Advocates:
D.N.MUKHERJI, N.R.Bhattacharji, R.R.BISWAS

Based on the provided legal document, here are the key points regarding the principles of Res Judicata and the specific facts of the case:

• General Principles of Res Judicata: For the principle of res judicata to apply, there must be an identity of title in both suits. A finding in an interlocutory order from a former suit does not operate as res judicata in a subsequent suit if the right claimed is different. When Section 11 of the Code of Civil Procedure does not apply, the general principle of res judicata can still be invoked to confer finality on litigation (!) .
• Competence of the Court: The court whose decision is to operate as res judicata must be competent to hear the subsequent suit. This applies whether the decision is statutory under Section 11 or constructive based on general principles (!) .
• Interlocutory Orders and Final Decrees: The principle of res judicata applies between two stages of the same litigation; a court will not allow parties to re-agitate a matter decided at an earlier stage. However, an interlocutory order that has not been appealed from (either because no appeal lay or an appeal was not taken) can generally be challenged in an appeal from the final decree or order (!) (!) .
• Specific Provision on Orders of Remand: While Section 105(2) of the Code precludes an appellant from taking an objection regarding an order of remand (if an appeal lay but was not taken) in an appeal from the final decree, this specific restriction did not apply to appeals to the Supreme Court, as no appeal lay to the Supreme Court against an order of remand (!) . Consequently, the correctness of a High Court's order of remand, which could not be questioned by a direct appeal to the Supreme Court, could still be challenged in an appeal arising from the final judgment (!) .
• Distinction from Execution Proceedings: Previous decisions found to be res judicata in cases like Ram Kripal Shukul and Hook involved judgments that had, in effect, terminated the previous proceedings (having the force of a decree), unlike interlocutory orders which are merely steps toward a final decision. Therefore, those cases do not support the argument that an unappealed order of remand becomes res judicata (!) .
• Application to the Present Case: The order of remand passed by the High Court was an interlocutory order that did not terminate the proceedings. Therefore, the landlords (appellants) were not precluded from raising the question of the applicability of Section 28 of the Calcutta Thika Tenancy Act in their appeal to the Supreme Court against the final order (!) .
• Outcome on the Legal Question: The Supreme Court held that Section 28 of the original Act was not applicable to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952, based on the decision in Mahadeolal Kanodia. Consequently, the High Court's view was wrong, and the order rescinding the ejectment decree was set aside (!) .