1. Two questions have been referred to us and it will be more convenient to deal with the second one first, 'whether upon the pleadings this suit should be treated as a suit for specific moveable property lost, or as a suit against a carrier for compensation for non-delivery of goods.' If we look at the prayer of the plaint, which asks for the return of the plank and also for Rs. 21-12 being the loss of interest, it may be treated as a suit both for the return of the specific plank and for damages for its detention. But in order to entitle the plaintiff to obtain delivery of specific moveable property by suit and to enforce the decree so obtained by the stringent methods provided in Order XXI, Rule 31, of the Code of Civil Procedure, it is necessary that he should allege and prove facts which entitle him to compel the deliver of the specific moveable under the provisions of Section 11 of the Specific Relief Act, because unless he does so, he cannot have a decree for the return of the specific moveable property. There is no allegation in the plaint that the defendant is in possession of the plank in question and it is obvious from the correspondence that he is not. That being so, the case does not, in our opinion, come within Clause (a) of Section 11 of the Specific Relief Act; and it certainly does not come within Clauses (b), (c) or (d). In so far then as the suit can be regarded as a suit for the return of the specific plank, the plaint discloses no cause of action, and the suit must be dismissed.
2. It may, however, as framed, be regarded as a suit for compensation for failure to deliver the plank in breach of the contract under the bill of lading. That brings us to the first question in the reference, Whether Articles 31, 49 or 115 is applicable to a claim by a consignor against a carrier for the recovery of goods consigned to him, or in the alternative their value, and for interest upon the amount claimed as the value of the goods.' As the Limitation Act of 1877 originally stood, there was a good deal of authority for saying that Articles 30 and 31, which deal with suits against a carrier for compensation for losing or injuring goods and suits against a carrier for compensation for delay in delivering goods, did not apply. We need only refer to the decision of Sir Charles Turner, C.J., and another learned Judge in British India Steam Navigation Co. v. Hajee Mahomed Beack & Co. 2 M.K 107 and the other authorities cited in Danmull v. British India Steam Navigation Co. 12 C.K 477 and Great Indian Peninsula Railway Co. v. Raisett Chandmull 19 B.K 165. This view proceeded largely upon the position of these Articles among a number of other Articles dealing with suits for damages for torts, and in his judgment in Great Indian Peninsula Railway Co. v. Raisett Chandmull 19 B.K 165. Mr. Justice Farran (as he then was) expressed the opinion that this was a rather fallacious test and that in these rulings the Courts had not given effect to the intention of the Legislature, but stated, having regard to the current of decisions, it was rather for the Legislature to make its meaning more clear if it had been misinterpreted than for the Court to run counter to the decisions of the other High Courts. This was in the year 1894 and acting as we cannot doubt on this suggestion, the Legislature in 1899 ammended Article 31 by inserting the words non-delivery of or, so as to make the Article run : against a carrier for compensation for non-delivery of, or delay in delivering goods.' It seems to us that by this amendment the Legislature clearly indicated its intention that Article 31 should apply to a claim against a carrier for compensation for non-delivery of goods, irrespective of the question whether the suit was laid in contract or in tort. Even so it may be, as pointed out by one of the learned Judges who have referred the case, that Article 31 only deals with claims for compensation, and that Article 49 applies when in a proper case a claim is made against a carrier for the return of a specific moveable which, as already pointed out, is not this case. In so far, however, as Article 49 applies to suits 'for compensation for wrongfully taking or injuring or wrongfully detaining the same,' it is in any case inapplicable to the facts here, and even if it were applicable, its operation would be excluded by the provisions of the special Article 31 as amended, on the principle 'generalia specialibus non derogant.'
3. Oar answer to these questions is that the suit must be regarded as a suit for compensation and as such it comes under Article 31.
4. This Letters Patent Appeal coming on for hearing on 7th of August 1915 after the expression of the opinion of the Full Bench, the Court (Spencer and Seshagiri Aiyar, JJ.) delivered the following
5. The Letters Patent Appeal is dismissed with costs.