MUKERJI, J.

( 1 ) THIS is a plaintiffs application in revision arising out of a suit filed in the Court of Small causes at Allahabad for the recovery of a sum of Rs. 285/13/6 as damages for the loss of seven packages of betel leaves which had been consigned from railway station Dan-ton to Allahabad. The consignment was despatched on 5-5-1947, and the plaintiff was the-consignee of ten packages, which were the number of packages, that had been despatched to him from Danton. In the usual course the packages were expected at Allahabad but when delivery was sought of the consignment only three packages out of a total of ten were delivered. Delivery of these three packages was taken by a person called Beni Prasad who happens to be a party to this revision also, as opposite party No. 2. It appears that Beni Prasad was a sort of an agent on behalf of the plaintiff to take delivery of his consignments. It appears further that Beni Prasad deeming himself competent to lay a claim for the non-delivery of the seven packages laid a claim against the railway for damages. The railway compromised the claim with Beni Prasad for a sum of Rs. 154/, and a "pay order" was actually drawn up bearing the date 23-11-1947, in favour of Beni Prasad. Fortunately, the plaintiff came to know of this unauthorised activity of Beni Prasad and he wrote to the Railway to say that they had no business to make payment to Beni Prasad in respect of the loss of a part of the consignment which had been booked in the plaintiffs name. On receipt of the plaintiffs letter which was dated 5-12-1047, the Railway stopped making payment to Beni Prasad and the amount of the pay order which had been drawn up in his name, on 29-11-1947, was not given to beni Prasad.

( 2 ) ON 5-7-1947, the suit out of which this revision has arisen was instituted by the plaintiff against the Dominion of India, which under the Adaptation Order has to be read as the Union of india, for the recovery of the sum which I have already mentioned earlier.

( 3 ) ON behalf of the Railway, several defences were raised. One such defence, which I must notice at the outset, was that Beni Pra-sad was a necessary party to the suit. On this objection, on behalf of the Railway, which defended the case in place of the Union of India, Beni Prasad was added as a defendant to the suit. The other defence, which I need notice, was that the claim was barred because notice under the provisions of Section 77, Railways Act, had not been served on the Railway Administration.

( 4 ) THE Trial Judge gave effect to the plea that the suit could not succeed because notice under section 77, Railways Act, had not been given The suit was, therefore, dismissed by the learned judge of Small Causes, Allahabad.

( 5 ) THE plaintiff has come up in revision and it has been contended on his behalf by Mr. Kackar that the view of the learned Judge of the Court below in regard to Section 77, Railways Act, is no more good law in view of two recent Full Bench decisions, in -- governor General in Council v. Mahabir Ram, reported in AIR 1952 All 891 (A) and -- mutsaddi Lal v. Governor General in council, AIR 1952 All 897 (B ). In the first noted Full Bench, it has been held that where non-delivery of goods is due to loss of goods by the Railway Administration or due to their destruction or deterioration, then only notice under Section 77, Railways Act, is necessary, but where non-delivery of goods is due to any other reason, then no such notice is required. The Full bench further held that where the claim is not based upon the loss of the goods by the Railway administration, but upon non-delivery for other causes and the evidence does not establish that there was loss of the goods by the "railway Administration, Section 77 does not apply and such a suit cannot fail for want of notice.

( 6 ) THE second Full Bench to which I have referred, namely the Full Bench in musaddi Lals case, it was held that non-delivery of goods may be due to a variety of ca