( 1 ) THIS second appeal arises out of a suit brought against the East Indian Railway for non-delivery of goods. In the grounds of appeal two main questions of law have been raised. One question is that no notice under Section 77, Railways Act was required because this was a case of non-delivery and not a case of loss, destruction or deterioration of goods. The second question raised is that the suit is not barred by time because limitation began to run from the date on which the Railway intimated their failure to deliver the goods and not from the date on which the goods should have been delivered in the ordinary course. These are both important questions of law, and I understand that the first question is up for decision before a Full Bench of this Court in Governor-General in Council v. Mahabir Bam, First Appeal No. 525 of 1944. (ALL ). On this first question there is already a conflict of opinion in views expressed in two cases both of which were decided by Division Benches of this Court. In Sheo Dayal Niranjan Lal v G. I. P. Rly. Co. , 49 ALL. 236, it was held that non-delivery includes loss as that term is used in Section 77, Railways Act, 1890, and notice of the suit under that section was necessary. On the other hand, in Secy. of State v. Firm Daulat Ram Makhan Lal, 1937 ALL. L. J. 794, the reverse view was taken that where a claim is one for non-delivery or mis-delivery it is not a claim for loss and no notice under Section 77, Railways Act is necessary. In view of the fact that there is such a conflict of opinion and that a case in which the same point is involved is already before a Full Bench of this Court. I direct that this appeal may also be laid before Honble Chief Justice with a request that this may also be referred to the same Full Bench so that the parties in this appeal may also have the benefit of putting their point of view before the case is decided one way or the other. The second question of limitation also involves art important, question of law and I would, therefore, suggest that the whole case be referred to the full Bench. Judgment of Full Bench bind Basni Prasad, J.

( 2 ) THIS is a plaintiffs appeal arising out of a suit against the railway administration for the recovery of Rs. 997-3-6 as compensation for non-delivery of one bale of cloth. The bale was delivered to the railway administration on 30-1-1943 at Agra for carriage to the railway station at chola. The case as put forward in the plaint was that on account of the negligence and carelessness of the servants of the railway administration the bale was not delivered to the plaintiff and thereby he suffered the loss. The plaintiff started correspondence with the railway administration in the first week of February 1943. A number of letters passed between the parties, but neither the goods were traced nor was any compensation granted to the plaintiff. On 6-12-1943, that is to say, about 10 months after the delivery of the bale for carriage a notice under 77, Railways Act was sent by the plaintiff.

( 3 ) VARIOUS pleas were taken in defence, but for the purposes of the present appeal it is necessary to set out only two of them, viz. that the suit was not maintainable as no notice under Section 77, railways Act was served within time and that the suit was barred by limitation.

( 4 ) SRI R. R. Rastogi 2nd Munsif, Bulandshahr, who tried the original suit, wrote an exhaustive judgment discussing in detail the case law on the subject. He held that no notice under Section 77, Railways Act was necessary as the suit was not based upon "loss, destruction or deterioration" of goods, but upon non-delivery for other causes. He further held that the suit was not time barred. In the result he decreed the claim for Rs. 882-3-6.

( 5 ) THE defendant-went up. in appeal. Learned Additional Civil Judge held that no notice was in fact sent under Section 77 and that such a notice was necessary. He further held that the suit was barred by limitation.