Satyadhyan Ghosal And Others vs Sm. Deorajin Debi And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 257/59

Decision Date: 20 April 1960

Coram: K.C. Das Gupta, P.B. Gajendragadkar, K.N. Wanchoo

In the matter titled Satyadhyan Ghosal and Others versus Smt. Deorajin Debi and Another, the Supreme Court of India delivered its judgment on 20 April 1960. The judgment was authored by Justice K. C. Das Gupta, who was joined by Justices P. B. Gajendragadkar and K. N. Wanchoo as the bench hearing the case. The citation of the decision appears in the All India Reporter as 1960 AIR 941 and in the Supreme Court Reports as 1960 SCR (3) 590, with subsequent citations recorded in later law reports. The case concerned an appeal by a group of landlord petitioners against a tenant respondent, and it dealt with statutory interpretation of the Calcutta Thika Tenancy Act of 1949, its amendment in 1953, and the related 1952 ordinance.

According to the headnote, the Calcutta Thika Tenancy Act, 1949, became operative before the landlords were able to enforce a decree for ejectment against the tenants. The tenants, unable to overturn the decree under Order 9, Rule 13 of the Code of Civil Procedure, filed an application under Section 28 of the 1949 Act seeking its set‑aside on the ground that they were Thika tenants. The Munsif, however, held that the tenants did not qualify as Thika tenants and dismissed the application. While the tenants pursued a petition under Section 115 of the Code of Civil Procedure challenging the Munsif’s order, the Calcutta Thika Tenancy Ordinance of 1952 and the Calcutta Thika Tenancy (Amendment) Act of 1953 came into force. The 1953 Amendment omitted Section 28 of the original Act.

The High Court examined the effect of Section 1(2) of the Amendment Act and concluded that the omission did not invalidate the operation of Section 28 for the pending proceedings. The High Court further held that the tenants were indeed Thika tenants, remanded the matter to the Munsif for appropriate disposal, and the Munsif subsequently rescinded the original decree. The landlords then filed an application under Section 115 of the Code of Civil Procedure challenging the rescission order. The High Court ruled that the question of the applicability of Section 28 had become res judicata between the parties and could not be re‑litigated before the High Court, and it dismissed the landlords’ application.

Upon the landlords’ special leave appeal to this Court, the tenant respondents contended that the landlords were barred by the principle of res judicata from raising before this Court the issue of whether, upon the enactment of the Thika Tenancy Amendment Act, 1953, Section 28 of the original Act continued to survive with respect to proceedings that were pending on the date the 1952 Ordinance commenced.

The Court considered whether Section 28 of the Original Thika Tenancy Act continued to apply to proceedings that were already pending at the moment the Thika Tenancy Ordinance of 1952 came into force. It held that the appellants were not barred from raising before this Court the proposition that Section 28 of the Original Thika Tenancy Act could no longer be invoked by the tenants after the Thika Tenancy Amendment Act had become operative, merely because the appellants had not filed an appeal against the High Court’s order of remand. In other words, the failure to appeal a remand order did not extinguish the right to challenge the availability of Section 28 in a later appeal that addressed the final decree or order. The Court emphasized that an interlocutory order which does not terminate the suit and which has not been appealed—either because no statutory right of appeal existed or because a right of appeal existed but was not exercised—may still be subject to scrutiny in a subsequent appeal that finally decides the decree or the order. The Court followed the authorities in 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, while distinguishing the decisions in Ramkripal Shukul v. Mst. Rup Kuari (1883) L.R. 11 I.A. 37, Bani Ram and Anr. 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. The Court further observed that after the amending Act omitted Section 28 of the Calcutta Thika Tenancy Act of 1949, that provision could not be invoked in respect of any proceedings that were pending when the Thika Tenancy Ordinance of 1952 commenced. This view was affirmed by the decision in Mahadeolal Kanodia v. The Administrator General of West Bengal, [1960] 3 S.C.R. 578.

The judgment was rendered in a civil appellate matter. The appeal, numbered Civil Appeal No. 257/59, was taken by special leave from the judgment and order dated 18 April 1958 of the Calcutta High Court in Civil Rule No. 1487 of 1955. That High Court order itself arose out of the judgment and order dated 12 February 1955 of the Munsif Second Court, Alipore, in Miscellaneous Case No. 342/1949. Counsel for the appellants were represented by neutral counsel, while the respondents were represented by counsel appearing on their behalf. The judgment was pronounced on 20 April 1960, and Justice Das Gupta delivered the opinion of the Court. The appeal was brought by the landlords who, having obtained an ejectment decree against the tenants—Deorajin Debi and her minor son—on 10 February 1949, had not yet succeeded in taking possession of the land despite the decree being in their favour. Shortly after the decree was entered, the Calcutta Thika Tenancy Act of 1949 was enacted and became part of the statutory scheme governing tenancy relations.

The factual chronology proceeded as follows. On 3 March 1949 the tenants filed an application under Order 9, Rule 13 of the Code of Civil Procedure seeking to have the ejectment decree set aside. The Munsif dismissed that application on 16 July 1949. Subsequently, on 9 September 1949 the tenants filed a second application, this time invoking Section 28 of the Calcutta Thika Tenancy Act. In that application they claimed to be Thika tenants and prayed that the decree dated 2 February 1949 be rescinded on that basis. The landlords, who were the decree‑holders, opposed the application. On 12 November 1951 the Munsif examined the matter and held that the applicants did not qualify as Thika tenants within the meaning of the Thika Tenancy Act; consequently, the decree was not liable to be rescinded, and the Munsif dismissed the tenants’ application. Following that dismissal, the tenants moved the Calcutta High Court under Section 115 of the Code of Civil Procedure, seeking further relief. By the time the High Court considered the revision application, the Calcutta Thika Tenancy Ordinance had become effective on 21 October 1952, and the Calcutta Thika Tenancy (Amendment) Act of 1953 had been enacted on 14 March 1953, which omitted Section 28. The High Court therefore needed to determine whether Section 28 remained viable for the pending application, a question that ultimately reached this Court for determination.

The tenants filed an application before the High Court of Calcutta under Section 115 of the Code of Civil Procedure. By the time that revision application was scheduled for hearing, the Calcutta Thika Tenancy Ordinance had become operative on 21 October 1952, and subsequently the Calcutta Thika Tenancy (Amendment) Act 1953 had come into force on 14 March 1953. The 1953 Amendment Act, among other changes, removed Section 28 of the original Act. Consequently, the High Court was required to determine whether the application made under Section 28 remained viable. To resolve this issue, the Court examined the effect of Section 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 shall be deemed to have always applied to any proceedings that were pending at the date of commencement of the Calcutta Thika Tenancy Ordinance of 1952.

The learned judges of the High Court concluded that Section 1(2) of the Amendment Act did not alter the operation of Section 28 of the original Act with respect to the proceedings in question, and therefore they disposed of the applications on the ground that Section 28 was still applicable. In addition, the Court held that, in view of the amended definition of the term “Thika tenant” and the evidence recorded by the Munsif, the petitioners must be regarded as Thika tenants. Accordingly, the Court allowed the revision application, set aside the order of the Munsif that had dismissed the application under Section 28, and remanded the matter to the Munsif’s Court for disposal in accordance with law. After the remand, the Munsif rescinded the decree for ejectment.

The landlords’ subsequent application under Section 115 of the Code of Civil Procedure challenging the Munsif’s order was rejected by the High Court. The landlords then attempted to raise, once more before the High Court, the question of the applicability of Section 28. The judge hearing that matter held that, as between the parties, the issue was barred by res judicata. Against that order of the High Court, the landlords filed the present appeal, having obtained special leave from this Court on 16 November 1956. Counsel for the appellant argued that a proper construction of Section 1(2) of the Calcutta Thika Tenancy Amendment Act 1953 requires that Section 28 of the original Act cannot be applied, after the amending Act became operative, to any proceedings that were pending on the date of commencement of the Calcutta Thika Tenancy Ordinance 1952. This question was previously considered by the Court in Mahadeolal Kanodia v. The Administrator‑General of West Bengal, wherein the Court held that Section 28 of the original Act is not applicable to such proceedings. If that argument is available to the appellant, the appeal will succeed as in that view of the

In the present case the Court observed that no relief could be granted to the tenants under section 28 of the original Act and that the order issued by the Munsif on 12 December 1955, which had set aside the decree for ejectment, must be reversed. The respondent, however, argued that the appellant was precluded by the doctrine of res judicata from canvassing before the Court the issue of whether, after the enactment of the Thika Tenancy Amendment Act 1953, section 28 of the original Act continued to apply to proceedings that were pending at the time the Thika Tenancy Ordinance 1952 came into force. To support this submission the respondent relied upon the Privy Council decision in Ram Kripal Shukul v. Muss Umat Rup Kuari (1) [1960] 3 S.C.R. 578. The Court explained that the principle of res judicata is rooted in the necessity of giving finality to judicial determinations. It means that once a matter has become res judicata it cannot be adjudicated again. The rule is principally directed at preventing the re‑litigation of a matter that has already been decided between the same parties, whether the issue concerns a question of fact or a question of law. When a decision has become final—either because no appeal was filed, because an appeal was dismissed, or because no right of appeal exists—neither party may re‑assert the same issue in any subsequent suit or proceeding. Although the doctrine is expressly provided for in section 11 of the Code of Civil Procedure with respect to suits, the courts have applied the principle even where section 11 is not technically applicable, in order to secure the intended finality of litigation. Consequently, both the trial court and any higher court hearing a later proceeding are required to assume that the earlier decision was correct. The doctrine also extends to different stages within the same proceeding; a court that has decided a matter at an earlier stage, whether the trial court or an appellate court, will not permit the parties to revive the same issue at a later stage of the same case. The Court then considered whether this restriction also covers interlocutory orders that were decided at an earlier stage when no appeal was possible or was not taken. Referring to an earlier Privy Council decision, the Court noted that in Maharaja Moheshur Singh v. The Bengal Government the Council held that an appellate court which had not previously examined an interlocutory question was nevertheless entitled to investigate the grievance of a party concerning that interlocutory order in an appeal from the final decision. That precedent involved a dispute over the assessment of revenue on lands and illustrated that the doctrine of res judicata does not absolutely bar a higher court from reviewing interlocutory determinations that were not earlier the subject of appeal.

In this case, the Special Commissioner delivered a judgment on 6 December 1841 stating that only 3,513 beeghas of land were assessable and that the government collections on the remaining lands should be returned to the possessors. A second Special Commissioner affirmed this judgment on 8 March 1842. Subsequently, on 21 September 1847, the Government of Bengal filed a petition for review before another Special Commissioner, and that petition was allowed. After hearing the matter, the review resulted in the reversal of the earlier judgment of 8 March 1842.

The question then came before the Privy Council: whether the review had been granted in accordance with the Regulations then in force regarding the grant of a review. The Government of Bengal argued that it was too late to challenge the regularity of the review, contending that a party who considered himself aggrieved should have appealed at the time, and that after a decision was pronounced against him it was too late to do so. The Privy Council rejected that objection. It stated that no law or regulation in India required a suitor to appeal every interlocutory order he believed to be prejudicial, under threat of losing forever the benefit of appellate consideration. The Council noted that no authority or precedent supported such a rule and that imposing it would be detrimental to the swift administration of justice, because it would burden the suitor with endless expense and delay and similarly harm the opponent. The Council further observed that it had repeatedly corrected erroneous interlocutory orders even when those orders were not brought before it until the entire cause had been decided and an appeal was filed for adjudication.

The same principle was reiterated in the case of Forbes v. Ameeroonissa Begum. In that matter, a decree for possession with mesne profits had been entered against the defendant by Civil Judge Purneeha on 18 December 1834. The defendant appealed to the Sadar Diwani Adalat, which on 22 January 1857 held that the Civil Judge had erred in granting mesne profits and that the plaintiff was bound to render certain accounts before his conditional sale could become absolute. Consequently, the Sadar Diwani Adalat remanded the case so that the plaintiff could be called for his accounts and the case could be decided in light of the Adalat’s observations.

After the plaintiff presented his accounts, the trial judge concluded that the accounts were inadequate and consequently dismissed the suit. The appellant subsequently filed an appeal against the decree of dismissal in the Sadar Diwani Adalat, but that appeal was rejected, and a later petition seeking a review of the decision was also turned down. The appellant then contended before the Privy Council that the Sadar Diwani Adalat had erred in obliging him to produce his accounts. To raise this issue before the Privy Council, it was first necessary to determine whether, assuming the Sadar Diwani Adalat was indeed mistaken in remanding the case for a new trial, the appellant remained bound by the dismissal decree because he had not appealed from the remand order. The Privy Council observed that the remand order was merely an interlocutory order; it did not intend to finally determine the dispute. Accordingly, relying on the principle articulated by the Privy Council in Maharaja Moheshur Singh v. the Government of Bengal, the appellant was not barred from asserting that the remand demanding the production of accounts was wrong, nor was he prevented from urging that the case be decided in his favour despite the failure to produce the accounts. The Privy Council further noted that the judges of the Sadar Court themselves treated the question of the accounts as still open to the appellant when they examined his appeal against the dismissal decree that had been issued after the remand. The same principle from the Moheshur Singh case was later applied by the Privy Council in the case of Sheonath v. Ramnath. In that proceeding, Ramnath instituted a suit before the Civil Judge of Lucknow seeking a general account and a partition of the property. The plaint alleged that certain releases, referred to as “Farighkuttees,” had been executed but that no partition between the parties had actually taken place; it claimed that the intended partition was to become effective only after the accounts were settled, that the Farighkuttees were to be registered thereafter, and that, pending such registration, the releases remained with the appellant as incomplete instruments. The trial judge, however, held that the Farighkuttees were executed on the basis of an actual partition and division of the joint property, found no evidence of fraud, and dismissed the suit. On appeal, the Judicial Commissioner affirmed the trial judge’s decision on all points, but added that there remained one unadjusted account between the parties concerning the division of the outstanding assets that had been left unresolved at the time of the partition. Consequently, the Judicial Commissioner remanded the matter to the trial judge, directing him to determine the sum that should be awarded to the plaintiff in satisfaction of all claims arising from that outstanding account, and, where possible, to obtain a decision from the arbitrators previously appointed by the parties. After the remand, the Civil Judge referred the contested issue to those arbitrators, but the defendant refused to accept this order and filed a petition before the Judicial Commissioner challenging the appointment of the arbitrators.

The defendant stated that he objected to the arbitrators to whom the Civil Judge had referred the case and he asked that other arbitrators might be appointed. The Judicial Commissioner rejected the objection and overruled the request. After that the Civil Judge entered two separate decrees, the first one on 4 September granting part of the claim and the second one on 22 December granting another part of the claim. Both decrees were appealed and the Judicial Commissioner affirmed each of them. The defendant then took the Judicial Commissioner’s decision to the Privy Council for further review.

Before the Privy Council the defendant raised two questions. The first question was whether the Judicial Commissioner had the authority, without the consent of both parties, to vary the rights of the parties under the Farighkuttees by his order of 15 May 1862 and to impose on the defendant an obligation to purchase the plaintiff’s interest in the outstanding amounts on a rough estimate of value. The second question was whether the Judge’s appointment of a particular arbitrator, made without the consent of the appellant and despite the appellant’s repeated protests, was irregular and therefore rendered the award non‑binding on the appellant. It was noted that the defendant had not appealed against the Judicial Commissioner’s order of 15 May 1862, nor had he appealed against the later order in which the Judicial Commissioner rejected the defendant’s petition to substitute other arbitrators. Despite the absence of separate appeals on those interlocutory orders, the Privy Council held that both points were open to the appellant. The Council observed that, although the appellant had appealed only against the final decision of the Civil Judge and its confirmation by the Judicial Commissioner, the earlier observations were still permissible to raise, citing the precedent of Moheshur Singh v. Government of Bengal. The Council explained that the appeal was essentially to set aside an award that the appellant claimed was not binding, and that the appellant was not required to appeal every intermediate order that formed part of the procedure leading to the award. The Council also remarked on the importance of the rule that decisions not appealed should be treated as finally decided, for the proper administration of justice, because it prevents parties from repeatedly challenging former interlocutory decisions in higher courts, a practice that would otherwise cause delay and prejudice the opposite side.

In this case, the Court observed that a litigant could not be forced to appeal merely because an interlocutory order had not been appealed or because no appeal lay. The Privy Council, in Moheshur Singh’s Case, had explained that applying the rule that any decision not appealed at every stage of litigation became final even for superior courts would impose upon each party whose interlocutory order was adverse the obligation to seek redress in higher courts. Such a requirement could be unnecessary if the final decree ultimately favored the party, making an appeal to a higher court superfluous. The Court noted that this rule would inevitably cause delays in the litigation’s progress and would also prejudice the other party, who would have to endure repeated interventions by higher courts over every alleged erroneous interlocutory order. Recognizing the need to avoid this problem, the Legislature, from the very beginning of the Code of Civil Procedure, introduced a provision allowing a party, in an appeal from a decree, to challenge the correctness of any interlocutory order that had not been appealed but that had affected the case’s decision. Under the Code of 1859, section 363 declared that no appeal could arise from any order passed during a suit before a decree, but it added that if the decree were appealed, any error, defect, or irregularity in such an order that affected the merits or jurisdiction of the court could be set out as a ground of objection in the memorandum of appeal. When the Code of 1877 created Chapter 43 for appeals against certain orders, section 591 provided that, except as provided in that chapter, no appeal could lie from any order passed by any court exercising original or appellate jurisdiction, yet it permitted that, if a decree were appealed, any error, defect, or irregularity in such an order affecting the decision of the case could be raised as an objection in the appeal memorandum. The same position was retained in the Code of 1882. The present Code, in section 105, employed virtually identical language, substituting the words “any order” for the earlier phrase “any such order,” and it added a second sub‑section dealing specifically with orders of remand. Earlier, the phrase “such order” in section 591 had given rise to arguments before the Privy Council that the provision applied only to non‑appealable orders. The Privy Council rejected that contention, and the Legislature subsequently adopted the Council’s view.

By substituting the words “any such order” with “any order,” the legislature altered the language of the provision. Regarding orders of remand, the earlier statutory scheme allowed a party who was dissatisfied with a remand order to raise an objection to its validity in an appeal against the final decree, even if that party could have appealed the remand order under the earlier provision and had chosen not to do so. The second sub‑section of section 105, however, barred an appellant, when filing an appeal from the final decree, from pleading any objection that might have been raised by way of a separate appeal from the remand order. Consequently, an interlocutory order that had not been appealed—either because no statutory right of appeal existed or because a right existed but remained unexercised—could still be assailed in a later appeal from the final decree or final order. A special rule was created for remand orders: if a statutory right of appeal to the remand order existed and the aggranted party failed to take that appeal, the correctness of the remand order could not subsequently be challenged in the appeal from the final decision. Conversely, if no statutory right of appeal to the remand order existed, the correctness of that order could be contested in the appeal from the final decree, just as with other interlocutory orders. The second sub‑section was not applicable to the Privy Council and, according to the Court, could not be applied to appeals before the Supreme Court. No justification existed for preventing the appellant from raising before this Court the question of the applicability of section 28 merely because he had not appealed the High Court’s remand order; the Court therefore rejected the argument that the provision applied to bar such a question.

The Court also disagreed with the counsel’s contention that the Privy Council’s decision in the case of Ram Kirpal Shukul influenced the present matter. The referenced case involved execution proceedings concerning a decree dated 1862. The central issue was whether the decree granted mesne profits. The District Judge, Mr Probyn, answered affirmatively. In 1879, while the execution remained pending, the Executing Court revisited the question and held that it was bound by Mr Probyn’s decision, proceeding with the execution accordingly. That order was affirmed on appeal, after which the judgment‑debtor appealed to the High Court. Before the High Court, the judgment‑debtor argued that the doctrine of res judicata should not apply to execution proceedings. The Full Bench of the High Court, to which the Division Bench had referred the question, rejected this argument. Consequently, the Division Bench concluded that Mr Probyn’s view was erroneous, decreed that the appeal should be allowed, and ordered that execution of the decree for mesne profits be disallowed. The Privy Council later observed that Mr Probyn’s order was an interlocutory judgment that had never been reversed or set aside, and it held that the absence of a further appeal to the High Court was immaterial: if no further appeal existed the judgment was final, and if a further appeal existed but was not taken, the judgment remained binding. The Judicial Committee affirmed that both the subordinate judge and the executing judge were bound by Mr Probyn’s order in proceedings between the same parties on the same judgment, and that the High Court and the Privy Council themselves were likewise bound. The Court therefore found that the Privy Council’s decision did not affect the applicability of the statutory provisions under consideration in the present case.

In the matter before the Privy Council, the Court held that Mr. Probyn’s view was erroneous, that the appeal should be decreed, and that execution of the decree concerning mesne profits must be disallowed. The Privy Council first observed that the order issued by Mr. Probyn was an interlocutory judgment, yet it emphasized that this order had never been reversed or set aside. The Council further explained that the absence of a right of second appeal to the High Court was immaterial, because if no such appeal was available the judgment was final, and if an appeal was theoretically available but none was taken, the judgment remained equally binding on the parties. According to the Judicial Committee, both the learned Subordinate Judge and the Judge were bound by Mr. Probyn’s order in proceedings reported at (1) [1884] L.R. 11 I.A. 37, and the High Court was likewise bound by that order, so that the Lordships of the Privy Council were also bound when adjudicating between the same parties. The decision in Ram Kirpal Shukul’s case was subsequently followed by the Privy Council in Bani Ram v. Nanhu Mal (1), which also concerned an order made in execution proceedings, and it was again affirmed by the Privy Council in Hook v. Administrator‑General of Bengal (2). In Hook’s case, the High Court, dealing with an administration suit, held that certain conditions of a will had not been satisfied and that there was no intestacy with respect to surplus income; it rejected the next‑of‑kin’s claim that the gift‑over was invalid because it would create a perpetuity. The decree deferred determination of the income or corpus of the fund until after the death of the annuitant. After the annuitant died, the next‑of‑kin again argued that, under the reservation in the decree, the gift‑over remained invalid. The Privy Council ruled that the validity of the gift‑over was res judicata. It is important to note that, in all three cases—Ram Kirpal Shukul’s case, Bani Ram’s case, and Hook’s case—the earlier decision that was held to be res judicata formed part of a decree. Consequently, although the later proceeding in which the issue was re‑raised was formally a continuation of the earlier proceeding, it was, in substance, an independent subsequent proceeding. The decision in a dispute concerning execution was, as a matter of course, a decree under the Code of Civil Procedure, and therefore, in Ram Kirpal’s case and Bani Ram’s case, such a decree effectively terminated the earlier proceedings. Thus, the Privy Council’s description of Mr. Probyn’s order as an “interlocutory judgment” does not support the learned counsel’s argument that every interlocutory judgment that goes un‑appealed becomes res judicata. Interlocutory judgments that possess the force of a decree must be distinguished from other interlocutory judgments that do not terminate the proceeding.

In the earlier authorities the Court observed that judgments which constitute a step toward the final resolution of a dispute, by way of a decree or a final order, are to be distinguished from merely interlocutory decisions. The decisions reported in (1884) L.R. 11 I.A. 181 and (1921) L.R. 48 I.A. 187 exemplify the former category. Moheshur Singh's Case, Forbes' Case and Sheonath's Case dealt with interlocutory judgments that did not terminate the proceedings but merely progressed the matter toward a later decree or final order. By contrast, Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case involve judgments that, although described as interlocutory, in effect brought the earlier proceedings to an end. Accordingly, those cases do not support the respondent's counsel argument that the remand order issued by the High Court, because it was not appealed to this Court, cannot now be questioned. The Court is of the view that the remand order was an interlocutory judgment which did not end the litigation; consequently its correctness may be examined in an appeal from the final decree. Therefore the appellant is not barred from raising before this Court the question whether section 28 of the original Thika Tenancy Act was unavailable to tenants after the Thika Tenancy Amendment Act came into force. On that point the Court has already decided, as indicated earlier, in Mahadeolal Kanodia's Case (1) that after its omission by the Amending Act, section 28 does not apply to proceedings that were pending on the date the Thika Tenancy Ordinance of 1952 commenced. Accordingly, the view adopted by the High Court in the present matter is held to be erroneous, and the Munsif acted without jurisdiction when he rescinded the ejectment decree. The appeal is therefore allowed, the order of the High Court is set aside together with the Munsif's order dated 12 February 1955 which rescinded the ejectment decree. Because the law regarding the applicability of section 28 was uncertain, each party is ordered to bear its own costs in this Court. The appeal is allowed. (1) [1960] 3 S.C.R. 578.