( 1 ) THIS is an appeal against an order of Mitter, J. , dated 9th March, 1959. The application was for the execution of a consent decree dated 14th December, 1955 made in Suit No. 183 of 1955 (Humayun Properties Ltd. V. Ferrazzinis (Private) Ltd. ). The learned Judge has held that there will be "no order" on the application and that the parties should bear their own costs. The facts are shortly as follows: The plaintiff in the suit, Humayun Properties Ltd. , a company incorporated under the Indian Companies Act, is the owner of premises No. 20, Lindsay Street in Calcutta known as "humayun Court". A portion of the said premises was demised to the defendant, Ferrazzinis Limited, now ferrazzinis (Private) Limited. The said suit No. 133 of 1955 was instituted in this Court by the plaintiff against the defendant for possession of the said premises, arrears of rent and mesne profits. An application was taken out In the suit for final judgment under the provisions of Chapter XIIIA of the rules of the Original Side of this Court. At the hearing of the said application, the parties settled the suit and a decree was passed by consent on 14-12-1955. The relevant terms are as follows:"1. There will be a decree for possession in terms of prayer (a) of the plaint with mesne profits at the rate of Rs. 1550/- per month till vacant possession is delivered. 2. The defendant will pay simultaneously with or before the filing of these terms Rs. 1550/- for rent for October, 1955 and mesne profits at the same rate from 1st November, 1955 upto date. 3. The defendant will pay Rs. 1550/- per month as mesne profits or damages within 7 days of each and every month following till vacant possession is delivered such vacant possession will be delivered within a maximum period of 11 years (eleven years) from date of the decree. 4. in default of payment of the mesne profits and/or damages for two months and in default of payment of the costs within the time mentioned in Clause 3 here-of the plaintiff will be at liberty to execute the decree forthwith. "

( 2 ) ON 23-12-1957 an application was made by tabular statement by the plaintiff decree-holder a copy of which is to be found in the Paper Book at pages 1 to 8. In column 7 of the said tabular statement we find the following entry:"by Clauses 4 and 7 of the terms of settlement of the consent decree dated 14th December 1955 it was inter alia provided that the defendant will pay Rs. 1550/- per month as mesne profits or damages within 7 days of each and every month following till vacant possession is delivered such vacant possession will be delivered within a maximum of 11 years (eleven years) from date of the decree and that the terms of the decree will not remove the original obligations of Messrs. Ferrazzinis so far as restoration of the premises is concerned. The judgment-debtors have committed breach of Clause 7 inasmuch as they have made unauthorised alterations and have abolished many portions of the tenanted premises and have also committed breach of Clause 4 by defaulting in payment of rent for all the months of 1957 as provided by aforesaid Clause 4. "

( 3 ) THE decree-holder has asked for possession of the premises in the occupation of the defendant. It would be observed that there are two grounds upon which it is claimed that the plaintiff decree-holder is entitled to ask for immediate possession. The first is a breach of Clause 7 and the second is a breach of Clause 4, of the consent decree. At the hearing of the application, the decree-holder gave up the ground of any breach of Clause 7 and, so we need not consider that at all. Clause 4 requires that the defendant should pay Rs. 15507- per month as mesne profits or damages, within 7 days of each succeeding month, and Clause 5 lays down that in default of such payment for two months, the plaintiff was to be at liberty to execute the decree forthwith. Nothing has been said before us about any payments prior to January, 1957. I take it, th