1960 (4) TMI 49 - SUPREME COURT

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. - 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.