JUDGMENT : Barman, J. - The unsuccessful Defendant tenant in the two courts below, in the Plaintiffs-Landlord's ejectment suit, is the Appellant in this second appeal from a confirming decision of the learned Subordinate Judge, Cuttack, where by he affirmed the decision of the learned Munsif, First Court, Cuttack, and decreed the suit in favour of the Plaintiffs-landlords for ejectment of the Defendant-tenant, on the facts and circumstances hereinafter stated. 2. The facts, shortly stated, were these. The Defendant tenant: occupied the suit-house under a deed of registered lease dated December 22, 1944 (Ext. 2) for a period of seven years from the said date. On November 14, 1951 the Defendant-tenant gave notice, u/s 10 of the Orissa House-rent Control Act, for extension of the period of tenancy for one year. On December 21, 1951 the Defendant-tenant filed a petition (Ext. 3) before the House-rent Controller for fixation of fair and equitable rent being House rent Control Case No. 1 of 1952. On December 22, 1951 the seven years' period of the said lease expired. Thereafter, the Plaintiff landlords filed a case being House-rent Control Case No. 23 of 1952 for exemption from the provisions of Section 5, Clause (a), (which provides that the tenant shall not be liable to be ejected whether in execution of a decree or otherwise except for non-payment of rent or breach of the conditions of tenancy, on the ground that they required the suit-house for their own use and occupation, as provided in the Second proviso to Section 5. On July 7, 1952 the Plaintiffs landlords served a notice on the Defendant-tenant to quit the suit house (Ext. 1) by August 1, 1952. On August 27, 1952 the landlords filed the present suit for ejectment and for arrears of rent as claimed. On May 16, 1953 that is to say, after the ejectment suit was filed, the landlords filed before the House-rent Controller a petition, withdrawing the said House-rent Control Act Case No. 23 of 1952 for exemption, as aforesaid, on the ground that it is not necessary. On May 27, 1954 both the said House-rent Control Act Cases, namely, House-rent Control Act Case No. 1 of 1952 and the said House-rent Control Act Case No. 23 of 1952 were disposed of by an order made therein (Ext. C), whereby the rent was fixed at Rs. On May 27, 1954 both the said House-rent Control Act Cases, namely, House-rent Control Act Case No. 1 of 1952 and the said House-rent Control Act Case No. 23 of 1952 were disposed of by an order made therein (Ext. C), whereby the rent was fixed at Rs. 35/- per month from the date of expiry of the lease and the landlords prayer for exemption u/s 5 of the House-rent Control Act was rejected. In Rent Control Appeal No. 134 of 1954 the said order was revised by an appellate order (Ext. D) to the effect that no order of exemption u/s 501 the House-rent Control Act is necessary as the landlords had to drawn their prayer for exemption order, because the landlords in this ejectment suit took the stand that the Defendant-tenant was to be ejected on the ground of non-payment of rent. 3. The defence of the Defendant-tenant was that he is protested by the House-rent Control Act (Orissa Act XI of 1951). In support of his contention be relied on Sections 5, 10 and 13 of the said Act. Section 5 provides for continuation of existing tenancy from month to month and further that the tenant shall not be liable to be ejected unless the landlord obtains exemption from the provisions of Section 5, Clause (a) in certain cases, including the ground of bona fide requirement of the house by the landlord for his own use and occupation, as provided therein. Section 10 provides for continuation of tenancies other than tenancies from month to month, if the tenant gives one month's written notice of his intention extend the period of tenancy and that upon delivery of such notice the tenancy shall be deemed to have been extended for the period specified in the notice. Section 13 provides that no suit or proceeding for eviction can be instituted by the landlord against the tenant without the order of exemption by the Controller in certain cases as mentioned therein. The defence taken by the tenant was that unless a certified copy of the order of exemption was produced the suit would not lie: He also relied on the provisions of the new House-rent Control Act, 1958 (Act XXXI of 1958) and submitted that he is protected because he is tenant within the meaning of Section 2 (5) of the new Act. 4. 4. The trial court found that the lease was for seven years; that there was no proof of payment of rent subsequent to the expiry of the lease; that the Defendant-tenant was allowed to hold over as tenant from month to month; that the landlords' notice to quit was valid; and passed a decree for ejectment of the Defendant-tenant in favour of the Plaintiffs-landlords on December 12, 1955. The learned lower appellate Court, while confirming the decision of the trial court, however found that the license was inoperative; and with regard to notice u/s 10 he found that it was not necessary as the lease is invalid and the tenancy was from month to month, and that Section 10, therefore, is not applicable to the facts of the case; further that there is no proof that, the Defendant-tenant ever sent any registered notice u/s 10. In conclusion, the court below in agreement with the trial court, decreed the suit in favour of the landlords. 5. The point, urged on behalf of the Defendant-tenant (Appellant herein), is mainly based on the alleged legal position that he is protected by the House rent Control Act on the grounds as aforesaid,. The Defendant-tenant further contended that inasmuch as the notice u/s 10 extending the period of lease for one year had been given, the tenancy is denied to have been extended by one year till December 22, 1952; that the, landlords notice to quit, having been on July 7, 1952, while according to the tenant, the lease was still subsisting by reason of the extension by the tenant's laid written notice: u/s 10, is not a valid notice to quit; furthermore that the certified copy of the order of exemption having not been produced as required by Section 13, the suit must fail; that the present appeal being a continuation of the suit by virtue of Section 2(5) of the new Act XXXI of 1958, the tenant is protected. 6. 6. The defence contentions, based on the House Rent Control Act, were successfully repelled by the Plaintiffs-landlords' stand that the tenant having been a defaulter for non-payment of rent which fell in arrears as aforesaid, the order of exemption as required by the Second proviso to Section 5 of the Orissa House Rent Control Act is not necessary; that it having been found that the lease was inoperative and the Defendant was a tenant from month to month Section 10 is therefore not applicable to the facts of this case; further that in any event there is no proof that-the Defendant-tenant ever sent any registered notice as contemplated u/s 10. On the question of the alleged necessary for obtaining exemption order, the well settled legal position is that where a suit for eviction of a monthly tenant from a house, though based on a valid notice to quit as provided in the Transfer of Property Act, is itself due to the failure of the tenant to pay rent, the special protection from eviction conferred by Section 5(a) of the Orissa House Rent Control Act does not apply and there is no need for the landlord to obtain an exemption order under the second proviso to that section. It was in this view of the legal position, that the Plaintiffs-landlords had been advised to withdraw the said House Rent Control Act Case No. 23 of 1952 for exemption, which was accordingly withdrawn because it was considered not necessary as aforesaid. Section 5(a) does not confer any additional right on the landlord to evict for mere non-payment of rent or breach of be conditions of tenancy; the landlord's right in this respect continues to be regulated by the relevant provisions of the Transfer of Property Act. So, it is that a person-whose tenancy hag been determined by valid notice to quit (as in the present case) but who in spite of it is in occupation of the suit-house, is not a 'tenant' within the meaning of that word in Section 13 of the Orissa House Rent Control Act under which the Defendant Appellant herein seeks protection. 7. 7. As regards the alleged applicability of the new Orissa House Rent Control Act XXXI of 1958, on which the tenant Defendant in the last resort, relied this Court has already decided that the new Act has not been given retrospective effect, and accordingly the tenant is not entitled to the benefit of the new Act. No doubt for certain purposes, an appeal is a continuation of a suit but not for all purposes; when a decree for eviction had been passed before the House-rent Control Act XXXI of 1958) came 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 purpose 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. 8. I am, therefore, of opinion that none of the contentions, raised on behalf of the tenant-Appellant herein, are tenable in law. The decision of the Court below is upheld. This appeal is, accordingly, dismissed with costs. Final Result : Dismissed