TMI Blog1960 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ee or order. - Civil Appeal No. 257/59. - - - Dated:- 20-4-1960 - GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N. JJJ. Nalini Banjan Bhattacharjee and R. R. Biswa,3, for the appellants. D.N. Mukherjee, for the respondents. JUDGMENT: 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 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Act alleging that they were Thika tenants and praying that the decree made against them on February 2, 1949, may be rescinded.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 November 12, 19519 the Munsif holding that the applicants were not Thika Tenants withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ([196O] 3 S.C.R. 578.) 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 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 Kripa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner 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 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 forever the benefit of the consideration of the appellate court. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 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([1865] 10 M.I.A. 413.). 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 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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((1884) L.R. 11 I.A. 181.) 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 ((1921) L.R. 48 I.A. 187.). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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