DAS GUPTA - (1.) , J.: This appeal is by the landlords who having obtained a decree for ejectment against the tenants, Deorajin Debi and her minor son on 10/02/1949, 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 3/03/1949, the tenants made an application under O. 9, R. 13 of the Code of Civil Procedure for having the decree set aside. That application was dismissed on 16/07/1949. On 9/09/1949, 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Act alleging that they were Thika tenants and praying that the decree made against them on 2/02/1949, (sic) may be rescinded. This application was resisted by the landlords, the decree-holders, and on 12/11/1951, the Munsif holding that the applicants were not Thika Tenants with- in the meaning of the Thika Tenancy Act and accordingly the decree was not liable to be rescinded dismissed the application.
(2.) AGAINST this order 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 21/10/1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953 had come into force on 14/03/1953. The 1953 Amendment Act inter alia omitted S. 28 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 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. 15 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 16/11/1956.
(3.) 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 on the date of the commencement of the Calcutta Thika Tenancy Ordinance, 1952. This question has been considered by us in Mahadeolal Kanodia v. The Administrator-General of West Bengal, Civil appeal No. 303 of 1956: ( AIR 1960 SC 936), in which judgment has been delivered today, 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 12/12/1955, 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 Ram Kripal Shukul v. Rup Kuari, 11 Ind Appellant 37.;