JUDGMENT - DESHMUKH S.B., J.: - Heard Shri Choudhary, learned Counsel for the appellants and Shri Solao, learned Counsel for respondents No. 2 and 3. Respondents No. 1 and 4 are duly served, however, are absent.

2. By the consent of the parties, this appeal is being taken up for final hearing at this stage.

3. Few facts, in brief, are noted as under :

The appellants are the original plaintiffs in Special Civil Suit No. 174 of 1996, filed in the Court of the learned Civil Judge, Senior Division, Bhandara, against the respondents-original defendants. It is alleged by the appellants that one Dhanraj Watuji Gaidhane, was the husband of appellant No. 1 Pramila and father of appellants Nos. 2 and 3. According to appellant No. 1, marriage between herself and Dhanraj took place at Wardha, somewhere in the year 1982. The appellants have stated in the plaint that Dhanraj Gaidhane died on 11-6-1994 in a fatal accident. The plaintiffs have also alleged in the plaint that there were two Insurance policies, details of which are given in the plaint, taken out by the deceased Dhanraj during his life time. The appellants have further alleged that an amount of Rs. 3,09,109/- is payable by the Insurance Company i.e. respondent No. 1 under these policies and out of this amount, respondent No. 2 has already received an amount of Rs. 63,749/- from respondent No. 1. The appellant No. 1 has stated in the suit that despite her request, the amount under the insurance policies has not been paid to her by respondent No. 1. The appellants, therefore, have prayed for a decree of Rs. 3,09,109/- against the respondents, jointly and severely along with the interest. The point in short, for determination in the suit is regarding the right of the appellants to get the amount of Rs. 3,09,109/- under policies.

4. In response to the suit, written statement came to be filed by respondent No. 1 as well as respondents No. 2, 3 and 4. Respondent No. 2 is the nephew of the deceased Dhanraj, respondent No. 3 is the mother of the deceased Dhanraj and respondent No. 4 is the widow of the deceased Dhanraj. On the basis of the contentions raised by the respondents in the written statement, issues have been framed by the learned Civil Judge, Senior Division, Bhandara. I have seen the issues. There are about five issues framed by the learned Civil Judge, Senior Division, Bhandara. Issue No. 1 is regarding the entitlement of the plaintiffs to receive the amount under the policies. Issue No. 2 is regarding the entitlement of respondent No. 4 to get the entire amount of policies. Issue No. 3 cast burden on respondent No. 1 in respect of nomination in favour of the plaintiffs. Issue No. 4 is regarding the obligation of respondent No. 1 Insurance Company to make payment to the nominee only.

5. This Court, under section 96 of the Civil Procedure Code, is dealing with this matter being the first appeal. This being the first Appellate Court, facts and questions of law are open to be agitated before this Court. This Court is required to frame points for determination according to the provisions of relevant Order 41, Rule 31 of the Civil Procedure Code and record the findings. However, looking to the judgment delivered by the learned Civil Judge, Senior Division, Bhandara, answering Issue Nos. 1, 2, 3 and 4 as "does not survive", I am not inclined to frame points for determination, as required to be framed. It is not necessary for this Court to record any finding on these issues since there is no finding recorded by the trial Court on these issues. One more important aspect is that this Court is remanding the matter, looking to the judgment of the trial Court and, therefore, also I do not wish to record any finding on Issues No. 1 to 4. Therefore, only one point is being framed for determination :

POINTS FOR DETERMINATION FINDINGS. "Whether the learned Civil Judge, Senior No

Division, Bhandara, is justified in holding

that the plaintiffs are required to file an

application for obtai

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