IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 RSA.No. 603 of 2009() --------------------- A.S.NO.155 OF 2005 OF SUB COURT, OTTAPPALAM OS.42/2003 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 3: ---------------------------------------------------- 1. JANAKI, D/O. MULLA, NETTIYATHUPADI, D/O. NETTIYATHUPADI THUPRAN, CHALISSERY AMSOM AND DESOM, OTTAPALAM TALUK, -DO- -DO- 2. VELAYUDHAN, AGED ABOUT 52 YEARS, S/O. KORAN, -DO- BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT/RESPONDENT/PLAINTIFF & 1ST DEFENDANT --------------------------------------------------- 1. THANKAMMA, AGED 47 YEARS, W/O. KUNNATHERIPARAMBIL KUNHAN, CHALISSERY AMSOM AND DESOM, OTTAPALAM TALUK. * 2. MULLA, AGED ABOUT 77 YEARS, (DIED and RECORDED) NETTIYATHUPADI THUPRAN, CHALISSERY AMSOM AND DESOM, OTTAPALAM TALUK. (* - IT IS RECORDED THAT R2 AND 1st APPELLANT IS THE SOLE LEGAL REPRESENTATIVE OF DECEASED R2 AS PER ORDER DT. 24-02-2010 IN STATEMENT BEARING cf NO.1240/10 DTD.23-02-2010) ADV. SMT.T.D.RAJALAKSHMI FOR R1 SRI.R.SREEHARI FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.603 of 2009E --------------------------------------- Dated this 18th day of March, 2010 JUDGMENT Respondent No.2 has expired and appellant No.1 has been recorded as her legal representative. 2. This appeal is directed against an adverse finding against the appellants in the judgment of learned Sub Judge, Ottappalam in A.S.No.155 of 2005 which reversed judgment and decree of learned Munsiff-Magistrate, Pattambi in O.S.No.42 of 2003 in favour of appellant. Respondent No.1 filed a suit for decree for prohibitory injunction against appellants and deceased respondent No.2 claiming title and possession of the suit property as per Ext.A2, Will No.137/95 dated 20-12-1995. Appellants and deceased respondent No.2 disputed execution of Ext.A2, Will. Learned Munsiff found in favour of due execution and attestation of Ext.A2, that respondent No.1/plaintiff is in possession of the suit property and granted a decree as prayed for. Appellants challenged that judgment and decree in A.S.No.155 of 2005. Learned Sub Judge though upheld finding of the learned Munsiff regarding due execution and attestation of Ext.A2 held that respondent No.1/plaintiff has no possession of the suit property to seek decree for prohibitory injunction and accordingly allowed the appeal reversing judgment and decree of learned Munsiff granting prohibitory injunction R.S.A.No.603 of 2009 2 and dismissed the suit. Now, this appeal is preferred by appelalnts/defendant Nos.2 and 3 challenging the finding entered by the courts below regarding due execution and attestation of Ext.A2, Will. 3. I have heard counsel for appellants and respondent No.1 as to the maintainability of the appeal. Even as sections 96 or 100 of the Code of Civil Procedure (for short, “the Code”) say, an appeal is provided against the 'decree' of the Subordinate Court and not against the 'judgment'. The Supreme Court in Banersi and Others vs. Ram Phal (AIR 2003 SC 1989, paragraph 8) held, “Section 96 and 100 of the 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. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against the decree and not against the judgment” (emphasis supplied) R.S.A.No.603 of 2009 3 Thus, an appeal could only be preferred against a 'decree' by the person aggrieved by such 'decree' and not against an adverse finding in the judgment. In this case decree of the learned Sub Judge reversed decree of trial court and dismissed the suit in favour of the appellants. Hence appellant are not aggrieved by that decree. Appellants therefore cannot prefer this appeal. 4. It is argued by learned counsel for appellants that finding of the courts below as to genuineness of the Will materially and substantially prejudiced interests of the appellants in that the finding might affect the claim of appellants for title over the suit property. It is also stated by learned counsel that respondent No.1/plaintiff, based on the finding of the courts below as to genuineness of the Will has instituted a suit for recovery of possession of the property and if the finding of courts below as to genuineness of Ext.A2 stands, it might be contended that the said finding operated as resjudicata against the appellants. I do not find reason for any such an apprehension since when the proceeding ultimately is decided in favour of a party, an adverse finding therein cannot operate as resjudicata. No such situation arises in this case. Moreover the Supreme Court has held in Ramesh Chandra Vs. Shiv Charan Dass (AIR 1991 SC 264) that one of the tests to find whether a former decision is resjudicata is to ascertain whether the party aggrieved could challenge it. I stated that R.S.A.No.603 of 2009 4 since so far as decree of the first appellate court is entirely in favour of the appellants, they cannot be said to be aggrieved and hence they have no right under section 100 of the Code to prefer an appeal. If that be so, adverse finding entered by the courts below as to genuineness of the Will unless the party aggrieved by the decree preferred an appeal and the party against whom adverse finding was made had an opportunity to challenge the adverse finding which he either did not or did, but failed cannot be the basis for an independent appeal. As such, finding of the courts below as to genuineness of Ext.A2 cannot operate as resjudicata against the appellants in whose favour decree of the first appellate court stands. With the above observations, the appeal is dismissed as not maintainable. THOMAS P JOSEPH, JUDGE Sbna/