass may be fixed by him. On this ground it is open for the landlord to approach the Rent Controller to seek permission to give notice to determine the lease of the tenant. Reference can usefully be made in this behalf to the observations of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam, . After referring to the decision of a Gujarat High Court in Rasiklal Chunilal's case the Supreme Court observed: