BIND BASNI PRASAD, J.

( 1 ) HAVING regard to the conflict of authorities on the interpretation of Section 77, Railways Act we have arrived at the conclusion that this case should be referred to a Full Bench.

( 2 ) BRIEFLY the facts are that two consignments, one of 246 bags and the second of 316 bags--total 562 bags of rice were made from the railway station Canning on the Bengal and Assam Railway to Dohrighat on the O. T. Railway on the 30th and 31-7-1942. These consignments never reached the hands of the plaintiffs and then they instituted a suit for the recovery of Rs. 9,500 as compensation. Learned Civil Judge had decreed the claim for Rs. 8,072-10-3 only.

( 3 ) ONE of the points raised in defence was that notice under Section 77, Railways Act had, not been given in the manner provided in Section 140 of the said Act to the three railways administrations namely: The Bengal and Assam Railway, the Best Indian Railway and the O. T. Railway. The contention on behalf of the plaintiffs-respondents was that according to Section 77 notice is required only when there has been "loss, destruction or deterioration of animals or goods delivered to be carried. " It was argued that non-delivery or misdelivery of goods did not fall within the words "loss, destruction or deterioration. " On this point there is a conflict of authorities not only between the decided cases of this Court but also between the late Chief court of Avadh and this Court. In Sheo Dayal Niranjan Lal v. G. I. P. Rly. Co. , 1927 ALL. L. J. 89, a Division Bench of this Court held that : "the word loss in Section 77, Railways Act includes non-delivery or loss to the plaintiff. " in Secy. of State v. Firm Daulat Ram Makhan Lal, 1937 ALL. L. J. 794, it was held by a division Bench of this Court that where the claim is for non-delivery or misdelivery it is not one for loss and so no notice is necessary under Section 77. In B. and N. W. Rly. Co. , Ltd. v. Special manager, Court of Wards, Balrampur, (A. I. R. 1925 Oudh 419), a learned single Judge of the late Chief Court held that a claim simply for compensation for non-delivery must be understood as including or involving a claim for the loss of goods within the meaning of Section 77 and notice was necessary. In E. I. Rly. Co. v. Kali Charan Ram Prasad, A. I. R. 1922 pat. 106, it was held that in a suit for compensation on account of non-delivery of the goods consigned, Section 77 has no application and the Railway Company is not entitled to any notice in case of non-delivery. Further conflict of authorities on this point is discussed at pp. 582 to 886 of Hari raos commentary on the Indian Railways Act, 1949 Edition. It is desirable that the conflict of authorities so far as this Court is concerned should be set at rest.

( 4 ) LET this case be placed before Honble the Chief Justice for Constitution of a Full Bench to decide it. JUDGMENT OP THE FULL BENCH,. Bind Basni Prasad, J.

( 5 ) THIS appeal first came up before a Division Bench which in view of the conflict of authorities on the interpretation of Section 77, Indian Railways Act referred the case to a Full Bench. The relevant facts are as follows: on 31-7-1942 two consignments, one of 246 bags and the other of 316 bags--total 562 bags of rice--were made from the railway station Canning on the B. and A. Railway to Dohrighat on the o. and T. Railway. The consignments had to pass through the E. I. Railway also to reach their destination. These consignments never reached the hands of the plaintiffs and then they instituted a suit for the recovery of Rs. 9,500 as compensation. The plaintiffs case in regard to their claim for compensation is set out in paras 8, 10 and 12 of the plaint which are as follows:

"8. That the plaintiffs are the party who suffered loss on account of non-delivery of 562 bags of rice consigned to the defendants railways and as such are entitled to sue.

"10. That due to the gross negligence and misconduct of the employees of the defendants railways 562 bag