Mahalinga Nadar vs Ganapati Subbien

Subrahmania Aiyar and Benson, JJ.—There can be no question but that the plaintiff is entitled to sue for the sale of the property pledged to

him, notwithstanding that he is also entitled u/s 176, Indian Contract Act, to sell the property without reference to the Court.

It is obvious that a right to sue for the sale of the property exists even in the absence of a right to sue for a personal decree against the debtor for

the money lent. It would be clearly so if it had been agreed between the parties that no personal liability for the debt was to accompany the pledge

of the jewels.

It would follow therefore that in a case where both rights exist they are concurrent rights and the right to proceed against the property pledged is

not merely accessory to the right to proceed against the debtor personally.

This has been clearly laid down in regard to the right to proceed against Immovable property hypothecated for a debt, Chetty Goundan v.

Sundaram Pillai 2 M.H.C.R. 51 and Kristna Row v. Hachapa Sugapa 2 M.H.C.R. 307. We can see no distinction in principle between that case

and cases of pledge, mortgage or hypothecation of moveable property. The attention of the Judges who decided the case Venkoba v. Subbanna

ILR 11 M. 152 was not drawn to these earlier decisions. They were followed in the Full Bench decision which is relied on in Nim Chand Baboo v.

Jagabundhu Ghose ILR 22 C. 21 when the learned judges dissented from Vitla Kamti v. Kalekara ILR 11 M. 153. We think that the law is

correctly laid down by the Calcutta High Court in that case. It has been followed in Allahabad in Madan Mohan Lal v. kanhai Lal ILR 17 A. 284.

We accordingly answer the question referred to as follows:

The claim to proceed against the property pledged is governed by Article 120, and the claim to proceed against the debtor personally is

governed by Article 57 of the second schedule of the Limitation Act.

Daives, J.

This suit was brought for the recovery of money lent to the defendant, and a decree was prayed for (1) directing the defendant to pay the

amount, and (2) ordering the sales of the property pledged to the plaintiff by him and payment of the claim out of the sale-proceeds. So far as the

suit was for a personal decree against the defendant, if was admittedly barred under Article 57 of the second schedule of the Limitation Act, and

so far as it was for a sale of the pledged property, I am of opinion as it was ruled in Villa Kamti v. Kalekava ILR 11 M. 153 that this was merely

an incident in the nature of an accessory to the right to recover the debt "" which became barred with the right of suit for that debt.

The case here, is, however, different in one respect from that just quoted. There the property was only hypothecated. Here there was a ""pledge

within the meaning of Section 172 of the Indian Contract Act, and the rights of the pawnee (the plaintiff) are governed by Section 176 of that Act--

that is, the plaintiff could either sue upon the debt, retaining the pledge, as a collateral security, or he could sell the thing pledged, on reasonable

notice to the defendant. His right of suit was barred by limitation, but his right of sale still remained and this was a right secured to him by law which

he could exercise without suit. Hence, the suit was not maintainable as there was no necessity for it. This point does not appear to have been

considered in Nimbhand Baloo v. Jagabundhu Ghose ILR 22 C. 21 and Madan Mohan Lal v. Kanhai Lal ILR 17 A. 284.

My answer to the reference accordingly is that, so far as the suit was a suit for recovery of the money personally from the defendant, it was

barred under Article 57 of the 2nd schedule of the Limitation Act, and so far as it was a suit for sale of the pledged goods it did not lie, and

therefore no question as to limitation arises.