JUDGMENT-This appeal, which arises out of execution proceedings, has raised a somewhat ticklish point of law. The respondent Akaji Umathe had filed a suit against the appellant in C. S. No. 291 of 1959 for eviction arid arrears of rent. The suit was instituted on 5-9-1959. Prior to the filing of the suit, he had obtained the permission of the appellate authority in rent control proceedings for terminating the tenancy of the defendant. The application to the Rent Controller was made under clause 13 (3) (i), (ii), (iv), (vii) and (ix) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. that is to say on the grounds that the tenant had failed to pay rent and was in arrears for a period of three months, that he was a habitual defaulter, that the premises were used for purposes other than the one for which it was leased and that the landlord required the premises for essential repairs and also on the gl0und that the tenant was causing nuisance. The Rent Controller dismissed the application, holding that the tenant was not in arrears, that he was not a. habitual defaulter and that the premises did not require any repairs at all as the house, was in good condition. He also held that the landlord failed, to prove the illegal acts alleged to have been committed by the tenant. The plaintiff went in appeal and the Deputy Commissioner concurred with the findings of the Rent Controller on all the points except the requirement of the premises by the landlord for the purpose of effecting repairs. He, therefore, granted permission to the landlord to serve a quit notice under clause 13 (3) (vii) of the Rent. Control Order. The defendant filed Special Civil Application No. 236 of 1959 on 15-7-1959 challenging the correctness of the order passed by the D. C. in the aforesaid proceedings. In the meantime the plaintiff filed the suit on 5.9.59, after serving notice to the tenant to quit the premises on the basis of the permission granted by the D. C. The defendant made an application on 5-10-1959 requesting the trial Court to stay the proceedings in the suit pending decision of the Special Civil Application No. 236 of 1959 by the High Court. This application was rejected. This application was rejected. The trial Court observed that it was open to the defendant to move the High Court for obtaining the stay order. The trial Court also remarked that it was open to the defendant to move the Court Country another application for staying the execution of the decree. if and when passed against him. The defendant made a second application on 2Q~1l.1959 for the, same relief which application also was rejected. Eventually On 28.1l.1959 the trial Court passed a decree for eviction and arrears of rent against the defendant. The defendant made an application of the High Court requesting that, he execution of the decree should be stayed., After, hearing both the parties, the High Court issued an order staying the execution of the decree. The special civil application was heard by the Division Bench comprising Mr. Justice The may be and Mr. Justice Patwardhan on 2Q.l.1U60. The application was allowed and the order of the D. C. granting permission to the plaintiff to terminate the tenancy was quashed. It may be mentioned that the decree passed in C. S. No. 291 of 1959 allowed the defendant time till 31-12-1959 for vacating the premises. The order of the High Court for staying the execution proceedings had come into operation on 29.12.1959, that is to say, two days prior to the date fixed in the decree for vacating possession by the defendant. 2. The plaintiff started execution proceedings on the basis .of the decree in C. S. No. 291 .of 1959 for recovery of possession of the suit premises. The defendant appeared and resisted the proceedings on the ground that the basis Of which the suit for eviction was lodged, was knocked out as a result .of the order passed by the High Court in Special Civil Application No. 236 .of 1909 with the result that the decree passed became a nullity and, in any case, un enforceable and unexecutable. This contention was overruled by the Courts below mainly on the ground that the question Could not be raised in the get outing Court which Could not go behind the decree passed. That is why the defendant has Come up in second appeal to this Court. 3. Before coming to a discussion .of the main Point urged in this appeal, it will be convenient to refer to the relevant provisions .of the C. P. and Berar. That is why the defendant has Come up in second appeal to this Court. 3. Before coming to a discussion .of the main Point urged in this appeal, it will be convenient to refer to the relevant provisions .of the C. P. and Berar. Regulation of Letting of Accommodation Act, 1946, and the C. P. and Berar Letting of Houses and Rent Control Order, 1940. Section 2 of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, provides that the State Government may, by notification, issue a general or special order regulating the letting and sub-letting of any accommcation. The Rent Control Order of 1949 was issued by the State Government by virtue of the powers conferred by section 2 of the Act. Section 7 provides that "no Civil Court, other than an officer or authority empowered under an order made or deemed to be made under section 2 shall have any jurisdiction by way of appeal or revision in respect of any order passed by any authority empowered in that behalf by any such order in respect of any matter specified in section 2." Clause 13(i) of the Bent Control Order, 1949, provides that no landlord shall, except with the prevision written permissision of the Controller, (a) give notice to a tenant determining the lease or (b) require the tenant to vacate the house at the termination of the tenancy by effiux of time. Sub-clause (2) provides for the making .of an. application in writing by the landlord seeking permission under sub-clause (i), Sub-clause (3) sets out the grounds on which the Rent Controller can grant pennission to the landlord to terminate the tenancy. 4. As stated above, the Rent Controller had rejected the application. The D. C. on appeal, agreed with the findings arrived at by the Rent Controller on all the points except the alleged requirement of the landlord to effect repairs. The D. C. thought it fit to grant permission to the landlord .on the ground that he required the premises for changing the frontage .of the house. The validity of this .order was challenged in the special civil application and the High Court: came to the conclusion that the D. C. acted with out jurisdiction in granting th6 permission which he was pleased to grant to the landlord under clause 13 (3) (vii) of the Rent Controller Order. The validity of this .order was challenged in the special civil application and the High Court: came to the conclusion that the D. C. acted with out jurisdiction in granting th6 permission which he was pleased to grant to the landlord under clause 13 (3) (vii) of the Rent Controller Order. The High Court Pointed out that the clause contemplated the termination of tenancy only on the ground that the landlord made out a case of essential repairs alterations which could not and made without the tenant vacating the premises. They also Pointed out that the ground on which the appeal was all owed by the D. C. did not fall within the ambit of clause 13 (3) (vii) .of the said Order. Accordingly they dismissed the landlords application for permission to serve a quit notice on the tenant. 5. Now, the very basis of the suit for eviction is that the tenancy is determined. No notice determining the tenancy could be issued without .obtaining the permission of the Rent Controller and the Rent Controller can grant such permission on the ground specified in the various clauses, to which reference has already been made. The permission granted by the D.C. in appeal has been set aside by the High Court. The result is that the parties are relegated to the former position, namely, that the tenancy had not been determined. If the tenancy is subsisting, no suit for eviction could be maintained. The result therefore, is that the suit for eviction was not only premature but the decree passed in C. S. No. 291 of 1959 was without jurisdiction. It is settled law that the contentions such as that the decree is without jurisdiction, or is a nullity (If is incapable of enforcement in execution, is always open to be taken and consists decree in execution proceedings. The lower Courts seemed to have ignored the at the time when the decree was passed, the D. C.s order granting permission to the plaintiff of terminate the tenancy was still valid. The decree, there for, could not have been challenged in appeal on that ground. The order of the High Court setting aside the permission was passed of 20-.1-1960, that Us to Il after the lapse of the period of limitation prescribed for preferring a W the District Court from the decree for eviction. The decree, there for, could not have been challenged in appeal on that ground. The order of the High Court setting aside the permission was passed of 20-.1-1960, that Us to Il after the lapse of the period of limitation prescribed for preferring a W the District Court from the decree for eviction. It is, therefore, idle to eon~ that it was open to the plaintiff to challenge the decree in the appeal on the happening of the subsequent event, namely, the passing of the order of the High Court setting aside the permission granted by the D. C. The plaintiff, for all practical purposes. had no remedy whatsoever except to appear before title Executing Court and contend that the decree had become in executable as. result of the order of the High Court, passed in Special Civil Application No. 236 of 1959. In fairness it must be conceded that the defendant did make honest endeavourer to avoid the complications by getting the suit stayed pending the decision of the Special Civil Application No. 236 of 1959 which was filed prior to the institution of the suit. Although therefore section 10 of the Code (if Civil Procedure did not, in terms, apply to the application made, still the principle underlying section 10 could have been extended to the application stay of the suit. Unfortunately that was not done and the suit proceeding and the stage of decree. Actually the trial Court observed that no harm would ensue if the suit was allowed to proceed to the stage of the decree. Whatever that may be the anomaly arising out of the passing of the decree on the basis of a suit the cause of action in which has abated; must be avoided at all costs. I, therefore, feel no hesitation in holding that the decree in C. S. No. 291 of 1959 has become void and unenforceable by reason of the order passed by the High Court in Special Civil Application No. 2360 and 1959. 6. There is another way of looking at this matter and it is the Pending, Special Civil Application No. 236 of 1959, the High Court had passed an interim order staying the execution of the decree. That was not order was conformed after hearing both the parties. 6. There is another way of looking at this matter and it is the Pending, Special Civil Application No. 236 of 1959, the High Court had passed an interim order staying the execution of the decree. That was not order was conformed after hearing both the parties. Although no reference had been made to this order for the final judgment, by reason of the fact that the application was allowed, the order for stay must be deemed to have been made absolute. Now, if the order for stay is valid, I am unable to understand how the decree-holder can seek the enforcement of the decree by starting the execution proceedings. 7. The result is that the appeal is allowed and the orders passed by the Courts below are set aside. In the peculiar circumstances of the case I direct the parties to bear their respective.