IMPORTANT POINTS
(1) Appeal can be preferred only against a decree and not against any adverse finding recorded by Court below.
(2) Res Judicata – Primary requirement of applicability of res-judicata is that issue raised must have been heard and finally decided by Court in former suit.

ORDER

Pranay Verma, J.—This appeal under Section 100 of the CPC has been preferred by legal representatives of deceased defendant No.2 Mahila Sajjanbai against the judgment and decree dated 26.08.2022 passed in RCA No.2400018/2015 by the IInd District Judge, District - Ratlam arising out of the judgment and decree dated 10.02.2011 passed in Civil Suit No.147-A/2008 by the IVth Civil Judge, Class-I, District Ratlam.

2. The plaintiffs/respondents No.1 to 4 instituted an action against the defendants for declaration of their title to the suit lands and for possession. The defendants including defendant No.2 contested the plaintiff’s claim by filing their written statement. By judgment and decree dated 10.02.2011 the trial Court answered all the issues in favour of plaintiffs but upon recording a finding to the effect that the suit is barred by time, dismissed the same. The plaintiffs did not prefer any appeal against the judgment and decree passed by the trial Court. The legal representatives of deceased defendant No.2 however preferred an appeal under Section 96 of the CPC before the lower appellate Court to challenge the findings recorded by the trial Court against defendant No.2. By the impugned judgment and decree the appeal has been dismissed by the lower appellate Court on merits.

3. The appellants have challenged the aforesaid judgment and decree dismissing their appeal and affirming the findings recorded by the trial Court against them. However, it is observed that though findings had been recorded by the trial Court in favour of plaintiffs and against defendant No.2 on merits but the claim was ultimately dismissed by it. There was hence no decree against defendant No.2. She or her legal representatives had no right to prefer an appeal under Section 96 of the C.P.C. against the said decree as it is well settled that an appeal can be preferred only against a decree and not against any adverse finding recorded by the Court below. Since the ultimate decree was in favour of defendant No.2, no appeal could have been preferred by her legal representatives, the appellants. The appeal preferred by them before the lower appellate Court was hence itself not maintainable and ought to have been dismissed as such by it which has however illegally proceeded to dismiss the same on merits. The judgment passed by the lower appellate Court is hence wholly without jurisdiction.

4. In Banarsi and others vs. Ram Phal 2003(9) SCC 606, it has been held in paragraph 8 as under:—

“8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] .) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.”

5. In AIR 1951 P&H 444 Ali Ahmad vs. Amarnath it was held that where a decree is absolutely in favour of party but some issues are found against him, he has no right of appeal against the findings because he is, firstly not adversely effected thereby secondly because such findings are not embodied in and do not form part of the decree. In AIR 1961 Calcutta 39 (FB) The Commissioner for the Port of Calcutta vs. Bhairadinram Durga Prosad, it was held that the decree of the lower appellate Court was entirely in favour of the appellants/tenant hence the appellants could not have any right of appeal against the finding when that finding does not effect the decree. In AIR 197