JUDGMENT

Bhide, J. - This is a second appeal arising out of a suit for recovery of Rs. 1,300 as compensation for non-delivery of a consignment booked from Howrah to Delhi. The consignment was booked under risk-note B. The trial Court held that plaintiff has failed to prove that the goods were lost owing to "wilful neglect" on the part of the defendant Railway Company and on this finding dismissed the suit. On appeal the learned District Judge held that "wilful neglect" on the part of 'the Railway Company was established inasmuch as the goods were sent in a wagon which was sealed only with tin shackles but not locked. The appeal was accordingly accepted and the case remanded to the trial Court for disposal of issue relating to the question of damages, which had been left undecided by that Court. From this decision, defendant has filed an appeal.

2. On behalf of the respondent three preliminary objection: were raised firstly that the appeal was not properly instituted inasmuch as it was presented by the Government Advocate without any power of attorney from the Railway Administration; secondly, that the remand by the lower appellate Court was under Section 151, Civil P.C., and not under Order 41, Rule 23, Civil P.C., and hence no appeal lay; and lastly that no second appeal was competent as the finding on the question of "wilful neglect," which is sought to be agitated in this appeal, was one of fact.

3. There is no force in any of these contentions. The East Indian Railway Company which was the original defendant has now come under State management. According to Clause 6, Section 3, Railways Act, the expression "Railway Administration" in the case of a State managed railway includes the "Government." The present appeal has been preferred by the Government Advocate on behalf of the Government as the successor of the Bast Indian Railway Company. The Government Advocate is ex-officio Government Pleader for the whole of this province and under Rule 2, Order 27, Civil P.C., all Government pleaders are authorized to act for Government as their "recognized agents" without any power of attorney: vide Notification 22963 dated 10th December 1917, in the Punjab Gazette dated 14th December 1917.

4. The second contention viz., that the order of remand was under Section 151, Civil P.C., does not appear to be correct. The suit had been dismissed by the trial Court on a preliminary point on the finding that there was no "wilful neglect" on the part of the Railway Administration and the issue as to the question of damages had been left undecided. The lower appellate Court held that "wilful neglect" was proved and remanded the case for disposal on the remaining issue on which no finding had been given by the trial Court The remand was obviously under Order 41, Rule 23, Civil P.C., though the order and the rule have not been specifically mentioned.

5. The last preliminary objection was that the finding on the question of "wilful neglect" by the lower appellate Court was one of fact and hence no second appeal lay. This contention does not seem sound. "Wilful neglect" is not a concrete fact which can be proved by direct the term has a special significance in law. The finding is based on certain facts and the question for determination is whether those facts are sufficient to establish "wilful negligence" in law. It is well established that the proper legal effect of proved facts is a question of law (cf. Nafar Chandra v. Shukur Sheikh A.I.R. 1918 P.C. 92.

6. Coming to the merits of the case: the learned Government Advocate has argued that the learned District Judge's view that the fact that the wagons were merely sealed and not locked amounts to "wilful neglect" is not correct and that the plaintiff has failed to prove that there was any "wilful neglect" on the part of the railway in the proper sense of that expression Mr. Kishen Dyal, on behalf of respondent, on the other hand, contended, that it was incumbent on the railway to prove in the first instan