A decree passed on the basis of a suit, the cause of action in which has abated, is void and unenforceable in execution proceedings.

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. 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 null

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