Appeal from a mere finding is not maintainable when no challenge is made to the decree itself.

An appeal under the Code of Civil Procedure lies from a decree or an appealable order, not from a mere adverse finding recorded in a judgment. The Supreme Court held that the sons' memorandum of appeal, which challenged only the finding that the partition was sham and colourable, was not maintainable because no appeal had been directed against the decree itself. It further held that the partition finding was unnecessary to the decree, did not operate as res judicata, and could not be used to sustain a late amendment of the appeal memorandum filed without explanation or condonation. The High Court's decision was set aside and the trial court's decree restored.

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Issues: (i) whether an appeal lies against a mere finding recorded in a judgment when no appeal is directed against the decree; (ii) whether the finding that the partition was sham and colourable could justify the maintainability of the sons' appeal on the footing of res judicata or otherwise.

Issue (i): Whether an appeal lies against a mere finding recorded in a judgment when no appeal is directed against the decree.

Analysis: The right of appeal is statutory and, under the Code of Civil Procedure, appeals lie from decrees and from orders only where an appeal is expressly provided. A mere finding, divorced from an appeal against the decree itself, is not made appealable by the Code. The High Court treated the challenge as if it were directed to the preliminary decree, but in truth the memorandum was confined to the adverse finding on the genuineness of the partition. The appeal was therefore directed against a matter for which no appeal lay.

Conclusion: The appeal against the mere finding was not maintainable.

Issue (ii): Whether the finding that the partition was sham and colourable could justify the maintainability of the sons' appeal on the footing of res judicata or otherwise.

Analysis: A finding can support an appeal only if it is directly and substantially in issue and capable of operating as res judicata in later proceedings. On the facts, the genuineness of the partition did not affect the decree passed in the suit, because the mortgage was found not binding on the sons' interest for reasons independent of the partition. The finding on partition was therefore unnecessary to the decree and could not operate as res judicata. The High Court was also not justified in allowing a belated amendment of the memorandum of appeal after inordinate delay and without any explanation or condonation.

Conclusion: The finding on partition did not operate as res judicata and could not validate the sons' appeal or the late amendment.

Final Conclusion: The High Court's decision was set aside and the trial court's decree was restored, with costs.

Ratio Decidendi: An appeal under the Code lies only from a decree or an appealable order, not from a mere finding; a finding not directly and substantially in issue and not capable of operating as res judicata cannot be independently challenged in appeal.

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