JUDGMENT A.P. Srivastava, J. - This is a defendants' appeal that arises out of a suit to recover Rs. 18,924 from them. The respondent Lallan Prasad was the plaintiff. He came to Court with the case that on the 10th January, 1946 the defendant No. 1 borrowed Rs. 20,000 from him on the basis of a promissory note. He promised at that time that he would pawn as security for the debt some aeroscraps which he had purchased from the Bamrauli Depot at Allahabad. Besides the promissory note and the receipt, an agreement about the pawn was also executed. The agreement provided that the goods to be pawned would be taken to the plaintiff's house and put there in his custody. The plaintiff, however, alleged that the defendant No. 1 did not abide by this agreement. After taking the money he did not place any goods in the custody of the plaintiff and thus no pawn actually came into existence in pursuance of the agreement arrived at between the parties. The aeroscraps were taken delivery of by the defendant No. 1 from the Bamrauli Depot in various lots. Some lots were removed by that defendant to his house. Some of the goods were, however, stored on a plot adjacent to the Aerodrome. As agreed to between the parties the plaintiff had engaged chowkidars to keep a watch on the goods that were to be pawned with him. When no goods were put in his possession and none were brought to his house in pursuance of the pawn, the services of the chowkidars were made available to the defendant No. 1 so that they could keep a watch on the goods which were stored on the plot near the Bamrauli Depot. The plaintiff, however, continued to pay the salary of the chowkidars. When the defendant No. 1 first wanted to remove the goods he had stored on the plot near the aerodrome without the permission of the plaintiff the plaintiff objected. The father of the defendant No. 1, i.e., the defendant No. 2 Qudrat Ullah, then stood surety for the entire debt of the plaintiff and requested the plaintiff to permit the defendant No. 1 to remove the goods without any objection. Thus both the defendants became liable for the plaintiff's money. From time to time while removing goods the defendant No. 1 made payments to the plaintiff also. Thus both the defendants became liable for the plaintiff's money. From time to time while removing goods the defendant No. 1 made payments to the plaintiff also. After giving credit for the payments made, the plaintiff, alleged that a sum of Rs. 17,970 remained due to him. In addition to that amount the plaintiff claimed Rs. 923-3-0 on account of salary of chawkidars and wages of labourers which he had to pay for the defendants. The plaintiff claimed a decree for both these items together with a third item of Rs. 30-13-0 spent on account of notices. The total amount claimed was thus Rs. 18,924. He claimed this amount from both the defendants. 2. The suit was contested by both the defendants. The defendant No. 1 admitted having borrowed Rs. 20,000 from the plaintiff but said that he had pawned with the plaintiff 147 tons of aeroscraps being of the value of Rs. 35,000 for the debt. He said that the plaintiff was not entitled to claim any amount without delivering back to him the goods which had been pawned. He denied the allegations about the removal of goods made by the plaintiff and said that the plaintiff had himself sold some of the goods. He also denied his liability for the cowkidars' salary or for the other amounts claimed. He said in the end that the interest claimed was excessive. The defendant No. 2 also contested the suit. He admitted having written a letter on the 16th August, 1946 by which he had offered to be surety for the loan but said that the letter was never acted upon and that on the other hand the parties had always acted in contravention of that letter. He said that he could not in the circumstances be made liable as a surety and had been unnecessarily impleaded in the suit. He too said that goods had been pawned to the plaintiff for the loan and that the suit was not maintainable without the plaintiff's accounting for the pawned goods. The trial Court framed the appropriate issues and recorded the following findings:- 1. That Rs. 20,000 was lent by the plaintiff to the defendant No. 1. 2. That there was no completed contract of pledge or pawn, aeroscraps were not delivered to or sold by the plaintiff who had also no aeroscraps of the defendants with him. 3. The trial Court framed the appropriate issues and recorded the following findings:- 1. That Rs. 20,000 was lent by the plaintiff to the defendant No. 1. 2. That there was no completed contract of pledge or pawn, aeroscraps were not delivered to or sold by the plaintiff who had also no aeroscraps of the defendants with him. 3. That the suretyship of the defendant No. 2 was agreed upon by the parties and the agreement really superseded the agreement about the pawn. 4. That the suit was maintainable in view of Section 176 of the Contract Act. 5. That certain chowkidars were appointed by the plaintiff and the plaintiff was entitled to only Rs. 172 on account of their salary. 6. That the rate of interest was not excessive. 7. That the suit was not bad for non-joinder and that the plaintiff was entitled to claim Rs. 17,970 on account of the principal and interest of the amount advanced by him, Rs. 172 on account of the salary of chowkidars and Rs. 30-13-0 on account of cost of notices. As a result of these findings the suit for Rs. 18,142 was decreed with future and pendente lite interest at three percent per annum against both the defendants. The plaintiff was allowed proportionate costs and the defendants were directed to bear own costs. 3. The defendants have come up in appeal and two main contentions have been urged on their behalf. It is contended in the first place that the finding of the learned Civil Judge that no goods had been pawned with the plaintiff as security for the loan was not correct. Goods had in fact been pawned with him and he had not properly accounted for the same. The second contention is that as goods were pawned with the plaintiff, it was not open to him to maintain the suit without accounting for the goods and without being in a position to return them on payment of the amount due to him. It is not disputed that the sum of Rs. 20,000 was borrowed by the defendant No. 1 from the plaintiff and a promissory note and receipt were executed for the amount. It is also not disputed that at the time when this sum was borrowed an agreement Ex. It is not disputed that the sum of Rs. 20,000 was borrowed by the defendant No. 1 from the plaintiff and a promissory note and receipt were executed for the amount. It is also not disputed that at the time when this sum was borrowed an agreement Ex. 3 was executed according to which the defendant No. 1 undertook to pledge as security for the loan aeroscraps which he had purchased from the Deputy Assistant Regional Commissioner, Disposals, Kanpur and of which he was going to take delivery in the near future. That agreement provided that the aeroscraps would be put in the possession of the plaintiff at his own house at the expense of the defendant No. 1 and that the defendant No. 1 would be entitled to remove the goods from time to time and sell them with the consent of the plaintiff after paying the requisite amounts to him. It is also not disputed that the defendant No. 1 actually took delivery of aeroscraps of various kinds from the Disposals authorities at Bamrauli. The contention of the plaintiff is that none of the goods were ever put in his possession and the promised transaction of pawn, therefore, never materialised. From the Disposals authorities the defendant No. 1 had purchased two lots of 147 tons each of aeroscraps. Only the first of these lots had been agreed to be pawned to the plaintiff as security for the loan that was being borrowed from him. The defendant's case is that he took delivery of these 147 tons of aeroscraps from the Disposals authorities and stored them on a land adjacent to the Bamrauli Aerodrome and put them in the plaintiff's possession. The plaintiff appointed his own chowkidars to keep a watch on the aeroscraps stored there which had been put in his possession and whenever the defendant No. 1 wanted to remove any of the scraps so pawned he had to obtain the consent of the plaintiff and even to pay some amount to him. The defendant further says that some of the goods were sold by the plaintiff himself and that he threatened to sell the remaining goods also. 4. The defendant further says that some of the goods were sold by the plaintiff himself and that he threatened to sell the remaining goods also. 4. Having come to Court with the case that no goods had ever been put in his possession as security for the loan, as soon as the suit was filed the plaintiff made an application for the attachment before judgment of several properties of the defendants including the aeroscraps that were lying near the Bamrauli Aerodrome. The learned Civil Judge at first issued attachment before judgment as prayed but when the defendants appeared and objected he discharged the attachment by an order dated the 6th Jan. 1948. The ground on which he withdrew the attachment was that: "The plaintiff was in possession of the defendants' property of value more than the claim of the plaintiff in the suit and that the defendant No. 2 had already stood surety for the plaintiff's money." Later the Calcutta National Bank filed a suit for the recovery of its dues from both the defendants. It applied for the attachment before judgment of certain aeroscraps which were lying near the Bamrauli Aerodrome. The attachment was ordered and a commissioner was appointed to make the same. An objection to the attachment was filed by one Abdul Halim on the ground that a part of the attached aeroscraps belonged to him. That objection was allowed and the aersocraps attached were re leased in favour of Abdul Halim. When the aeroscraps were attached at the instance of the Calcutta National Bank the plaintiff made a second application for the attachment of the same goods. This application was also opposed on behalf of the defendants and was rejected on the 24th Feb. 1949. A third application was again made for attachment of the defendants' goods but was rejected on the 23rd May, 1949. The plaintiff thus failed in his various attempts to get the aeroscraps of the defendants attached. In support of his case that no goods were pawned to him or put in his possession that plaintiff examined himself and several witnesses. * * * 5. After a consideration of this entire evidence the learned Civil Judge came to the conclusion that no goods had in fact been pawned to the plaintiff and no aeroscraps had been put in his possession. * * * 5. After a consideration of this entire evidence the learned Civil Judge came to the conclusion that no goods had in fact been pawned to the plaintiff and no aeroscraps had been put in his possession. We have been taken through the entire evidence and have heard learned counsel for the parties at length. We regret we are unable to endorse the finding of the learned Civil Judge on this point. There are several facts which effectively militate against the case of the plaintiff that no aeroscraps were ever put to his possession. The important ones out of these facts are: - * * * 6. In the above circumstances we have no difficulty in rejecting the plaintiff's case that no scraps were pawned to him or put in his possession as security for the loan. The defendants' case that the scraps purchased from the Disposals authorities as the first lot were pawned with the plaintiff appears to be distinctly preferable. 7. The defendant No. 2 did stand surety for the loan by writing the letter Ex. 4. But it is not correct that this superseded the agreement about the pawn. In this letter it was expressly mentioned by the defendant no. 2 that he was standing surety for the loan of Rs. 20,000 in respect of which the aeroscraps at Bamrauli had been pawned. (Jo rupaiya bis hazar mere larke Fatehullah ne tarikh 20 July 1946 ko ap se qarz liya hai aur Bamrauliwala mal girwin rakkha hai uske dene ka main bhi Fatehullah ke sath zimmedari leta hun.). The personal security offered by the defendant No. 2 was, therefore, in addition, to, and not in supersession of, the pawn already made. The learned Civil Judge was, therefore, not justified in his view that as the defendant no. 2 stood surety the pawn was not insisted upon by the plaintiff. The next question is as to whether the plaintiff has accounted for the scraps which were pawned with him and is in a position to return them to the defendant no. 1 on the payment of his debt. If not, what is the effect on the suit. 8. The plaintiff has not attempted to account for the goods pawned to him. 1 on the payment of his debt. If not, what is the effect on the suit. 8. The plaintiff has not attempted to account for the goods pawned to him. On the other hand, he denied the pawn altogether and came to Court with the case that no goods had been put in his possession at all. This stand, as we have shown, is clearly wrong. Nor has the plaintiff succeeded in showing that all the stores that were pawned to him were either taken away by the defendants or that they were attached at the instance of the Calcutta National Bank and thereafter released in favour of the defendants. The plaintiff has thus not accounted for the goods pawned to him. Nor is he, according to his own case, in a position to return the goods after realising his dues, The effect of this in-ability is that the plaintiff cannot be held entitled to maintain an action for his debt. This follows from what was laid down by the House of Lords in Trustee of the Property of Bllis and Co. v. Dixon-Johnson, 1925 AC 489. Viscount Cave, L. C. observed in that case: - "I have always understood the rule in equity to be that, if a creditor holding security sues for his debt, he is under an obligation on payment of the debt to hand over the security; and if, having improperly made away with the security, he is unable to return it to his debtor, he cannot have judgment for the debt." Lord Buckmaster agreed and said: - "Had all the admitted facts been stated on that endorsement the action would have been demurrable, because the plaintiffs were not in a position to hand over the securities, and consequently were not able to maintain the action. It is perfectly true that originally such an action was maintainable at law and was restrained in equity, but now whenever the principles of law and of equity are in conflict the principles of equity prevail." 9. The Courts in India are Courts of equity as well as Courts of law and the well settled principles of equity are to be enforced by them. The Courts in India are Courts of equity as well as Courts of law and the well settled principles of equity are to be enforced by them. It was, however, urged that in view of Section 176 of the Indian Contract Act the plaintiff can maintain the action even though he denies the pledge and is not in a position to redeem the goods. That section reads as follows:- "If the pawner 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." 10. This section gives an alternative remedy to a pawnee. He can either sell the things pledged and have his debt satisfied or he can bring a suit upon the debt. In the present case the plaintiff has not followed the first alternative. He has preferred the second one. An essential condition of the second alternative, however, is that when a suit is filed upon the debt the goods secured must be retained. If the goods are not retained as a collateral security, if the pledge is denied altogether and it is said that no goods were pawned at all and if the pawnee is not in a position to return the goods on the payment of his dues one of the essential conditions of that alternatives becomes absent and the suit becomes defective. As we read the section it does not permit a pawnee to maintain a suit on his debt without returning the goods pledged as collateral security. He cannot deny the pledge and still claim his money. In that way he will be depriving the pawnor of his goods and at the same time making him liable for the debt. The agreement of pawn implies that on payment of the debt the pawnor will get back his goods. He cannot deny the pledge and still claim his money. In that way he will be depriving the pawnor of his goods and at the same time making him liable for the debt. The agreement of pawn implies that on payment of the debt the pawnor will get back his goods. If the goods are not available and the pawnee cannot return them he cannot compel the debtor to pay the debt. The goods pawned may be an usually are of greater value than the amount of the debt. If the pawnee is allowed to claim his money without returning the pawned articles or accounting for it the pawnor will suffer greater loss than he had bargained for. In the circumstances of the present case therefore, it appears to us that the suit of the plaintiff for the debt was not maintainable and could not succeed. 11. Under the agreement entered into between the parties, however, the defendant No. 1 agreed to pay the charges of the chowkidars who were engaged for keeping a watch on the pawned goods and the defendants were, therefore, liable to pay the sum of Rs. 172 which has been found to be due to the plaintiff on account of the salaries of the chowkidars. The claim on account of cost of notice must, however, fail because the main part of the claim has been found to be unsustainable. 12. The result is that the appeal succeeds in part. The amount for which the suit has been decreed must be reduced to Rs. 172 only. The decree of the learned Civil Judge will, therefore, stand only for that amount with proportionate costs and future and pendente lite interest at three per cent. per annum. The rest of the claim shall stand dismissed and the defendants will get costs in proportion to their success.