Mohd. Shafique (Dead) Through L. Rs. and Another vs Smt. Khatoon Begum and Others

Sibghat Ullah Khan, J.—In O.S. No. 680 of 1983 present appellants were defendants. The suit was dismissed on 16.10.1999 by Additional Civil Judge (Senior Division)/V A.C.M.M. Kanpur Nagar. However, in the judgment some findings were given against the defendants also. Against the said decree plaintiffs filed appeal which was registered as Civil appeal No. 320 of 1999. The said appeal was also dismissed on 16.1.2002 by XIIIth Additional District Judge Kanpur Nagar. Thereafter, defendant also filed appeal against the judgment of the Trial Court in respect of findings recorded against him, in the year 2004 along with delay condonation application which was registered as Misc. case No. 600/74 of 2004. A.D.J. Court No. 5, Kanpur Nagar on 11.10.2011 dismissed the delay condonation application and consequently the appeal. Against the said judgment and decree this Second appeal has been filed. Even if the argument of learned Counsel for the appellants that there was sufficient ground for condonation of delay is accepted still it will not make any difference as the appeal before the Lower Appellate Court was itself not maintainable.

Against some findings in a judgment no appeal on behalf of a party is maintainable if the ultimate judgment is in favour of that party. By maximum defendants-appellants could file cross-objection during continuance of the appeal filed by the plaintiff i.e. Civil Appeal No. 320 of 1999 (dismissed on 16.1.2002). Independent appeal only against certain findings in the judgment is not maintainable. Appeal lies from a decree and not from a judgment, or any finding in a judgment. Accordingly Second Appeal is dismissed.