Interlocutory remand orders and omitted tenancy remedies can still be challenged or displaced in pending proceedings.

An interlocutory remand order that does not finally terminate the proceedings may be challenged in an appeal from the final order, and it does not attract res judicata in the same way as a final decree or order. The Court also held that section 28 of the Calcutta Thika Tenancy Act, 1949 was not available in pending proceedings after the amending law took effect, so the statutory rescission procedure could not continue to govern those matters. On that basis, the order rescinding the ejectment decree could not stand, the High Court's view was rejected, and the landlord's appeal succeeded.

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Issues: (i) Whether an interlocutory order of remand, not separately appealed from, could be challenged in an appeal against the final order; (ii) whether section 28 of the Calcutta Thika Tenancy Act, 1949 survived after the Calcutta Thika Tenancy (Amendment) Act, 1953 in proceedings pending on the date of commencement of the 1952 Ordinance; and (iii) whether the earlier remand order barred reconsideration of the section 28 question by res judicata.

Issue (i): Whether an interlocutory order of remand, not separately appealed from, could be challenged in an appeal against the final order.

Analysis: The governing principle was that interlocutory orders which do not terminate the proceedings may be assailed in an appeal from the final decree or final order. The special rule in the Code of Civil Procedure restricting objections to remand orders did not control this case in the appellate stage before the Supreme Court. The earlier authorities distinguishing between interlocutory orders that merely advance the proceeding and orders having the force of a decree were applied to hold that the remand order here remained open to challenge.

Conclusion: The remand order could be challenged in the present appeal, and the appellant was not barred from questioning its correctness.

Issue (ii): Whether section 28 of the Calcutta Thika Tenancy Act, 1949 survived after the Calcutta Thika Tenancy (Amendment) Act, 1953 in proceedings pending on the date of commencement of the 1952 Ordinance.

Analysis: The earlier decision relied on by the High Court had been reconsidered in a companion decision delivered the same day. On that interpretation, section 28 of the original Act was not available in respect of proceedings pending on the date when the Ordinance commenced. Once the amending law took effect, the rescission procedure under the omitted provision could not continue to govern such pending matters.

Conclusion: Section 28 was not available to the tenants, and the order rescinding the ejectment decree could not stand.

Issue (iii): Whether the earlier remand order barred reconsideration of the section 28 question by res judicata.

Analysis: Res judicata applies where a matter has been finally decided so as to terminate the relevant stage of litigation. A distinction was drawn between decisions embodied in decrees or final orders and interlocutory judgments that are only steps towards the final disposal. The remand order here did not finally terminate the proceedings and therefore did not attract the bar in the manner contended for.

Conclusion: The doctrine of res judicata did not prevent reconsideration of the section 28 issue.

Final Conclusion: The High Court's view was rejected, the decree rescinding ejectment was set aside, and the landlord's appeal succeeded because the tenants could not invoke the omitted statutory remedy in the pending proceedings.

Ratio Decidendi: An interlocutory order that does not finally terminate the proceedings may be challenged in an appeal from the final order, and a statutory remedy omitted by amendment cannot be invoked in pending proceedings unless the amending law clearly preserves it.

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