JUDGMENT - ASHOK AGARWAL, J.:---Whether an obstructionist who fails to establish an independent right to possession can resist execution on the ground that the decree under execution is a nullity is the main question which arises for determination in this petition. 2. The premises in dispute consist of block D, situate on the 3rd floor of Contractor Building at Bai Awabai Kashinath Road, Bombay 400 034. The petitioners are the owners whereas one Nadirshaw P. Bathena was the tenant on a rent of Rs. 57.30 Ps. per month. The said Nadirshaw died on 15th November, 1971 leaving behind him Respondent Nos. 1 to 4 as his heirs and legal representatives. During the life time of Nadirshaw, the petitioners by a notice dated 6th November, 1969 terminated his tenancy. On 12th October, 1971 the said Nadirshaw permitted respondent Nos. 5 and 6 who are husband and wife to occupy a portion of the aforesaid premises viz. two rooms and the common user of the kitchen and W.C. The said licence was for a period of eleven months. The said licence was on a payment of compensation of Rs.325/- per month. The said Nadirshaw, as already pointed out, expired on 15th November, 1971. Hence, there was no occasion for the licence being extended after 11th September, 1971. The respondent Nos. 5 and 6 continued in use and occupation of the suit premises. On 5th February, 1972 the petitioners filed against respondent Nos. 1 to 4 in the Court of Small Causes, Bombay, under section 41 of the Presidency Small Causes Courts Act, Ejection Application No. 88/E of 1972. Respondent Nos.1 to 4 resisted the said application on grounds, inter alia, that the Court had no jurisdiction under section 41 of the Presidency Small Causes Court Act. On 14th July, 1978 an ex-parte order was passed against respondent Nos. 1 to 4 directing them to vacate and hand over possession by 31st August, 1978. The said decree was put in execution wherein respondent Nos. 5 and 6, on 12th September, 1978, obstructed the delivery of possession. The petitioners, therefore, took out the present Obstructionist Notice No. 181 of 1978 for removal of the obstruction. 3. The respondent Nos. 1 to 4 directing them to vacate and hand over possession by 31st August, 1978. The said decree was put in execution wherein respondent Nos. 5 and 6, on 12th September, 1978, obstructed the delivery of possession. The petitioners, therefore, took out the present Obstructionist Notice No. 181 of 1978 for removal of the obstruction. 3. The respondent Nos. 5 and 6 resisted the said notice by raising two contentions : (i) That they are sub-tenants or protected licensees under the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 ; and- (ii) That the order under execution passed under section 41 of the Presidency Small Causes Court Act was without jurisdiction and is nullity. 4. The parties did not lead oral evidence but were content with proceeding with the trial on the strength of the affidavits. By a judgement and order dated 18th February, 1982 the trial Court held that the Respondent No. 5 and 6 were not the lawful sub-tenants or protected licensees under the Bombay Rent Act. It, however, held that the order under execution was a nullity. Consequent upon the said findings, the Obstructionist Notice was discharged with no order as to costs. 5. Being aggrieved by the aforesaid judgement and order, the petitioners preferred in the Appellate Court of the Court of Small Causes, Bombay, Appeal No. 190 of 1982. By judgement and order dated 29th November, 1983 the Appellate Court held that the respondent Nos. 5 and 6 are protected licensees and were entitled to protection under the Rent Act. It further held that the order under execution was a nullity. Consequent upon the said findings, the appeal of the petitioners was dismissed with no order to costs. Being aggrieved, the petitioners have preferred the present petition. 6. Shri Rane, the learned Advocate appearing on behalf of the petitioners decree holders submitted that the lower Appellate Court has erred in holding that respondent Nos. 5 and 6 are protected licensees. He drew my attention to the letter date 12th October, 1971 addressed by respondent No. 5 to Nadirsha Pestonji Bhathena by which a licence was created in favour of Respondent Nos. 5 and 6. He pointed out that the said licence permitted respondent Nos. 4 and 5 to occupy along with members of their family, two rooms with common use of the kitchen in the aforesaid premises. 5 and 6. He pointed out that the said licence permitted respondent Nos. 4 and 5 to occupy along with members of their family, two rooms with common use of the kitchen in the aforesaid premises. The said licence was to commence from 12th October, 1971 and was to automatically stand terminated on 11th September, 1972. Hence, the said licence stood terminated on 11th September, 1971 by efflux of time. Reliance was placed on Section 62(c) of the Easements Act which provides that a licence is deemed to be revoked when it has been granted for a limited period on the expiry of the said period. Shri Rane further pointed out that the licensees whose possession is protected are only those who have a subsisting licence on 1st February, 1973. On that day, the licensor Nadirshaw had already expired and the licence created by him was deemed to have been revoked by efflux of time. Respondent Nos. 5 and 6 were thus not entitled to protection from eviction. 7. In my judgement, there is considerable merit in the above contentions advanced by Shri Rane. The leave and licence which respondent Nos. 5 and 6 have set up is evidenced by the letter date 12th October, 1971 addressed by respondent No. 5 to Nadirshaw. Clause 12 of the said letter specifically provides :- "This Agreement will start from 12th October, 1971 and will stand automatically determined on 11th September, 1972." It is thus abundantly clear that the said licence expired on 11th September, 1972 by afflux of time. It is not the case of respondent Nos. 5 and 6 that the said licence was renewed by respondent nos. 1 to 4 who were the heirs and legal representatives of Nadirshaw. Since there was no subsisting licence on 1st February, 1973, respondent Nos. 5 and 6 cannot claim protection under section 15-A of the Rent Act. 8. The learned Judges of the Appellate Court, however, were pursuaded to observe :- "Admittedly said licence was continued by judgement-debtors/respondents after the death of deceased Bhatena. The licence was not revoked at any time. After the death of the deceased Bhatena, the judgement-debtors acquired the right of tenancy protected under the Bombay Rent Act." In my judgement, the learned Judges of the Appellate Court have erred in making the said observations. The licence was not revoked at any time. After the death of the deceased Bhatena, the judgement-debtors acquired the right of tenancy protected under the Bombay Rent Act." In my judgement, the learned Judges of the Appellate Court have erred in making the said observations. It was at no stage admitted that the said licence was continued by the judgement-debtors i.e. respondents. In fact that was not even the case of the respondent Nos. 5 and 6. Though the licence was not revoked by any overt act either on the part of the licensor Nadirshaw or by respondent Nos. 1 to 4, the same stood revoked by efflux of time. Hence, there can arise no question of respondent Nos. 5 and 6 being protected under the Rent Act. The finding of the Appellate Court that the respondent Nos. 5 and 6 are protected licensees is erroneous and is liable to be set aside. 9. The next and the only surviving question that survives for determination is the one which I have mentioned at the commencement of this judgement viz. whether the order under execution is a nullity and whether respondent Nos. 5 and 6 who have been held not to possess an independent right to possession can set up the plea that the said decree cannot be executed against them. Shri Rane, the learned advocate appearing on behalf of the petitioners contended that after the amendment by Act 104 of 1976 all questions arising between the parties to a proceeding in an application for removal of obstruction are required to be determined by the Court dealing with the said application and not to be a separate suit. He contended that the present proceeding is a lis between the petitioners and respondent Nos. 5 and 6. The petitioners have claimed possession and the respondent Nos 5 and 6 have claimed protection of the Rent Act. It has now been held that respondent Nos 5 and 6 are not protected by the Rent Act. Hence , the only course open for the executing Court is to pass an order for removal of the obstructionists. Shri Rane emphasised that the right of respondent Nos 5 and 6 to prove their independent right was in the present execution proceedings and the same cannot be done by way of an independent suit. Hence , the only course open for the executing Court is to pass an order for removal of the obstructionists. Shri Rane emphasised that the right of respondent Nos 5 and 6 to prove their independent right was in the present execution proceedings and the same cannot be done by way of an independent suit. Respondent Nos 5 and 6 having failed to prove the said right were bound to deliver possession. 10. In my judgement, there is no merit in the above contention. The order under execution is passed under section 41 of the Presidency Small Causes Court Act. The same was passed against respondent Nos 1 to 4 who are the heirs and legal representatives of Nadirshaw. The said Nadirshaw was undisputedly the tenant in respect of the said premises. On his death, respondent Nos. 1 to 4 would succeed to the said tenancy. Respondent Nos. 1 to 4 were therefore, the tenants of the petitioners in respect of the said premises. Once there exists a relationship of landlord and tenant between the petitioners and respondent Nos. 1 to 4 the provisions of the Rent Act will apply and it is only the court established under the said Act which will have the jurisdiction to entertain and try the suit. Consequently, the application filed under section 41 of the Presidency Small Causes Court Act was without jurisdiction. It is true that the respondent Nos. 1 to 4 had resisted the said application on grounds, inter alia, that the proceedings under section 41 were without jurisdiction. It is also true that an ex-parte order for possession was passed on 14th July, 1978. Even if this be the position, the said order if it is found to be without jurisdiction would amount to a nullity. The said order can be resisted by any party at any time and at any stage whenever the same is put in execution. 11. Rule 97 of Order 21 of the Code of Civil Procedure, in so far as is relevant for the present discussion, provides that : "Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make and application to the Court complaining of such resistance or obstruction." 12. In my view, the phrase "holder of a decree for possession" which is contemplated under the above Rule postulates that he has to be a holder of a valid decree for possession. The said phrase cannot include a person who is a holder of a decree which is a nullity. Nullity is not a decree at all. Hence, before a decree holder can call upon a court to hear his complaint in regard to the obstruction to the execution of his decree by a person who has no independent right to possession, he has first to qualify having the status of being the holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a decree which is capable of being put in execution. It follows that an obstructionist can always contend that the decree under execution is a nullity and , therefore, the courts are refrained from entertaining an application for removal of the obstruction. Once such a contention is raised, it will be for the decree holder to establish that the decree which he has put in execution is a valid decree and the same is capable of being executed. In my view, the above contention can be raised by an obstructionist even if he fails to establish that he has an independent right to possession. The holding of a valid decree is a sine qua non for initiation of proceedings under Rules 97 to 101 of Order XXI of the Code of Civil Procedure. If the decree under execution is a nullity, the decree holder will not be head to say that the obstructionist is illegally resisting its execution. 13. Prior to the amendment of 1976 it was open to an obstructionist like the respondent Nos. 5 and 6 to file a separate suit and contend that the decree under execution is a nullity and is not liable to be executed as against him. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure. Rule 101 provides as under:- "All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions." The bracketed portion of the above Rule would show that the questions relating to right, title or interest in the property are some of the questions which are required to be determined in the execution proceedings. This is apparent from the words "all questions including". Hence, what follows after the said phrase are merely illustrative and not exhaustive. Hence, the question whether the decree under execution is a valid decree or a nullity would fall under the phrase "all questions" arising between the parties to the proceeding of an application under Rule 97 and the said question would be required under the above rule be decided by the executing Court. Hence, the provisions of Rules 97 to 101 of Order 21, if properly construed cannot be held to mean that once a decree is put in execution, it can only be resisted by an obstructionist who has an independent right to possess. Such a construction would do violence to the term "holder of a decree for possession." Such a phrase in my view, cannot include a holder of an invalid decree for possession. If this be so, the decree holder has to first establish that the decree which he has put in execution is a valid decree for possession. Consequently, it follows that it will be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he cannot establish his independent right to possession. 14. Consequently, it follows that it will be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he cannot establish his independent right to possession. 14. Shri Rane, the learned advocate appearing on behalf of the petitioners next contended that the licence which was created in favour of respondent Nos. 5 and 6 was only in respect of two rooms and a common user of the kitchen. The premises in dispute are a larger premises of which the licensed premises form a part. The respondent Nos. 5 and 6 can, therefore, claim protection only in regard to the premises which were the subject matter of the licence. They cannot successfully resist handing over the possession in respect of the portion which was not the subject matter of the agreement of leave and licence. The respondent Nos. 5 and 6 are liable to be removed from the portion of the premises of which they are not the licensees. 15. In my judgement, the above contention is devoid of merit in view of my finding that the decree under execution is a nullity and is, therefore, not liable to executed at all. In fact I have found that respondent Nos. 5 and 6 have failed to establish that there was a subsisting licence in their favour as on 1st February, 1973. Consequently, they do not possess an independent right to possession in respect of any portion of the premises. Even on the said premise, the decree being a nullity cannot be put in execution for the purpose of removing the obstruction set up by the respondent Nos. 5 and 6. 16. In this view of the matter, I am inclined to hold that the decree being a nullity is not liable to be put in execution. The findings of both the lower courts in that behalf are liable to be affirmed, though on grounds different from the ones that had appealed to the learned Judges of the lower courts. 17. In the result, I find the present petition devoid of merit and the same is dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs. Petition dismissed. -----