M/S ORIENTAL FIRE GENERAL INSURANCE COMPANY LIMITED & ANOTHER Vs. M/S. J. THOMAS & COMPANY & ANOTHER

JUDGEMENT

(1.) The appellants in this case were defendants along with one M/s J. Thomas & Co. in the suit filed by the respondent No. 1. The appellant No. 1 is M/s Oriental Fire & General Insurance Company Limited and appellant No. 2 is M/s Phoenix Assurance Company Limited. The appellant No. 2, in fact, merged with the appellant No. 1 and, as such, has no independent existence of its own since the merger. For bravity, the appellants shall be hereinafter referred to as "the appellants". In the year 1968, a suit was filed by the plaintiff-respondent No. 2, Sarojini Tea Co. (P) Ltd., against the present appellants and the respondent No. 1 herein who was arrayed as defendant No. 2. A joint and several decree for a sum of Rs. 10,216.00 with interest @ 6% from the date of filing of the suit till recovery of decretal amount was passed against the appellants and the respondent No. 1. The present appellants did not file any appeal against the said judgment and decree. The respondent No. 1 who was defendant No. 2 in the original suit, however, alone filed an appeal and challenged the decree not on merits but on a limited point pert lining to its own liability. In the said appeal, the present Insurance Companies (appellants) were also made respondents. They, however, did not turn up to contest the appeal. The appeal was allowed by the learned District Judge, Dibrugarh and the judgment and decree of the trial Court were modified. It was directed that the decree shall be executed only against defendant No. 1, namely, the insurance company, appellant No. 1. The insurance company has filed the present second appeal before this Court.

(2.) Mr. D.N. Baruah, the learned counsel for the respondent No. 2 raised a preliminary objection as to the maintainability of this appeal on the ground that the present appellants having sot filed any appeal against the judgment and decree passed by the trial Court, are not entitled to prefer a second appeal against the judgment passed of appeal filed by other defendant, namely, defendant No. 2 who challenged the decree in appeal not on merits but only in so far as it purported to make it jointly and severally liable along with the other defendants. Mr. A.R. Banerjee, the learned counsel for the appellant, on the other hand, submits that the present second appeal is maintainable in view of the provisions of Rule a of Order 41 of the Civil Procedure Code, 1908, hereinafter referred to as 'the CPC'. According to the counsel for the respondents reliance on Order 41 Role 4 is misplaced. The said provision is not applicable to the facts of the present case.

(3.) I have considered the submissions. To appreciate the rival contentions it is necessary to first refer to the provision of Rule 4 of Order 41. It reads :