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PETITIONER: SATYADHYAN GHOSAL AND OTHERS

       Vs.

RESPONDENT: SM. DEORAJIN DEBI AND ANOTHER.

DATE OF JUDGMENT: 20/04/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1960 AIR  941            1960 SCR  (3) 590  CITATOR INFO :  R          1964 SC 993  (10,11)  RF         1967 SC1182  (8)  F          1969 SC 560  (13)  R          1969 SC 764  (7)  R          1972 SC1201  (15)  RF         1973 SC 313  (9)  R          1976 SC1645  (23)  R          1979 SC 102  (14)  R          1979 SC1436  (3)  RF         1981 SC 707  (5)  RF         1987 SC1145  (1)  E          1988 SC1531  (63)

ACT:        Remand  order-Interlocutory-Whether  can  be  challenged  in        appeal from final decree or order-Res judicata-The  Calcutta        Thika Tenancy Act (W.B. Act II of 1949), S. 28, The Calcutta        Thika  Tenancy (Amendment) Act, 1953 (W.B. Act VI of  1953),        S.  1(2) The Calcutta Thika Tenancy  (Amendment)  Ordinance,        1952 (West Bengal Ordinance No. XV of 152).

HEADNOTE: 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. 115 of the Code of 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 1053 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

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591 and  remanded the case to the Munsif for disposal  according to  law  whereupon the Munsif rescinded the decree.   On  an application  by  the landlord under s. 115 of  the  Code  of Civil  Procedure against the order of the Munsif  rescinding the  decree  the  High  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 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 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 merely  because they had not 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. Amecroonissa Begum, (1865) 10  M.I.A. 340 and Sheonath v. Ramnath, (1865) 10 M.I.A. 413, followed. Ramkripal Shukul v. Mst.  Rup Kuari, (1883) L.R. 11 I.A. 37, Bani Ram and Any. v. Nanhu Mal, (1884) L.R. 11 I.A. 181  and Hook  v.  Administrator General of Bengal and  Oys.,  (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, [196O] 3 S.C.R. 578 followed.

JUDGMENT:        CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 257/59.        Appeal  by special leave from the judgment and  order  dated        April 18, 1958, 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 Munsif Second Court, Alipore,  in        Misc.  Case No. 342/ 1949.        Nalini  Banjan  Bhattacharjee  and R. R.  Biswa,3,  for  the        appellants.        D.N. Mukherjee, for the respondents.        592        1960.   April 20.  The Judgment of the ’Court was  delivered        by        DAS  GUPTA,  J.-This appeal is by the landlords  who  having        obtained  a  decree  for  ejectment  against  the   tenants,        Deorajin Debi and her minor son, on February 10, 1949,  have        not  yet  been able to get possession in  execution  thereof        Soon  after the decree was made the Calcutta  Thika  Tenancy        Act, 1949, 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, 1949.  On September 9,        1949, an application was made by the tenants under S. 28  of

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      the Calcutta Thika Tenancy Act alleging that they were Thika        tenants  and  praying that the decree made against  them  on        February  2, 1949, may be rescinded.  This  Application  was        resisted by the landlords, the decree-holders, and on Novem-        er 12, 19519 the Munsif holding that the applicants were not        Thika  Tenants within the meaning of the Thika  Tenancy  Act        and  accordingly the decree was not liable to  be  rescinded        dismissed the application.        Against  this  order  the tenants moved the  High  Court  of        Calcutta  under S. 115 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, 1952, and the Calcutta Thika Tenancy (Amendment)        Act, 1953, had come into force on March 14, 1953.        The  1953  Amendment  Act inter alia omitted S.  28  of  the        original  Act.  In  order to decide  therefore  whether  the        application  under S. 28 was still alive the High Court  had        to  consider  the effect of S. 1 (2) of the  Calcutta  Thika        Tenancy Amendment Act which provided that the provisions  of        the Calcutta Thika Tenancy Act. 1949 as amended by the  1953        Act  shall  apply and be deemed to have  always  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        Tenancy Amendment Act did not affect the operation of S.  28        of  the  original Act to these proceedings and  disposed  of        these applications on the        593        basis  that s. 28 was applicable.  The High Court also  held        that  in view of the amended definition of the term "  Thika        tenant  "  and the evidence which had been recorded  by  the        Munsif  the petitioners must be found to be  Thika  tenants.        Accordingly  they allowed the application for revision,  set        aside the order of the Munsif by which he had dismissed  the        application  under  s.  28  and remanded  the  case  to  the        Munsif’s  Court for disposal in accordance with law.   After        remand  the  Munsif rescinded the  decree.   The  landlords’        application  under  s. 115 of the Code  of  Civil  Procedure        against  the Munsif’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 question  as  between        these parties was res judicata.        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 16,1956.        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 oil the date  of  the        commencement of the Calcutta Thika Tenancy Ordinance,  1952.        This question has been considered by us in Mahadeolal  Kano-        dia v. The Administrator-General of West Bengal (1) in which        judgment has been delivered to-day, wherein we have  decided        that  s.  28 of the original 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 barred        by  the principle of res judicata from raising  before  this        Court the question whether on the

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      (1)  [196O] 3 S.C.R. 578.        594        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.   He  has  relied  in  support  of   this        contention  on  the  decision of the Privy  Council  in  Ram        Kripal Shukul v. Muss Umat Rup Kuari (1).        The principle of res judicata is based on the need of giving        a finality to judicial decisions.  What it says is that once        a  res  is  judicata,  it  shall  not  be  adjudged   again.        Primarily  it applies as between past litigation and  future        litigation.  When a matter-whether on a question 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        because no appeal was taken to a higher court or because the        appeal was 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 embodied in relation to suits in s. 11  of  the        Code  of  Civil  Procedure; but even where s.  11  does  not        apply,  the  principle of res judicata has been  applied  by        courts for the purpose of achieving finality 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 was correct.        The  principle of res judicata applies also as  between  two        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 way 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 Maharaja Moheshur Singh v. The Bengal  Government        (5)  held that it is open to the appellate court  which  had        not  earlier  considered  the matter to  investigate  in  an        appeal from the final decision        (1) [1883] I.R 11 I.A 37.        (2) [1859]7 M.I.A. 283.        595        grievances of a party in respect of an interlocutory  order.        That case referred to the question of assessment of  revenue        on  lands.  On December 6, 1841, judgment was pronounced  by        the Special Commissioner to the effect that 3,513 beeghas 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 affirmed by another  Special        Commissioner  on  March 8, 1842.  On September 21,  1847,  a        petition  for review on behalf of the Government  of  Bengal        was   presented  to  another  Special  Commissioner.    That        petition  for  review was granted.  After  due  hearing  the        judgment of March 8, 1842, was reversed.  The question arose        before the Privy Council whether the review had been granted        in  conformity  with the Regulations existing at  that  time        with respect 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 grant the        review and that if the appellant deemed himself aggrieved by        it,  he ought to have appealed at the time, and that it  was        too  late  to  do so after a decision  had  been  pronounced

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      against him.        Dealing with this objection the Privy Council observed :-        " We are of opinion that this objection cannot be sustained.        We  are  not aware of any law or  regulation  prevailing  in        India which renders it imperative upon the suitor to  appeal        from  every  interlocutory order by which  be  may  conceive        himself aggrieved, under the penalty, if he does not so  do,        of  forfeiting for ever the benefit of the consideration  of        the  appellate  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 establishment        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,  We  believe        there have been        596        very  many  cases  before  this  Tribunal  in  which   their        Lordships  have  deemed  it  to be  their  duty  to  correct        erroneous  interlocutory  orders, though not  brought  under        their consideration until the whole cause had been  decided,        and brought hither by appeal for adjudication."        This view was re-affirmed by the Privy Council in Forbes  v.        Ameeroonissa Begum (1).  A decree for possession with  mesne        profits having been made against the defendant by the  Civil        Judge,  Purneeha,  on  December  18,  1834,  the   defendant        appealed  to  the Sadar Diwani Adalat.  That  Court  by  its        order dated January 22, 1857, 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  the  light  of  the        remarks  made by the Adalat.  After the case went  back  the        plaintiff  produced  accounts but the judge held  that  they        were  insufficient  and dismissed the suit.  An  appeal  was        taken  against that decree of dismissal to the Sadar  Diwani        Adalat  but the appeal was unsuccessful; a later prayer  for        review was also rejected.  On behalf of the appellant it was        contended  before  the Privy Council that the  Sadar  Diwani        Adalat  was wrong in requiring the appellant to produce  his        accounts.   In  order however that this  question  could  be        raised,  it  was necessary to decide, whether if  the  Sadar        Diwani Adalat was wrong in remanding the case for  re-trial,        the  appellant  was  bound  by that  decree  he  not  having        appealed  therefrom.  Their Lordships of the  Privy  Council        pointed  out that the order of remand was  an  interlocutory        order and that it did not purport to dispose of the case and        consequently  upon  the  principle laid down  by  the  Privy        Council  in  Maharaja Moheshur Singh v.  The  Gavernment  of        Bengal  (supra),  the  appellant  was  not  precluded   from        insisting that the remand for the production of the accounts        was erroneous or that the cause should have been decided in        (1)  [1865] 10 M.I.A. 340.        597        his  favour,  notwithstanding  the  non-production  of   the        accounts.  Their Lordships also mentioned the fact that  the        learned  judges of the Sadar Court also treated  the  latter        point  as still open to the appellant, when considering  his        appeal against the decree of dismissal 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(1).  That litigation was commenced Ramnath by a suit

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      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  Farigh-        kuttees  were  to  have  been registered  and  that  in  the        meantime they bad 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 division 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 not acquiesce inthis 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        (1)  [1865] 10 M.I.A. 413.        78        598        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        competent  to  the  Judicial Commissioner  except  with  the        consent  of  both parties, to vary, as he did vary,  by  his        order  of May 15, 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 15, 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

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      he was not bound to appeal against every interlocutory order        which was a step in the procedure that led up to the Award."        There  can be little doubt 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        599        parties  to challenge the correctness of the decision  on  a        matter  finally  decided  in a  past  litigation  makes  it,        important  that in the earlier litigation the decision  must        be final in the strict sense of the term.  When a court  has        decided  the  matter it is certainly final as  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        600        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  affecting  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.        591 applied to non-appealable orders only.  This  contention        was overruled by the Privy Council and that view was adopted        by the Legislature by changing the words " any such order  "        to  "  any order ". As regards the orders of remand  it  had

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      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 done  so.   The        second  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        601        the supreme Court against an order of remand.        There  appears to be no reason therefore why  the  appellant        should  be  precluded  from raising before  this  Court  the        question about the applicability of s. 28 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        (1) affects this matter at all.        That  was  a  case as regards  execution  proceedings.   The        decree  in  question bad 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 court 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.        Probyn’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. Probyn in proceedings        (1)  [1884] L.R. 11 I.A. 37.        602        between  the  same parties on the same  judgment,  the  High

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      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  (2).  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   from   become   res   judicata.        Interlocutory  judgments  which have the force of  a  decree        must  be  distinguished from other  interlocutory  judgments        which are a step        (1) (1884) L.R. 11 I.A. 181.        (2) (1921) L.R. 48 I.A. 187.        603        towards  the decision of the dispute between parties by  way        of  a  decree  or a final order.   Moheshur  Singh’,s  Case,        Forbes’  Case and Sheonath’s Case dealt  with  interlocutory        judgments which did not terminate the proceedings and led up        to  a decree or final order. 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

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      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.        (1) [1960] 3 S.C.R. 578.        604