JUDGMENT S.D. Khare, J. - This is an application in revision filed on behalf of the Union of India. Swadeshi Iron and Steel Private Ltd. (opposite party) had instituted a suit for the recovery of Rs. 635-74 by way of damages and interest for short delivery of 23 maunds 8 seers of Tata fiat rolled strips. The suit was decreed by the Judge, Small Cause Court, Kanpur, on 28-2-1963 for Rs. 628-07 only. The revision application filed before the District Judge was dismissed by the order of the Additional District Judge, Kanpur, dated 14-7-1964. 2. The present revision application is based mainly on the ground that the suit against the applicant could not have been decreed because no proper notice under Sec. 77 of the Railways Act had been given to it. 3. The relevant facts leading to this revision application might be briefly stated as follows. A consignment of Tata rolled strips was booked on 13-12-1958 from Tatanagar destination Kanpur. On delivery the said consignment was found short in weight and the plaintiff claimed Rs. 557/67 as the price of the articles short delivered and Rs. 78/07 as interest. The parties, however, agreed that in case the suit was decreed the amount of damages may be fixed at Rs. 550/- only (and not at Rs. 557/67). Notice under Sec. 77 of the Railways Act was sent on 17-6-1958. The main contention of the applicant, therefore, is that inasmuch as the noice under Sec. 77 of the Railways Act had been sen1 by the plaintiff more than six months after the date of the despatch of the goods no decree could have been passed in favour of the plaintiff. 4. Sec. 77 of the Railways Act, prior to its amendment by Act 31 of 1961, read as follows:- "a person shall not be entitled to a refund of overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway." 5. In the present case the goods had been delivered to the railway for carriage on 13-12-1958 when they were booked. In the present case the goods had been delivered to the railway for carriage on 13-12-1958 when they were booked. Therefore notice under Sec. 77 of the Railways Act should have been sent before 12-6-1959. No notice was, however, sent before 17-6-1959. In the circumstances of the case the plaintiffs claim could not have been decreed against the railway administration and the Union of India. 6. Prior to the decision in the case of Governor-General in Council now Union of India v. Musaddi Lal Agarwal, A.I.R. 1961 S.C. 725 there was some conflict of opinion regarding the meaning of the word loss as used in Sec. 77 of the Railways Act. The Full Bench case of the Governor-General-in-Council v. Mahabir Ram, 1952 ALJ 449 resolved that conflict so far as this Court was concerned, and it was held that the word, loss as used in Sec. 77 means not the loss to the owner but loss by the railway administration. That Full Bench decision of this Court was overruled in the case of Governor-General in Council now Union of India v. Musaddi Lal, A.I.R. 1961 S.C. 725 in which it was held that a claim for compensation for non-delivery of goods cannot be regarded to be distinct from a claim for compensation for loss, destruction or deterioration of the goods. It was further held that Sec. 77 of the Railways Act was enacted with a view to enable the railway administration to make enquiries, and, if possible to recover the goods and to deliver them to the consignee and to prevent a State claim. It imposes a restriction on the enforcement of liability declared by Sec. 72 of the Railways Act which prescribes the measure of the general responsibility of a railway administration as a carrier of goods to be that of a bailee under Secs. 151, 152 and 161 of the Indian Contract Act, 1872. A notice under Sec. 77 of the Railways Act was, therefore, held to be necessary in the circumstances of the case in which the consignment of a bale of cloth could not be traced out and was, therefore, not delivered at all at the place of destination. 7. 151, 152 and 161 of the Indian Contract Act, 1872. A notice under Sec. 77 of the Railways Act was, therefore, held to be necessary in the circumstances of the case in which the consignment of a bale of cloth could not be traced out and was, therefore, not delivered at all at the place of destination. 7. It was also held in that case that the provisions of Articles 30 and 31 in the First Schedule of the Indian Limitation Act dealing with, limitation for suits for compensation against carriers could not be protected, on Secs. 72 and 77 of the Railways Act and different points of time from which the period of limitation is to run under those provisions of the Indian Limitation Act could not be, taken into consideration. 8. The learned counsel for the opposite party has however, contended that the plea of the bar of Sec. 77 had been given up by the railway administration and, therefore, it can no longer be availed of by the applicant. In my opinion there is no force in this contention. A perusal of the record will show that when the case was first taken up for hearing on 1st March, 1961, it was mentioned in the proceedings that "the defendant does not press the plea of notices, thus only the following issues arise for determination: - (1) Whether there was short delivery ? Its effect ? "(2) Whether the plaintiff is entitled to get interest ? If so, at what rate? No other issue is pressed". 9. The plaintiff's suit was decreed on 30th March, 1961. A revision application was filed on behalf of the Union of India and one of the grounds taken was that the learned lower court had failed to strike issues regarding the validity and service of the notices under Sec. 77 of the Indian Railways Act and Sec. 80, C. P. C. It was also alleged that the plaintiffs suit was not legally maintainable as no notice as required under Sec. 77 of the Indian Railways Act had been served on the Union of India. The learned Additional District Judge, who decided the revision application, allowed the revision application, set aside the judgment and decree of the trial court and remanded the case so that proper issues may be framed. The learned Additional District Judge, who decided the revision application, allowed the revision application, set aside the judgment and decree of the trial court and remanded the case so that proper issues may be framed. Four new issues were added by the trial court after the remand order and one of these issues was "(3) Whether notice under Sec. 77 Indian Railways Act has been served." The trial Court while disposing f the suit on 23rd February 1963, held that the plea of want of notice under Sec. 77 of the Indian Railways Act had been waived and the suit was therefore "not hit by Sec. 77 of the Indian Railways Act." 10. In my opinion the findings of the learned Judge, Small Cause Court, on the above mentioned point is definitely erroneous. What exactly was the statement made by the counsel for the parties before the trial court on 1st March, 1961 is not at all clear. The matter was however reconsidered at the time of the hearing of the revision application. One of the grounds taken in that revision application was that no notice under Sec. 77 of the Indian Railways Act had been served on the Union of India and no issue had been framed by the trial court on that point. The learned Additional District Judge, who heard and decided that revision application, upheld that contention of the revisionist and after setting aside the ' decree passed by the trial court remanded the suit for retrial after framing proper issues in the case. The effect of the order passed by the revisional court was that the plea of waiver of the notice under Sec. 77 of the Indian Railways Act had not been accepted by that Court. It was no longer open to the plaintiff to contend before the trial court that the aforesaid plea has been waived. The plea of waiver is without an vorce and has to be rejected. 11. In the absence of a notice under Sec. 77 of the Indian Railways Act within six months of the date of the booking the suit against the Union of India could not have been decreed Sec. 77 of the Indian Railways Act clearly bars the decreeing of a claim where no notice under the provisions of that section has been given within the stipulated period. 12. 12. The revision application is allowed, the judgment and decree of the Judge, Small Cause Court, Kanpur, dated 23-2-1963 are set aside and it is ordered that the plaintiffs suit shall stand dismissed In the circumstances of the case I order the parties to bear their own costs throughout.