JUDGMENT : Mohapatra, J. - This is a Plaintiff?s second appeal against the reversing judgment of the lower appellate Court arising out of a suit for rejectment of the Defendants in respect of a house property situate in the town of Berhampur. The Defendant-tenants were introduced as tenants on the basis of a lease dated 1st April 1944 which was to enure only for eleven months. The lease having expired the tenants were allowed to continue as monthly tenants. The Plaintiff served a notice on 2nd September 1952 on the Defendants calling upon them to vacate the suit house on 30th September 1952. The Defendants not having vacated the suit house, the present suit has been brought by the Plaintiff .who has also further prayed for recovery of arrears of rent and for damages since 30th September, 1952. 2. The trial Court had decreed the Plaintiff?s suit. But the lower appellate Court dismissed the Plaintiff?s suit for ejectment putting the Defendants to the terms tat they would make payment of the entire arrears of rent within the period fixed by the lord appellate Court. It appears, the tenants had made a, deposit in compliance with the order of the lower appellate Court. Against this decree passed by the lower appellate Court dismissing the Plaintiff?s suit for ejectment, the Plaintiff has come up with this second appeal. 3. The Plaintiff?s suit is bound to fail on account of a new legislation which has cone into force from 1st January 1959--Orissa House Rent Control Act, 1958 (Orissa Act No. XXXI of 1958).The pertinent section is the definition of the word "tenant" as contained in Section 2, clause (5) which rules as follows: tenant means any person by whom or on whose behalf rent is payable for any house and includes every person who from time to time derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court. If the Defendants are taken to be tenants within the meaning of the definition as contained in the Orissa Act 31 of 1958, the position is inevitable that the suit must fail. If the Defendants are taken to be tenants within the meaning of the definition as contained in the Orissa Act 31 of 1958, the position is inevitable that the suit must fail. On the contrary if the Defendants are not tenants within the meaning of the Act, different considerations will prevail. The portion of the definition which requires consideration for the purpose of determining the matters of controversy appears at the last part "and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court." Mr. Rao, appearing on behalf of the Appellant, contends that the Defendants cannot to be taken to be tenants, because there was a decree for eviction by a competent Court. The argument is not acceptable to me. In order that Mr. Rao could take advantage of the last part of the definition but not a person against whom a decree or order for eviction has been made by such a Court, it is to be found that there was a valid decree for eviction at the time when the Act came into force. The facts stated above indicate that even though a decree for eviction was prayed by the trial Court, it was vacated and Ret aside by the lower appellate Court on 10th July 1958 which was fully operative from 12th July 1958, that is, the date of the deposit of the money which was made a condition for the decree. The fact remains therefore that on passing of the judgment of the lower appellate Court there was no decree or order for eviction of the tenants and as such it cannot be suggested for a moment that the Defendants are not tenants within the meaning of the definition of the Act. 4. Indeed the appeal is now pending-at the instance of the Plaintiff. The best that can be said is that the Plaintiff?s suit for eviction is still continuing and it has not yet been disposed of: In that event certainly within the meaning of the term ?tenant? the Defendants are included and are entitled to the protection of the Act. Mr. Rao relies upon a decision of this Court reported in Pravas Ch. the Defendants are included and are entitled to the protection of the Act. Mr. Rao relies upon a decision of this Court reported in Pravas Ch. Podar v. Kasi Biswanadham, decided by my learned brother Misra, J. The facts are entirely different and the decision in that cas will absolutely have no bearing for determining the point of controversy in the instant case. There the tenant was unsuccessful in both the Courts below and there was a decree passed by the Courts below in favour of the Plaintiff allowing his prayer for ejectment. The tenant-Appellant wanted to take advantage of the provisions of the new Act. It was held by his Lordship that "for certain purposes the appeal is a continuance of the suit but not for all purposes. When a decree for which eviction had been passed before the House Rent Control Act, 1958 has come into force and the matter is pending in appeal at the instance of the tenant, the tenant cannot invoke the protection of the House Rent Control Act for saving him from eviction. He ceases to be a tenant for the purposes of the said Act while the definition of tenant includes tenants in pending suits it seeks to exclude tenants against whom a suit is no longer pending by virtue of a decree." As I have indicated, the main distinguishing feature which will take the case out of the dictum laid down by my learned brother is when there is no decree for eviction at the time when the Act came into force. In such circumstances, therefore, the only remedy prescribed by the Act is under the provisions of Section 7 that a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf Section 6 makes it clear that notwithstanding anything to the contrary contained in any agreement or law no tenant shall be liable to be ejected except as provided in Section 7. The suit, therefore, is clearly not maintainable in the Civil Court and is bound to fail on that account. 5. In conclusion, therefore, the appeal fails and is dismissed. But in the circumstances, parties are to bear their own costs throughout. Leave to appeal prayed for by Mr. Rao is refused, Final Result : Dismissed