An appeal by a contractor against an order allowing indemnity under Section 12(2) of the Workmen's Compensation Act, 1923, is not exempt from the requirement to deposit the amount of compensation as required by the third proviso to Section 30(1) of the Act, if the appeal also challenges the basic order awarding compensation to the workman.

( 1 ) A preliminary point of some interest has been taken in this appeal which, in my view, should succeed.

( 2 ) THE appellant is one B. P. Nandy, who was admittedly a contractor under respondent No. 1, the General Manager, East Indian Railway. There was a workman, named Apal Ram, who is respondent No. 2 before us, employed under the appellant and engaged in work which the appellant was doing for the respondent Railway under a contract with that body. The respondent No. 2 suffered a personal injury by accident and claimed compensation from respondent No. 1, the Railway. Thereafter, at the prayer of the Railway, the appellant was brought on the record so that in the event of the workman's claim being allowed an order for indemnity could be passed in his presence under Sub-section (2) of Section 12, if such an order could be passed on the facts of the case.

( 3 ) THE workman's claim succeeded and the operative portion of the Commissioner's order is in the following terms :"his claim is decreed for Rs. 420/- plus costs, plus pleader's fee Rs. 10/- against opposite party No. 1. Opposite Party No. 2 is to indemnify, opposite party No. 1 to the extent of the decretal amount. "the appellant, who has been referred to as opposite party No. 2 in the order I have just read, then preferred the present appeal. He did not deposit the amount of the compensation.

( 4 ) THE preliminary objection taken on behalf of the workman is that the appeal is not maintainable, inasmuch as, in the absence of a deposit of the amount of the compensation required by the third proviso to Section 30 (1) of the Act, no appeal lay from the order passed by the Commissioner. It will be convenient to read at once the proviso relied upon. It runs thus :"provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. "

( 5 ) AS some argument turned before us upon Clause (a), I shall read that clause as well. It runs thus :"an order awarding as compensation a lump sum, whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum. "

( 6 ) THE appellant contended that the third proviso to Section 30 (1) did not apply to the appeal filed by him, inasmuch as it was not an appeal under Clause (a) of the section, but an appeal under Clause (d ). The latter clause runs thus : (d) "an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12. "

( 7 ) IT was contended that the present appeal being an appeal by a contractor and it being an appeal against an order allowing a claim for indemnity, it did not come under the mischief of the third proviso and could be maintained without the deposit of the amount of the compensation.

( 8 ) IN order to see whether the appellant's contention is maintainable, it is necessary to refer to some further facts in the case. It appears that both the opposite parties to the workman's application, namely, the Railway and the contractor, took a common ground to the effect that the job which the contractor was required to do in terms of the contract was not the ordinary trade or business of the Railway. This contention was obviously raised in order to avoid the operation of Section 12 (1) of the Act, but while the present appellant adhered to it, it was not persisted in by the Railway who gave it up. No contention, however, was raised by the appellant that even if an award was made against the Railway, he could not, in any event, be ordered to indemnify the Railway Administration in respect of the amount of compensation awarded. Indeed, the very first line of the material portion of the Commissioner's judgment states that there was no issue between opposite party No. 1 and opposite party No. 2. T