SITA RAM AGARWALLA Vs. JAMUNADAS AGARWALLA

JUDGEMENT

(1.) The Judgment -debtors are the appellants. The appeal is directed against the order of the executing court, rejecting their objection under Section 47 of the Civil Procedure Code. The decree under execution is one of eviction and the decree -holder has applied for delivery of possession through court.

(2.) The main contention of the learned Counsel before me is that the decree is a nullity and as such it can be ignored by the executing court. The decree is characterised as nullity on the ground that the suit was institute ed by the landlord under the provisions of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, without determining the tenancy by a proper notice to quit, which, as held by the majority of the Judges of the Full Bench in the case of Niranjan Pal v. Chaitanyalal Ghosh , is a pre -condition to the institution of such a suit for eviction.

(3.) It must be stated at the out set that this point is not open to the appellants at this stage. It was not raised in either of the two courts below and there is no material before this Court to determine whether or nor the suit for eviction was preceded by a valid notice to quit. Whether such a valid notice had been served or not is a mixed question of law and fact and, in the absence of requisite finding of fact, it is not possible for this Court in Second Appeal to decide such a question raised for the first time before it.