There is no right of appeal against mere findings embodied in the judgment but not in the decree.

D. K. SETH, J.

( 1 ) IN a suit claiming right over a property by the plaintiff on the basis of the Will, the defendant had claimed that he happens to be the owner of the property. Accordingly, an issue was framed being issue No. 4 as to whether the defendant was the successor of one Baldeo and was the owner of the property. The learned trial court had found that the Will produced by the plaintiff was forged one and the plaintiff and his witness Mool Chandra were guilty of giving false evidence producing forged documents for which a cost of Rs. 2,000 was imposed on the plaintiff along with the direction for initiation of the proceedings under Section 195. read with Section 340 of the Code of Criminal Procedure ; while Mool Chandra was directed to be proceeded against under Section 420/467/468/471. I. P. C. . while a cost of Rs. 1,000 was also imposed on the defendant on account of giving false evidence.

( 2 ) THE defendant preferred an appeal challenging the said imposition of cost as well as the finding with regard to issue Nos. 4 and 8 respectively. The learned trial court reversed the imposition of cost on the defendant on account of giving false evidence white it had also rejected the appeal with regard to the finding on issue Nos. 4 and 8. The learned counsel for the appellant contends that there having been a declaration of right of the defendant to the extent that he was not the successor of Baldeo Prasad and not the owner of the property, he can maintain the second Appeal even though the decree with regard to imposition of cost as against the defendant was set aside.

( 3 ) SECTIONS 96 and 100 of the Code provide for appeal from decree passed by a Court of original jurisdiction and no appeal, by a Court subordinate to the High Court respectively. Neither of these Sections permit appeal against judgment. However, where decree is not drawn within 15 days of the judgment and decree, Order XX, Rule 6a permits filing of appeal with a copy of the last paragraph of the judgment, which by fiction is treated as decree. Therefore. the appeal lies from the decree and not from the judgment although the word "decision" Is used in sub-section (1) of Section 96 of the Code.

( 4 ) THE above view finds support In the case of Jaga Dhish v. Jawahar Lal Bhargava, MR 1961 sc 832. There can be no appeal against findings embodied In the judgment but not In the decree. In Niamat D. Phadu, ILR 6 Cal 319 (FB) ; Koylash v. Ram, ILR 6 Cat 206 ; Anusuyabai V. Sakharam, ILR 7 Bom 464 ; the above view was expressed. The Apex Court In Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126, had held that no appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. In M. Latchayya V. S. Kotamma, AIR 1925 Mad 264 ; Tausukh Bat v. Copal Mahto, AIR 1929 Pat 586 ; Jugal Ktshore y. Sheonandan Singh, AIR 1973 Pat 22, it has been laid down that mere adverse finding against a party does not give a right of appeal.

( 5 ) HOWEVER, a different view was taken in the case of Harachandra Das v. Bholanath Das, ilr 62 cat 70 : 39 CWN 567 ; Krishna Chandra Gaidar v. Mahesh Chandra Saha, 9 OWN 584 ; All ahmad v. Amamath, AIR 1951 Punj 444 ; P. N. Kesavan v. Lakshmy. AIR 1968 Kar 154 ; Arjun singh v. Tara Das Ghosh. AIR 1974 Pat 1 (FB ). In those cases, it was held that though under the strict letters of the provision in the Code relating to right of appeal no appeal lies by a party in whose favour a decree has been passed, against a finding contained in the Judgment, he has a right to appeal against a finding adverse to him provided that it would operate as res judicata tn a subsequent suit or proceedings. However, whether this proposition is based on grounds of justice, as has been taken in Arjun v. Tardas, (supra)--is correct or not--was not determined finally in Ganga Bal v. Vijay Kumar, (supra) by the Apex Court.

( 6 ) BUT the principle of res Judicata cannot be applied In respect of adverse finding not incorporated in the dec