lvfa/wdeo!nl

J(anodia

Adminislra lor •

Geut'ral of Wes! Rrngal

Dns G11/1!a J.

A/1ril 20.

------ ... ~

SUPREME COURT REPORTS [1960]

that the attention of the learned judges was not dra"n in the presenr case to that rule.

But quite apart from any rule, considerations of . judicial proprietv and decorum ought never 10 be ignored by courts in such matters.

On the merits, as \\'C have Found that the view of l:nr taken by the High Conrt in this case 1s correct,

the appeal is dismissed.

In view however of the uncertainty that was in the law as regards the applicability of s. ~8 to proceedings pending on the commencement of the Thika Tenancy Ordinance, I 'l:i~. we order that the parties "ill hear their own costs.

A jijJeal dismissed.

SATYADHYAN GHOSAL AND OTHERS

Sl\I. DEORAJIN DEBI AND ANOTHER. (P. H. GA.JEN!lRAGADKAR, K N. ,\T,1xcHoo and

K. C. DAS Gl'l'TA, JJ.)

Remand order-Interlocutory-Whether can be challenged in Tenancy Act (W.B. Act 11 of 1949), s. 28, The Calcutta Thika appeal from final or order-Res judicata-The Calcutta Thika Tenancy (Amendment) Act, 1953 (W.B. Act VI of 1953), s. 1(2) The Calcutta Thika Tenancy (Amendment) Ordinance, 1952 (West Beniial Ordinance No. XV of 1952).

The Calcutta Thika Tenancy Act, 1949, came into force before the appellant-landlords could obtain possession in execution of their decree for ejectment against the respondent-tenants.

Failing to get the decree set aside under 0. 9, r. 13 of the Code of Civil Procedure the tenants made an application under s. 28 of the said Act praying that the decree against them be set aside on the ground that they were Thika tenants, but the Munsif holding that they were not Thika tenants dismissed their application.

While an application by the tenants under s. llS of the Code o[ Civil Procedure against the Munsif's order was pending in the High Court the Calcutta Thika Tenancy Ordinance, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, came into force.

The 1953 Amendment Act omitted s. 28 of the Original Act.

The High Court after considering the effect of s. 1(2) of the Amendment Act held that it did not affect the operation of s. 28 of the Original Act which was applicable to these proceedings.

The High Court also found that the tenants were Thika Tenants

~ I

and remanded the case to the Munsif for disposal according to 1960 law whereupon the Munsif rescinded the decree.

On an appli- Sal) adl!J'"" Ghosal cation by the landlord under s. ll5 of the Code of Civil Procedure v. against the order of the Munsif rescinding the decree the High Sm. Deoraji11 Debi Court held that the question of applicability of s. 28 was res judicata. between the parties and could not be raised again before the High Court and dismissed the landlord's application.

On appeal by the landlord by special leave the respondent contended that the appellant was barred by the principle of res judicata from raising before this Court the question whether on the enactment of the Thika Tenancy Amendment Act, 1953, s. 28 of the Original Act survives or not in respect of proceedings pending on the date. of the commencement of the Thika Tenancy Ordinance, 1952: Held, that the appellants were not precluded from raising before this Court t_he question that s. 28 of the Original Thika Tenancy Act was not available to the tenants after the Thika Tenancy Arnendinent Act came into force merely because they had no.t: appealed from the High Court's order of remand.

An interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order.

Maharaja Mohesur Singh v. The Bengal Government, (1859) 7 M.I.A. 283; Forbes v. Ameeroonissa Begum, (1865) 10 M.1.A 340

an(\ Sheonath v. Ramnath, (1865) 10 M.I.A. 413, followed.

Rcimkripal Shukul v. Mst. RupKuari, (1883) L.R. 11 I.A. 37, Bani Ram and Anr. v. Nandu Mal,

(1884) L.R. 11 I.A. 181 and Hook v. Administrator General of Bengal and Ors. (1921) L.R. 48 I.A. 187, distinguished . . ''"' .

Section 28 of the Calcutta Thika Tenancy Act, 1949, after its omission by the amending Act was not available in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance of 1952. , Mahadeolal Kanodia v. The Administrator General of West Bengal, [1960] 3 S.C.R. 578 followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 257 /59.

Appeal by special leave from the judgment and order dated April 18, 19.58, of the Calcutta High Court

in Civil Rule No. 1487 of 1955, arising out of the judgment and order dated February 12, 1955, of the ,'\fonsif Second Court, Ali pore, in Misc. Case No. 342 / 1949. .

Nalini Ranjan Bhaltar:harjec and R. R. Biswas, for the appellants.

D. N. A1nhhcrjec, for the respondenls.

Safyadhyan Ghosal v.

Sm. Deorajin Debi

Das Gupta].

SUPREME GOUR 1' REPOH.TS [ 1960]

1%0. April 20.

The Judgment of u1e Court was delivered by

DAs GUPTA, J.--This appeal is by the landlords who haYing obtained a decree for cjectmcnt against the tenants, Deorajin Debi and her minor son, on February JO, 1949, have not yet been able to get possession in execution thereof.

Soon after the decree was made the Calculta Thika Tenancy Act, l!!-rn, came on the statute book.

On March 3, 1949, the tenants made an application under Or. 9, r. 13 of the Code of Civil Procedure for having the decree set aside.

That application was dismissed on .July 16, 191'.I.

On September 9, 1949, ; rn application was made by the tenants under s. 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and praving that the decree made against them on February 2, J !H9, may be rescinded.

Th is Application was resisted by the landlords, the decree-holders. and on N01ember 12, 195 l, the Munsif holding that the applicants were not Thika Tenants within the meaning of the Thika Tenancy Act and accordingly the decree ''""snot liable to be rescinded dismissed the application.

Against this order the tenants moved the High Coirt of Calcutta under s. I l :i of the Code of Civil Procedure. By the time the Revision Application was taken up for hearing the Calcutta Thika Tenancy Ordinance had come into force on October 21, I Y:i2, and the Calcutta Thika Tenancy (Amendment) Act, 1953, had come into force on l\larch 14, J<JG:J.

The 1953 Amendment Act inter alia omiLted s. 28 of the original Act. [n order to decide therefore whether the application under s. 28 was st ill aliYe the High Court had to consider the effect of s. I (2) of the Calcutta Thika Tenancy Amendment Act which provided that the provisions of the Calcutta Thika Tenancy Act, I !H9, as amended by I he I 9:i.~ Act shall apply a;1d be deem.ed to have ah;•ays applied to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952.

The learned judges of the High Court held that s. 1(2) of the Thika Tenancv Amendment Act did not affect the operation of s. '28 of the original Act to these proceedings and disposed of these applications on the

< (

basis that s. 28 was applicable. The High Court also 1!_6!!. held that in view of the amended definition of the Satyad!9 an chosal

term "Thika . tenant" and the evidence which had 0 D . ".. Db. b d d b I I . f I . . . . b ., m. eor<'Jt1l e 1 een recot e y t Ie l\' unsr tie •petitioners must e --· found to be Thika tenants. Accordingly they allowed Das Gupta J. the a:pplication for revi'sion, set aside the order of the Munsif by which he had dismissed the application under s. 28 and remanded the case to the Ivf unsif's Court for disposal in accordance with law.

After remand .the .l\Junsif rescinded the decree.

The landlords' application under s .. 11 :) of the Code of Civil

Procedure against the Mmisif's order was rejected by the High Court. The attempt of the landlords to raise before the High Court again the question of the applicability of s. 28 was unsuccessful, the learned judge who heard the matter in the High Court being of opinion that this quest.ion as between these parties was res. ji1dicata.

Against this order of the High . Court the present appeal has been preferred by the landlords on the strength of special . leave granted by this Court on November I G, I 956.

On behalf of the appellant it is urged that on a proper interpretation of s. 1(2) of the Calcutta Thika Tenancy Amendment Act, 1953, it should be held that s. 28 of the original Act cannot, after the amending Act came into force, be applied to any proceedings pending on the elate of the commencement of the Calcutta Thika Tenancy Ordinance, 1952.

This question has been considered by us in Mahadeolal Kanodia v. The Adrninistrator-Generol of West Bengal (1) in which judgment has been delivered to-day. wherein we have decided that s. 28 of the odginal Act is not applicable to such proceedings. If therefore this argument is available to the appellant the appeal will succeed as in that view of the law no relief under s. 28 of the original Act is available to the tenants and the order made by the Munsif on December 12, 1955, rescinding the decree for ejectment must be set aside. ·

The respondent contends :however that the appellant is bared by the principle of res judicata from raising before I his Conn the question whether on the


Sa{1•adf!.ran Ghosal

Sm. Deorajin J)ebi

Das Gupta J.

enactment of the Thika Tenancy Amendment Act, 1953, s. 28 of the original Act: survives or not in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance, I !):)2.

He bas relied in support of this contention on the decision of the Privy Council in Ram Krijial Shulwl v. Muss Urnat Rup Kuari (1).

The principle of res judicata is based on the need of g1vmg a finality Lo judicial decisions. \\'hat it says is that: once a res is jmlicala, it shall not be _adjudge<! again.

Primarily it applies as between past litigation and future litigatioi1. \\'hen a matter-whether on a quest.ion of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final. either became no appeal was taken to a higher court: or because the appeal "as dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is emboclied in relation lo suits in s. l l of the Code of Civil Procedure: but even where s. 11 docs not apply, the principle of res judicata has been applied by courts for the purpose of achieving linality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision "as correct.

The principle of res judicata applies also as between t\lo stages in the same litigation to this extent that a court:. whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one "ay and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again)

Dealing with this question almost a century ago the Privy Council in M11h11raja. Mohcshur Singh v.

The Be11g11l Govcrn1nenl (')held that it is open to the appeal- \ate court which had not earlier considered the matter to investigate in an appeal from the final decision

(l) [1883] l-.R. n J.1\. 37. (2f[l8o9] 7 M.JA 2H3.

3 S.C.R.

SUPREME COURT!REPORTS 595

grievances of. a party in -respect of ; in interlocutory 1960 order.

That c; ise referred . to the question of ; issess- Sa£iadhyan Ghosal ment of revenue on lands.

On December 6, 1841, Sm. Deorin Debi judgtnent was pronounced by the Special Commis- Das Gupta J. sioner to the effect that :l,.~ l !l becghas of land alone were assessable, and that the collections made by the Government on the other lands should be restored to the possessors. This judgment was ; iffirmed by another Special Commissioner on March 8, 1842.

On Septem- " ' ber 21, 1847, a petition for review on behalf of the ' Government of Bengal was presented to another Special. Commissioer.

1That pe'tition for revew was granted. 1 After due hearing the judgment of Maich 8,

18·12, 'was re, iersed.

TJ1e. gues.tiori. arose befre the Privy Council whether the review .had. been granted in cc; mformity with the Regu)ations existing at th;1t time with repect to the granting a , review.

It was urged however on behalf of the Government of Bengal that it was then too late to impugn the regularity of the proceeding to gran, t, the review and that if the appellant deemed himself aggrived by , i, t, he ought to

have~ .~1ppealt; d at the time, and that it was too late to do so after a clecis.ion, had been pronounced against him.

Dealing with observed:- ·

"I " this objection the Privy Council

"\Ve are of opinion that this objection cannot be sustained, \Ve are not aware of any lavv or regulation prevailing in India .which renders it imperative ' upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the ;:tppellate court..

No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious; administration . of justice than the establishme1it of a rule which would impose upon the suitor. the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on'-the other inflict upon his opponent similar calamities. vVe believe there have

S11.{f'tidk1a11 Cliosal

Sm Deorajiu Debi.

Das r:u/Jfa ].

been 1ery many cases before this Tribunal i11 ll"hich rheir Lordships ha1c deemed it to be their duty to correct: erroneous intcrlocutorv orders though not brought: under their consider,; t:ion un, til the whole cau.se had been decided, and brought hither by appeal for adjudicatiou." This view was rcaOirmed by the Privy Council in For/Jes v. Amccroonissa Begum (1).

A decree for possession with mesne profits havi1w been made .

I o against t 1c defendant: by the Civil Judge, Purnecha, on December 18, 18J4, the defendant appealed to the Sadar Diwani Adalat.

That Court by its order dared .January 22, 18:'>7, held that the Civil° Judge had been wrong in decreeing the mesne profits and further that the plaintiff was bound before he was entitled to have his conditional sale made absolute to render certain accounts.

Accordingly the Sadar Diwani Adalat: remanded the case in order that the judge might call upon the plaintiff for his accounts and then decide the case in t:he light of the remarks made by

the Adalat.

After t.he case went: back the plaint.iff produced accounts but the judge held that they were insu!Ticient :md dismissed the suit:.

An appeal w.as taken agaimt that decree of dismiss:1l to the Sa, br Diwani Adalat bur the appeal was unsuccessful; a later prayer for review w; is also rejected.

On behalf of the appellam it: was contended before the Privy Council that: the Sadar Diwani Adalat. "as wrong in rcquiri.ngthe appellant: to produce his accounts.

In order however that this question could be raised, it was necessary to decide, whether if the Sadar Diwani Acblat was wrong in remanding the case for retrial, the appellant was bound by that decree he not havi.ng appe; ilcd therefrom.

Their Lordships of the Privy Council pointed out that the order of remand was an

intcrloc11tory order and that it did not: purport lO dispose of the case and consequently upon the principle bid clown by the Privy Council in Afoharaja Moheshur

Singh v.

The Government of Bengal (supra), the appellant was not precluded from insisting that the remand for the production of the accounts was crro ncous or that the cause should ha1e been decided in

LI) [1865] IO M.[A. 340.

. '

his favour, notwithstanding the non-production of the 1!!_6.!!_ accounts.

Their Lordships also mentioned the fact Satyadh;•an Ghosal that the learned 1"t1dges of the Sadar Court also treats D v ... D b" . . . h m. eora1in e t ed the latter point as still open to the appellant, w en considering his appeal against the decree of dismissal Das Gupta J. passed after remand.

The principle laid down in Moheshur Singh's Case

(supra) was also acted upon by the Privy Council in Sheonath v. Ramnath ('). That litigation was commenced Ramnath by a suit in the Court of the Civil Judge, Lucknow, seeking a general account and partition.

The plaint mentioned the execution of some releases described as (Farighkuttees) but alleged that there had been no partition as between the parties as stated in them, that the partition was intended to take effect after the settlement of accounts when the Farighkuttees were to have been registered and that in the meantime they had remained with the appellant as incomplete instruments.

The Trial .Judge held however that the Farighkuttees had been executed on the footing of actual partition and diversion of the joint property, that these had been executed without taint of fraud and dismissed the suit. An appeal was taken to the Judicial Commissioner; he affirmed the Civil .Judge's decision on all points adding however that "there was one account between the parties still unadjusted, viz., the division of the outstandings which was left open at the time of the division of the assets." ' In this view he remanded the case to the Judge to decide what sum should be awarded to the plaintiff in satisfaction of all claims on this account and directed that if possible a decision should be obtained from the arbitrators previously appointed by the parties.

After remand the Civil Judge referred the question involved to certain arbitrators but the defendant did pot acquiesce in this Order and petitioned the .Judicial Commissioner against it, stating that he objected to the arbitrators to whom the Civil Judge had referred the case, and requesting that other arbitrators might be appointed.

This objection was overruled by the .Judicial Commissioner, _and the request was rejected.

Ultimately two separate decrees

(I) [1865J 10 M.I.A. 413.

14-6 SCI/ND/82

Satyadhyan Ghosal

Sm. Deorajin Debi

Das Gupta J.

were made by the Civil Judge, one on the 4th September as regards part of the claim and the other on 22nd December as regards another part.

On appeal both these decrees were affirmed by the Judicial Commissioner.

It was against this decision of the Judicial Commissioner that the defendant appealed to the Privy Council.

Two points were raised before the Privy Council.

The first was that it was not compettent to the Judicial Commissioner except with the consent of both parties to vary, as he did vary, bv his order of May 1.5, 1862, the rights of the parties under the Farighkuttees and to impose on the defendant an obligation of purchasing the plaintiff's interests in the outstandings on a rough estimate of its value; the other point raised was that the nomination of the particular arbitrator by the Judge without the consent and against the repeated protests of the appellant was altogether irregular, and that the award was therefore not binding upon him.

It has to be noticed that the defendant had not appealed against the .Judicial Commissioner's order of May 1.5,

1862, nor had he appealed against the Judicial Commissioner's later order rejecting the defendant's petition that he objected to the arbitrators to whom the Civil Judge bad referred the case and that other arbitrators might be selected by the parties.

In spite of these facts the Privy Council held that both these points were open to the appellant observing: -

"That both points are open to the appellant, although he has in terms appealed only against the final decision of the Civil Judge and the confirmation of it by the Judicial Commissioner, is, we think, established by the case of Moheshur Singh v. The Government of Bengal. The appeal. is, in effect, to set aside an Award which the appellant contends is not binding upon him.

And in order to do this he was not bound to appeal against every interlocutory order which was a step in t_he procedure that led up to the Award." There can be little doublt about the salutary effect of the rule as laid down in the above cases on the ' ' administration of justice.

The very fact that in future litigation it will not be open to either of the

.>.

parties to challenge the correctness of the decision on 196~ a matter finally decided in a past litigation makes it Satyadhyan Ghasal important that in the earlier litigation the decision s D v ... D b' · m. eora1in e i must be final m the stnct sense of the term.

When a court has decided the matter it is certainly final as Das Gupta J. regards that court. Should it always be treated as final in later stages of the proceeding in a higher court which had not considered it at all' merely on the ground that no appeal lay or no appeal was preferred?

As was pointed out by the Privy Council in Moheshur Singh's Case (supra) the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running .to the higher courts for redress of the

.. grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the appeal court at all.

Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made.

It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a .decree it will be open to a party to challenge the. correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case.

In the Code of 1859 s. 363 after laying down that no appeal shall lie from any order passed in the course of a suit and relating thereto prior to a decree provided "but if the decree be appealed against, any error, defect or irregularity in any such order affecting the merits of the case or the jurisdiction of the court may be set forth as a ground of objection in the memorandum of appeal."

When the Code of 1877 made provisions in Chapter 43 for appeal against certain orders, s. 591 thereof

Satyadhyan Ghosal v.

Sm. Deorajin Debi

Das Gupta J.

provided "Except as provided in this chapter, no appeal shall lie from any order passed by any court on the exercise of its original or appellate jurisdiction" and went on to say "but if any decree be appealed against any error, defect or irregularity in any such order a!Iesting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal." The position remained the same in the Code of 1882.

The present Code in its .105th section uses practically the same phraseology except that the word "any such order" has been substituted by "any order" and an additional provision has been made in the second sub-section in respect of orders of remand.

The expression "such order" in s. 591 gave rise to a contention in some cases before the Privy Council that s. 59 I applied to non-appealable orders only.

This contention was overruled by the Privy Council and that view was adopted by the Legislatureby changing the words "any such order" to "any order".

As regards the orders of remand it had been held that under s. 591 of the Code a party aggrieved by an order of remand could object to its validity in an appeal against the final decree, though he might have appealed against the order under s. .588 and had not clone so.

The 5econd sub-section of s. 105 precludes an appellant from taking, on an appeal from the final decree, any objection that might have been urged by way of appeal from an order of remand.

It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.

A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders.

The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason

·~

being that no appeal lay to the Privy Council or lies to . 1960 the Supreme Court against an order of remand.

Satyadhyan Ghtisal There appears to be no reason therefore why the v. appellant should be precluded from raising before this Sm. Dearajin.Dei>i Court the question about the applicability of s. 28 Das GuptaJ. merely because he had not appealed from the High Court's order of remand, taking the view against him that the section was applicable; We are unable to agree with the learned Advocate that the decision of the Privy Council in Ram Kirpal Shukul' s Case (') affects this matter at all. .

That was a case as regards execution proceedings.

The decree in question had been made in 1862.

In execution proceedings the question arose whether or not. the decree awarded mesne profits.

The District Judge, Mr. Probyn, decided this question in the affirmative.

In 1879 the decree had not yet been executed and execution proceedings were pending. The question was raised again before the Executing Court whether the decree allowed mesne profits.

That court held that he was bound by the decision of Mr. Probyn that the decree did allow mesne profits and ordered the execution to proceed on that basis. His order was affirmed on appeal.

The judgment-debtor then appealed to the High Court. Before that could it was urged on behalf of the judgment-debtor that the law of res judicata did not apply to proceeding. in execution of a decree.

The Full Bench of the High Court to which the Division Bench referred this question answered the question in the negative and then the . Division Bench ordered, being of opinion that Mr. Probyn's view was wrong, that the appeal be decreed and execution of decree in respect of mesne profits be disallowed.

The Privy Council after stating that Mr. Probyri.'s order was an interlocutory judgment stressed the fact it had never been reversed or set aside, and said that the fact that second appeal did not lie to the High Court was of no consequence, for if no such appeal did lie the judgment was final and if an appeal did lie and none was preferred the judgment was equally binding upon

the parties.

In the opinion of the Judicial Committee the' learned Subordinate Judge and the Judge were bound by the order of Mr. Proby1i in proceedings

(I) [1884] L.R.'il I.A. 37,

Satyadhyan Ghosal v.

Sm, Deorajin Debi

Das Gupta J.

between the same parties on the same judgment, the High Court was bound by it and so were their Lordships in adjudicating between the same parties.

Ram Kirpal Shukul's Case (supra) was followed by the Council in Bani Ram v. Nanhu Mal (1) which also related Privy to an order made in execution proceedings.

It was followed again by the Privy Council itself in Hook v. Administrator-General of Bengal (').

The facts in Hook's Case were that in an administration suit the High Court had held that certain conditions of a will had not been fulfilled and there was not an intestacy as to the surplus income, rejecting a contention on behalf of the next of kin that the gift over was invalid, as creating a perpetuity; the decree provided that the determination of the destination of the income or corpus of the fund upon the death of the annuitant should be deferred until after that event.

In further proceedings in the suit after the annuitant's death the next of kin contended that under the reservation in the decree they were entitled again to raise the contention that the gift over was invalid. The Privy Council held that the validity of the gift over was res judicata.

It will be noticed that in all these three cases, viz., Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case, the previous decision which was found to be res judicata was part of a decree.

Therefore though in form the later proceeding in which the question was sought to be raised again was a continuation of the previous proceeding, it was in substance, an independent subsequent proceeding.

The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpal's Case and Bani Ram's Case, such a decision being a decree really terminated the previous proceedings.

The fact therefore that the Privy Council in Ram Kirpal Shukul's Case described Mr. Probyn's order as an "interlocutory judgment" does not justify the learned counsel's contention that all kinds of interlocutory judgments not appealed Jrom become res judicata.

Interlocutory judgments which have the force of a decree must be distingui:shed from other interlocutory judgments which are a step

(1) (1884) L.R. 11 I.A. 181.

(2) (1921) L.R. 48 I.A. 187.

• ..

r '

-.J

towards the decision of the dispute between parties by 196~ way of a decree or a final order.

Moheshur Singh's Sal)adhyan Ghosal Case, Forbes' Case and Sheonath's Case dealt with s D v ... Db' . . h m. eoraJtn e i interlocutory judgments which did not termmate t e proceedings and led up to a decree or final order.

Das Gupta].

Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case deal with judgments which though called interlocutory, had, in effect, terminated the previous proceedings.

These cases are therefore of no assistance to the learned counsel for the respondent in his argument that the order of remand made by the High Court not having been appealed from to this Court the correctness of that order cannot be challenged now.

In our opinion the order of remand was an interlocutory judgment which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order. We hold therefore that the appellant is not precluded from raising before us the question that s. 28 of the original Thika Tenancy Act was not available to the tenants after the Thika Tenancy Amendment Act came into force.

On this question we have already decided, as already indicated above, in Mahadeolal Kanodia':S Case (1) that section 28 after its omission by the Amending Act is not available in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance of 1952.

We hold therefore that the view taken by the High Court in this matter was wrong and that the Munsif acted without jurisdiction in rescinding the ejectment decree.

We accordingly allow the appeal, set aside the order of the High Court appealed from and also the order of the Munsif dated February 12, 1955, by which he rescinded the ejectment decree.

In consideration of the fact that the state of the law as regards the applicability of s. 28 .was uncertain, we order that the parties will bear their own costs in this Court.

Appeal allowed

(I) [1960) 3 S.C.R. 573.