JUDGMENT : 1. This second appeal of the defendants arises under the following circumstances. The plaintiff firm transacts business as commission agents and the defendants purchased Alsi through the agency of the plaintiff firm. According to the plaint 448 Pallas' of 'Alsi' were purchased by the defendants on 26-5-43 from other persons and were pawned with the plaintiff firm. The plaintiff had advanced the purchase money to the extent of Rs. 16,986-8-3. The defendants deposited Rs. 4,000 in this account. After some time the plaintiff firm asked the defendants to deposit more money informing them that the price of 'Alsi' was going down and that they should deposit more money otherwise the 'Alsi' would be sold and if there was any loss the balance would be recovered from the defendants. On 27-1-44 the defendant 1 Surilal sent a reply that there should be no hurry in the matter as he was reaching Shivpuri on 10-2-1944 and that he would issue suitable instructions after reaching the place. The defendants, however, kept quiet. The plaintiff firm then served a notice on 29-10-44 on one of the defendants for depositing money within 12 hours stating therein that otherwise the goods would be sold and that if there was any loss, the balance would be recovered from the defendants. It is alleged in the plaint that the defendants did not turn up and so the plaintiff firm on 2-11-44 sold the 'Alsi' at a loss, at the rate of 24 rupees per Talla' and credited Rs. 9,172-6-3 in the account of the defendants. The plaintiff firm therefore filed this suit for Rs. 3,814-2-0 plus interest at the rate of Re. 0-8-0 on this amount. The defendants resisted the suit on several grounds. The main grounds were that they had purchased only 148 Pallas' of 'Alsi' and not 448 Pallas' as alleged, that the plaintiff firm did not sell the property to anybody, and that no notice was served on the defendants under S. 176, Contract Act. 2. The Sale of Goods Act was not in force in Gwalior State and so the provisions of the Contract Act are to be considered. 3. The trial Court held that the defendant's contention about 148 Pallas' was not correct, that the notices had been served on the defendants under S. 176. 2. The Sale of Goods Act was not in force in Gwalior State and so the provisions of the Contract Act are to be considered. 3. The trial Court held that the defendant's contention about 148 Pallas' was not correct, that the notices had been served on the defendants under S. 176. Contract Act but that the resale of goods by the plaintiff firm to one Jeewanlal has not been proved and that the story of resale of the property to Jeewanlal was entirely fictitious. The trial Court further found that the Co-operative Bank of Shivpuri had become creditor of the plaintiff firm and that the said Bank got these goods sold to several persons from 27-3-1945 to 4-4-1945. The trial court, however, passed a decree in favour of the plaintiff firm for Rs. 2,978-0-0 with costs and future interest at the rate of Re. 1 per cent, per month. The learned District Judge in appeal upheld the findings of the courts below but reduced the amount by Rs. 608-9-3. So the defendants have come in second appeal to this Court, under S. 525, Gwalior Civil Procedure Code, against the decree for Rs. 2,369-6-9 passed by the District Judge against them. 4. Much argument was addressed to me by Mr. Anand about the validity of the notices. In my opinion there is abundant evidence to show that a notice on 26-1-44 had been given to Surilal and on 27-1-44 a reply (Ex. P. 4) had been given by the said defendant, then, there was one notice served on the other defendants on 29-10-44. I do not think there is any force in the contention about the validity of the notices within the meaning of S. 176, Contract Act and this point must fail. 5. I am also satisfied that the defendants had purchased 448 Pallas' and not 148 Pallas' as alleged by them. 6. Mr. Shivdayal, counsel for the respondent, contended that the finding of the two courts below about sale of these goods to Jeewanlal is wrong. I do not think there is sufficient material on record to disturb his concurrent finding of fact. The depositions of Jeewanlal and that of Amichand have been held to be unreliable. Jeewanlal could not produce his 'Khata' and 'Pakki Rokad' and there were material discrepancies between his statement, the statement of the plaintiff, and the statement of Amichand Broker. I do not think there is sufficient material on record to disturb his concurrent finding of fact. The depositions of Jeewanlal and that of Amichand have been held to be unreliable. Jeewanlal could not produce his 'Khata' and 'Pakki Rokad' and there were material discrepancies between his statement, the statement of the plaintiff, and the statement of Amichand Broker. I am, therefore of opinion that the finding of the two Courts below that the goods were not sold as alleged in the plaint is correct and cannot be disturbed in this second appeal. On the other hand, it is amply proved from the evidence of Shankar Sahai, Manager, Co-operative Bank, Shivpuri, and from Prasanna Chand that the plaintiff firm was indebted to the Co-operative Bank and these goods were mortgaged to the Bank by the plaintiff firm and the Bank sold these goods in four lots i.e., one lot at the rate of Rs. 27-4-0, another at Rs. 28-0-0 and the third and the fourth lot at Rs. 20-0-0 per 'Palla'. Prasanna Chand purchased these 'Pallas' of "Alsi' from the Bank and his evidence has been believed by both the Courts below. Nathuram, a member of the plaintiff firm, admits that ultimately the goods were sold by the Co-operative Bank to Prasanna Chand but he deposed that the goods had become the property of the plaintiff firm which is not true as the story of sale to Jeewanlal and resale to the plaintiff firm is absolutely false. 7. The question then arises, and this is very important, that if the goods were not sold to Jeewanlal by the plaintiff firm as was alleged in the plaint, can this suit be decreed at all ? 8. In my opinion, where there is a gross mis-representation regarding the basis of the suit the plaintiff must be non-suited. Then, the right of a pawnee to sell the goods is governed by the provisions embodied in S. 176, Indian Contract Act which runs as follows : "If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged on giving the pawnor reasonable notice of the sale. "If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor". It is obvious that the pawnee has been given a right to sell the goods pleaged after giving a reasonable notice to the pawnor. But in case he does not himself sell the property, but allows, his creditor to sell it and if any loss is sustained, the pawnor will not be held liable to pay the balance. 9. The words "such sale" in the last para of S. 176 are significant and mean that no liability can be fastened on the pawnor for loss, if any, if the pawnee does not exercise his right of sale according to S. 176, Contract Act. 10. Even on general principles the suit could not have been decreed as the pledgee never had the absolute ownership in the goods at law and his equitable rights cannot exceed his legal title (Per Jessel M. R. in 'Carter v. Wake', (1877) 4 Ch D. 605 (A). The deposit of goods is nothing but a security for the debt and the right to property deposited vests in the pledgee only so far as is necessary to secure the debt. In fact, a pledge is a security intermediate between a lien and a mortgage (Per Willes, J. at p. 302 Halliday v. Holgate', (1868) 3 Ex. 299 (B). The pledge, of course, constitutes something more than the right of lien and the pledgee is at liberty to reimburse himself by the sale of goods deposited. But he has no power to mortgage these goods to his own creditor or get them auctioned by his creditor without getting the concurrence of the pawnor to all these proceedings. In my opinion in the present case the sale of the pawnor's goods was wholly unauthorised and the plaintiff's suit is manifestly misconceived. 11. I would, therefore, allow the appeal and dismiss suit with costs throughout. Appeal allowed.