The main legal point established in the judgment is the validity of the sale of perishable goods by the railway administration under Rule 7(e) of the 'Rules for warehousing and retention of goods' framed under Section 47(1)(f) of the Indian Railways Act, 1890.

1. The revision petitioner despatched four bundles of dry fish by the Southern Railway represented by the respondent, on the 18th December, 1960, from Vallikkunnu, a railway station in the State of Kerala, to Sagara, a railway station in the State of Mysore, under Way-bill, Ext. A-1. By mistake, the petitioner despatched the Way-bill to a wrong address in Shimoga and it was returned to him un-served. The petitioner then directed his agent at Sagara to take delivery of the goods; but in the meantime, the Station Master at Sagara, had sold the goods in public auction on the 19th January, 1961, and the petitioner's agent could not take delivery. The petitioner thereupon instituted this suit against the respondent for damages for conversion. The suit was dismissed by the Munsiff, who held that the goods have been validly sold by the Station Master, Sagara, under R.7 (e) of the 'Rules for warehousing and retention of goods' framed under S.47 (1) (f) of the Indian Railways Act, 1890. The contention of the petitioner in revision is, that the sale was unauthorised and invalid and therefore the respondent is liable.

2. The goods consigned being dry fish, are of course perishable goods. Exts. B-3 and B-4 are two communications dated the 11th January, 1961 and the 17th January, 1961 addressed by the Station Master, Sagara to the Station Master, Vallikunnu, which described the condition of the goods at the time by the code word 'Kismet' meaning, as dw. 2 has stated, "emitting foul smell". dw. 2 has also sworn that water was oozing from the bundles which is clearly indicative of an advanced state of decay and deterioration. R.7 (e) which was applied by the Munsiff reads as follows:

7 (e). Perishable articles unclaimed or not taken delivery of, will be disposed of by auction at owner's risk and expense by the Station-master of the station at which they may be left after the expiry of 24 hours or earlier if they are, or are likely to become, offensive."

Though in his judgment, the Munsiff did not say in so many terms, that the goods had become 'offensive', it is quite clear from the discussion in it, that he was definitely of the view that the goods had become offensive, within the meaning of the rule.

3. What was contended for the petitioner by learned counsel was, that the above rule has no validity, because the power of sale is conferred by S.56 of the Act, and this case does not fall within its ambit. That section consists of two parts and reads as follows:

"56 (1) When any animals or goods have come into the possession of railway administration for carriage or otherwise and are not claimed by the owner or other person appearing to the railway administration to be entitled thereto, the railway administration shall, if such owner or person is known, cause a notice to be served upon him, requiring him to remove animals or goods.

(2) If such owner or person is not known, or the notice cannot be served upon him or he does not comply with the requisition in the notice, the railway administration may within a reasonable time, subject to the provisions of any other enactment for the time being in force, sell the animals or goods as nearly as may be under the provisions of the last foregoing section, rendering the surplus, if any, of the proceeds of the sale to any person entitled thereto".

Referring as this does to the previous section, sub-sections (1) and (2) of the latter, viz., S.55, may also be extracted:

"55 (1) If a person fails to pay on demand made by or on behalf of a railway administration any rate, or other charge due from him in respect of any animals or goods, the railway administration may detain the whole or any of the animals or goods or, if they have been removed from the railway, any other animals or goods of such person then being in or thereafter coming into its possession.

(2) When any animals or goods have been detained under sub-section (1), the railway administration may sell by public auction, in the case of perish