( 1 ) THE appellant-United India Fire and General Insurance Company Limited obtained two letters, one, dated Feb. 5, 1973 letter of subrogation and the other, letter of assignment of even date Ex. A-3, from M/s. V. K. Brothers, a partnership firm, second respondent herein with a right to recover the suit claim against Sri Palaniappa Transport Carriers, first respondent herein. The facts leading thereto are that M/s. V. K. Brothers (second respondent) consigned six bales of cloth to be delivered at Madras and entrusted to the first respondent Transport Carriers, for delivery thereof to the consignee. Before consigning, the second respondent also insured the six bales of cloth with the appellant under a policy. When the goods were delivered at Madras, they were found to be damaged and the authorised valuers made valuation thereof at Rs. 7,199-25 ps. It was found that the first respondent was responsible for causing damage and that the damage was caused due to their negligence. But pursuant to Policy of Insurance covered with the appellant, the appellant made payment thereof to the second respondent and the appellant obtained the letters of subrogation and the assignment of right to indemnification from the second respondent impleading M/s. V. K. Brothers as the second plaintiff in the suit. The appellant laid the suit in the lower Court against the defendant-Transport Carriers. In the written statement the defendant took the plea that M/s. V. K. Brothers is not a registered partnership Firm and that, therefore, the suit is not maintainable. No issue, in that regard, was framed by the trial Court. The trial Court found, as of fact, that the defendant carriers, was negligent and the damage had been caused as a result thereof, that the Insurance Company obtained not only the letter of subrogation but also the assignment of the right of indemnification from the defendant and that therefore, the defendant is liable for the payment of the suit claim. Therefore, the trial Court decreed the suit. The Transport Carriers filed an appeal. The appellate Court felt that the plea that M/s. V. K. Brothers being an unregistered partnership firm, the suit at their instance is not maintainable is a material issue and that it is to be tried after affording an opportunity to all the parties to adduce evidence in that regard. In that view, the appellate Court Set aside the decree and remanded the matter to the Trial Court for framing the above issue and for retrial on that issue. Assailing the remand order, the present appeal has been filed.

( 2 ) SRI C. V. Mohan Reddy, the learned counsel for the appellant raised an important question of law contending that even assuming that M/s. V. K. Brothers is not a registered partnership firm, the suit is not merely based on the right of subrogation but also on assignment of indemnification. The appellant having obtained those rights, it is needless to implead M/s. V. K. Brothers, to Domino as the second plaintiff and the suit at the instance of the appellant itself is maintainable and in such an event the issue framed by the appellate Court is unnecessary and the remand also is not needed. He also further contended that the decision of the Supreme Court in Union of India v. Sri Sarada Mills, AIR 1973 SC 281, was not correctly appreciated by the lower appellate Court and the ratio therein helps the appellant. It is further contended by the learned counsel for the appellant that the right to recover is a common law right or a statutory right under S. 8 of the Carriers Act, 1865 (Act III of 1865 ). Therefore, the prohibition engrafted under S. 69 (2) of the Indian Partnership Act does not apply to the facts of this case. In support thereof, he relied on the decisions of the Kerala and Calcutta High Courts in Kerala Arecanut Stores v. Ramkishore and Sons, AIR 1975 Ker 144, and Sukul Brothers v. H. K. Kavarana (AIR 1958 Cal 730 ).

( 3 ) THOUGH the first respondent has been served, no one is appear