LexSATYADHYAN GHOSAL AND OTHERS versus SM. DEORAJIN DEBI AND ANOTHER.
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1960 lvfa/wdeo!nl J(anodia v. Adminislra lor • Geut'ral of Wes! Rrngal Dns G11/1!a J. 1960 A/1ril 20. ------ ... ~ 590 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 v. 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 \ 3 S.C.R. SUPREME COURT REPORTS 591 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 judi- cata. 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 enact- ment 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. Rup·Kuari, (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 O
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