B.C. Misra, J.
(1) This execution second appeal under section 100 read with section 47 of the Code of Civil Procedure has been filed by the tenant who is the defendant-judgment-debtor and is directed against the appellate order of the learned Senior Subordinate Judge dated 20th February, 1968, by which he affirmed the order of the Court of first instance dated 27th December, 1967, thereby finally rejecting all the objections of the judgment debtor against execution of the decree passed against him,
(2) The brief facts of the case are that on 10thApril. 1956, the decree-holder (respondent before me) filed a suit for eviction against the appellant before me in respect of a portion of house No. 2217 at Gali Qasim Jan, Delhi under the provisions of section 13 of the Delhi Rent Control Act of 1952, The suit was decreed on 30th April. 1957. The appellant before me filed an appeal against the said decree which was compromised and he was allowed 18 months' time to vacate the premises and the appeal was eventually dismissed as withdrawn. On the expiry of the said period, the appellant did not deliver possession of the premises in view of certain legal proceedings pending on the subject and eventually on 7th May, 1967, the decree-holder filed one application for execution of the decree by which he prayed for delivery of possession of the premises excepting one room in respect of which a temporary injunction .passed by another Court was operative. In reply to the execution application, the appellant before me filed objections on 27th September, 1967 against the execution which are specified in his objection petition. Later on the appellant filed another objection petition on 22nd October, 1967 in which the main plea taken up was that a notice of termination of the contractual tenancy had not been served on the tenant-appellant before the institution of the suit and the decree for eviction passed against him, was, thereforee, a nullity and void and could not be executed. All the objections of the appellant failed before the Court of first instance which dismissed both the objection petitions by its order dated 27th December, 1967 and dissatisfied with the same, the appellant before me filed an appeal before the Senior Subordinate Judge. It appears that the objections mentioned in the previous petition dated 27th September, 1967 were not pressed before the lower appellate court and the Court recorded the following finding :-
'MAQBOOLAhmed appellant has not challenged the findings of the learned trial court on his first application dated 27th September, 1967 in which he has alleged that the decree was inexecutable because the possession of certain premises had not been given and because the decree-bolder had been accepting rent deposited by him in the treasury and had not obtained permission from the Slum Areas against the lawful subtenants'.
The learned lower appellate Court further observed that even otherwise there was no force in the said grounds and the application had been rightly dismissed by the learned trial Court. It is obvious that the point with regard to notice that was raised by the objection petition dated 22nd October, 1967 also failed before the lower Appellate Court and the appeal was dismissed as mentioned above.
(3) The learned counsel for the appellant appearing before me desired to canvass the objections raised by him in the previous objection petition which had been given up before the lower appellate Court and I have not allowed him to raise the same. I fully endorse the observation of the lower appellate Court that even otherwise the said objections are wholly groundless. The learned counsel for the appellant has strongly submitted that as the original decree had been passed without service of a notice terminating the contractual tenancy, the decree was without jurisdiction and a nullity and so was not binding and, thereforee, the executing Court ought to have ignored the decree and it had no jurisdiction to execute the same. The learned counsel for the appellant has strongly relied upon Bath Mat v. Rameshwar Nath in which Hardayal Hardy and Deshpande, JJ. have considered the entire authorities bearing on the subject and came to the conclusion that it was essential that a contractual tenancy must be terminated according to law before institution of a suit for eviction or other legal proceedings for the purpose before the Rent Controller. In this judgment their lordships not only considered all the judgments of the Supreme Court hearing on the subject but also relied upon the Full Bench decision of the High Court of Punjab and Haryana reported as Bhaiya Ram v. Mahabir Parshad. However, their lordships of this Court further observed that 'the requirement of notice under section 106 is essentially for the benefit of the parties. The requirement is not mandatory as section 106 itself shows that the tenancy may be terminated in some other way. This is why this statutory right of the tenant must be held to be capable of being waived by him. If the conduct of the tenant in not insisting upon the notice has been acted on by the landlord then the landlord would be altering his position by relying upon the conduct of the tenant and the tenant would be estopped at a latter stage from resiling from his onduct and raising the objection of want of notice to the suit of the landord'. Their lordships also observed that this was a mixed question of law and fact and as such question could not be allowed to be raised for the first time in the Court of appeal. The learned counsel also relied upon an auhority of the High Court of Orissa reported as AbaniKumar Goswami v. Ramgopal Patwari where their lordships held that as no notice to quit had been served under section 106 of the Transfer of Property Act, the order of eviction was ultra vires, without jurisdiction, nullity and inexecutable. With respect, I am unable to agree with the authority of the High Court of Orissa In Pritam S.ngh v. Suraj Pershad Chief Justice Dua (as his lordship then was) referring to the aforesaid authority observed that whether or not on the facts of the case the said decision was correctly given, his lordship was wholly unable to hold that the order made by the Rent Controller or the Appellate Authority under the Delhi Rent Control Act, directing eviction of a tenant in the absence of a notice under section 106 of the Transfer of Property Act would be ultra virus or without jurisdiction or a nullity or that the execution of it could be ignored and the legal existence of it could be challenged in collateral suits.
(4) I am in respectful agreement with the observations of Dua, C.J., In connection with a notice under section 80 of the Code of Civil Procedure, the Privy Council had held that the provision was mandatory and did not admit of any exceptions but in Vellayan v. Madras Province the Privy Council held that although it was mandatory, it could be waived. Consequently, the benefit of a legal provision which can be waived by the party can scarcely render the judgment of the Court delivered contrary to the sa.d provision as without jurisdiction. Moreover, whether notice under section 106 had or had net been given and whether the tenancy was a contractual tenancy which was terminated in any of the other modes provided by section 111 of the Transfer of Property Act or whether the tenancy was statutory which did not require any termination by notice, are all questions of fact or at least mixed questions of law and fact which have to be determined on proper pleas raised by the parties and evidence led at the trial. If the tenant had not raisedt he plea at the trial of the suit, and had suffered a decree to be passed, he cannot be allowed to turn round at the stage of execution and say that the executing Court must re-examine the matter and find out that the contractual tenancy had not been terminated and so the decree passed by the Court was illegal and without jurisdiction. This is a question which the tenant ought to have raised at the trial of the suit and if he failed to raise it in law, he would be deemed to have waived it, and whether or not he waived it, this does not touch upon the legality of the decree or the jurisdictio of the Court to pass it.
(5) The learned counsel for the respondent tried to support his submission against the contentions of the appellant by submitting that the tenancy in this case was for a fixed period which had come to an end by afflux of time and no further notice to terminate the tenancy was required. Whether or not this is correct, I am of the view that it was not within the province of the executing Court to examine the matter and ignore the decree for eviction passed against the tenant.
(6) The learned counsel for the appellant has relied upon a judgment of the Supreme Court reported as Kiran Singh and others v. Chaman Paswal, where their Lordships held that if a decree had been passed without jurisdiction, it can be ignored in execution or may be ignored or attacked in anv collateral proceedings. There is no quarrel with the proposition of law propounded by their lordships of the Supreme Court but the same cannot be pressed into service in support of the contention of the learned counsel for the appellant. The Supreme Court in the case reported as Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, Civil Appeal No. 406 of 1967 decided on 11th March, 1970, considered the scope of section 42 of the Code of Civil Procedure and laid down the limits within which the excuting Court could go behind the decree. This was also a case of challenging the decree passed for eviction which was sought to be attacked in execution. Mr. Justice Shah, speaking for the Court, observed as follows :-
'ACourt executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or in facts Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still bin ling between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead on the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record : where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.'
(7) Applying the said dictum to the facts of the case, it would appear that the objection as to jurisdiction on the ground of lack of termination of contractual tenancy for want of notice does not appear on the face of the record and it would require examination of the question and as such the executing Court has no jurisdiction to entertain an objection as to its validity even on the ground of absence of jurisdiction. This is to take the case of the appellant to the hignesgnest, otherwise, I am of the view that passing of a decree for eviction, in the absence of evidence of termination of tenancy by a notice under section 106 of the Transfer of Property Act is a question of fact which can be waived and the same does not cause any inherent lack of jurisdiction in the Court to pass a decree,
(8) As a result, this appeal fails and is dismissed with costs.