JUDGMENT Buckland, J. - This case raises a point of some interest for the solution of which no authority, directly bearing upon it, can be cited. The facts are not in dispute. The suit involves a contest between two persons both of whom lent money to the Defendant Baidyanath Dey and in favour of each of whom he executed instruments whereby he hypothecated his printing press. For the sake of simplicity in narrating the few facts that should be stated I will omit reference to the actual loans and when they both were made, as they do not affect the question which has been argued. On the 18th August, 1928, the Defendant Baidyanath Dey hypothecated his printing press to the Plaintiff to secure repayment of a loan with interest thereon at 12 per cent. On the 19th January, 1929, the Defendant Baidyanath Dey hypothecated the same printing press in favour of the Defendant Ashutosh Pyne, also to secure repayment of a loan with interest; thereon. In the year 1930, an order for attachment of the press was made in Suit No. 1090 of 1930, which had been instituted by one Narendra Nath Chowdhury against Baidyanath Dey. The Defendant Ashutosh Pyne instituted a suit against Narendra Nath Chowdhury and Baidyanath Dey upon his instrument of hypothecation and in that suit the printing press was sold and the sale proceeds now lie in Court to the credit of that suit. The attaching creditor no doubt will eventually have to be settled with, but at present I am not concerned with him, and the only question before me is as to priority between the Plaintiff and the Defendant Ashutosh Pyne. It is stated in the plaint and it is not disputed that the press lat all times was in the possession of Baidyanath Dey, or removed by him from one place to another, but nothing turns upon that, neither it has been even remotely suggested that this affects the matter. The instrument of hypothecation, in favour of the Plaintiff, does, not give him any right to take possession. The instrument of hypothecation, in favour of the Plaintiff, does, not give him any right to take possession. The instrument of hypothecation executed in favour of the Defendant Ashutosh Pyne is said to confer that right which, I am informed, is the reason why he instituted proceedings as soon as the order for attachment at the instance of Narendra Nath Chowdhury was made, but be the right of Ashutosh Pyne in this respect what it may, nothing turns upon it--for it has not been contended that not having taken possession in fact, it conferred any priority over the Plaintiff. 2. The only question is that of priority between instruments in which, as the case has been finally presented, there is no difference as to the rights of the Plaintiff and Defendant Ashutosh Pyne. What are those rights? 3. There certainly was no pledge. Pledge under sec. 172 of the Indian Contract Act involves bailment but there was no bailment. Mr. Bose on behalf of the Defendant Ashutosh Pyne has referred me to the definition of hypothecation in Fisher on Mortgage (7th Edition, page 112), where the learned author writes: An hypothecation is a security whereby real or personal estate is appropriated for the discharge of a debt or engagement, but which does not pass either an absolute or a special property in the subject of the security to the creditor, nor any right of possession, but only a right of realization by judicial process in case of non-payment of the debt. 4. I have been referred to Moosa Abdul Habib v. Maung Tun Kyaing ILR 9 Rang. 182 (1931). In that case the learned Judges held that: In respect of moveable property possession is a symbol of title and if a person who has accepted a hypothecation of moveable property without obtaining possession seeks to enforce his right against a subsequent encumbrancer who has exercised the powers which he possesses to obtain possession of the property hypothecated to him, and has sold the goods in execution of a decree, it is incumbent upon the prior encumbrancer to satisfy the Court that the subsequent encumbrancer had notice of the charge to which the first encumbrancer was entitled. 5. This decision in my judgment is not of assistance as it depends upon actual possession. 6. A decision of Sale, J., In the matter of Ambrose Summers, an Insolvent ILR 23 Cal. 5. This decision in my judgment is not of assistance as it depends upon actual possession. 6. A decision of Sale, J., In the matter of Ambrose Summers, an Insolvent ILR 23 Cal. 592 (1896) has been cited in which case, by way of collateral security, the insolvent by letter gave to the Delhi and London Bank a lien over his stock-in-trade, etc, and undertook when called upon to do so to execute an assignment. The learned Judge held that the letter created a good quitable charge on the assets in favour of the Bank. 7. In Haripada Sadhukhan v. Anath Nath De 22 C.W.N. 758 (1918) the matter was considered by Fletcher and Shamsul-Huda, JJ., and Fletcher, J., in his judgment made the following observations: It has not been argued in the present appeal that the law in British India does not permit of a hypothecation of loose chattels except in the method provided by sec. 172 of the Indian Contract Act, that is, the only security that is permitted on loose chattels in the contract of pawn, where the possession of the goods is transferred to the pawnee. That is clearly not so. The Indian Contract Act does not state that the whole of the law of Contract in British India is comprised in the Act. In fact, the preamble of the Act shows clearly that the Act only contains a portion of the law of contract applicable in British India and there is nothing to prevent a person from hypothecating his goods to another person for security The ordinary principles of equity apply in such cases, namely, the question becomes whether there was an intention to create a security and, if there was an intention to create a security, equity gives effect to it. 8. If the matter is decided from the standpoint of the principles of equity, as I conceive it must be, I do not think that there is very great difficulty about it, for in that case the ordinary rule of qui prior est tempore, potior est jure must prevail, and I hold that the Plaintiff is entitled to priority in respect of his hypothecation of the 18th August, 1928, and to a decree for the amount claimed and a declaration in terms of prayers (b) and (c) of the plaint. As regards costs there has been no contest on the merits and I think that the proper order to make is that the Defendant Baidyanath De should pay the costs of the Plaintiff and the Defendant Ashutosh Pyne.