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1978 DIGILAW 529 (MP)

Central Bank of India v. Santosh Kumar Awasthy

1978-07-06

A.P.SEN

body1978
ORDER A.P. Sen, C.J. - l. This is a decree-holder's revision directed against an order of the 1st Additional District Judge. Bilaspur, dated 8-11-1977. rejecting its application under Order 21, rule 46 of the Code of Civil Procedure. 2. The decree-holder, Central Bank of India, obtained a decree for Rs. 22,133.71 against the non• applicants judgment-debtors on 8-4-1977, towards recovery of the loan advanced on pledgment of goods, i.e., the stock in trade. The decree provided inter alia that the decree-holder should, in the first instance, recover the decretal amount by sale of the pledged goods, before proceeding against the Judgment-debtors personally. The judgment-debtors were given time till 9-5-1977 to payoff the decretal amount. On failure of the judgment-debtors to deposit the decretal amount. on 9-5-1977, the decree-holder filed an application for execution. 3. The State Government of Madhya Pradesh in the Industries Department, had, in the meanwhile advanced a loan of ds. 70,000 to the judgment debtor No.1, Santosh Kumar Awasthy, which he credited to his account with the Bank of Maharashtra, Billaspur Branch, Bilaspur. The decree-holder accordingly made an application under Order 21, rule 46 of the Code of Civil Procedure, for restraining the Bank of Maharashtra from making any payment out of the said sum of Rs. 70,000 to the judgment-debtor No.1, Santosh Kumar Awasthy, until further orders and also for restraining him from withdrawing any amount from the said deposit of Rs. 70,000 with the Bank of Maharashtra. 4. The learned Additional District Judge had earlier granted an adinterim exparte injunction restraining the Bank of Maharashtra, Bilaspur Branch, but by his subsequent order vacated the ad interim ex parte injunction and also rejected the decree-holder's application under Order 21, rule 46 of the Code. 5. The revision must be allowed on the short ground that the learned Additional District Judge acted illegally and with material irregularity in passing the order that he did. He has failed to draw a distinction between a charge and a pledge. In coming to the conclusion that the decree-holder cannot proceed, except in the manner provided in the decree. The learned Additional District Judge has relied upon Fatehchand v. Indian Cotton Co. Ltd. Bombay AIR 1935 Nag. He has failed to draw a distinction between a charge and a pledge. In coming to the conclusion that the decree-holder cannot proceed, except in the manner provided in the decree. The learned Additional District Judge has relied upon Fatehchand v. Indian Cotton Co. Ltd. Bombay AIR 1935 Nag. 129, In that case, a Division Bench of the Judicial Commissioner's Court held that, where a charge is created in the decrce over certain specified properties for the payment of the decretal amount, the decree-holder should first exhaust his remedy against the charged property, before proceeding against any other property. I am afraid, the principle laid down in Fatehand. v. Indian Cotton Co. Ltd., Bombay (supra) is not applicable to the facts of the present case. 6. As a pledgee, the decree-holder Central Bank of India had the option under section 176 of the Contract Act, in the event of default on the part of the pledger, to exercise any of the two rights. viz, (1) the right to file a suit for the recovery of the debt while retaining the pledged goods by way of a collateral security or (2) the right to sell the pledged goods, after giving the pledger a reasonable notice of sale. In a case where both the rights exist in a pledgee, as is clear from the terms of section 176 of the Contract Act, 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. 7. In Mahalinga Nadar v. Ganapathi Subbien ILR 27 Mad. 528, a suit was filed for the recovery of the money advanced to the defendants on the pledge of jewels. The defendants contended that the suit was time-barred. That contention was upheld by the Subordinate Judge holding that Article 57 of the Limitation Act applied; but not Article 120. The plaintiff claimed the amount from the defendant from the proceeds by sale of the jewels. Their Lordships had to consider the applicability of the relevant article of the Limitation Act and in that context had to consider whether a pledge of goods could ask for their sale. Subrahmania Ayyar and Banson, JJ. The plaintiff claimed the amount from the defendant from the proceeds by sale of the jewels. Their Lordships had to consider the applicability of the relevant article of the Limitation Act and in that context had to consider whether a pledge of goods could ask for their sale. Subrahmania Ayyar and Banson, JJ. holding that the claim to proceed against the properties pledged is governed by Article 120 of the Limitation Act, and that the claim to proceed against the debtor personal is governed by Article 57 of that Act, observed : "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 under section 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." It is thus clear that a pledgee is entitled to pray for sale of the goods pledged through Court, even though he is entitled under section 176 of the Contract Act to sell them personally without reference to the Court: Jiwan Das v. Sahu Sarju Prasad, AIR 1945 All. 299 , Haridas Mundra v. National Grandlays Bank, AIR 1963 Cal. 132 . and Bank of Chittoor v. Narysimbulu, AIR 1966 AP 163 8. It is thus clear that section 176 of the Contract Act confers upon a pledgee two rights, in the event of default on the part of the pledgor: (1) Right to file a suit for the recovery of the debt, or (2) for performance of the promise. In each case, he is entitled to retain the pledged goods as and by way of a collateral security. If the pledgee does not file a suit, he is given the right to sell the pledged goods. In each case, he is entitled to retain the pledged goods as and by way of a collateral security. If the pledgee does not file a suit, he is given the right to sell the pledged goods. But before selling the goods, he must give to the pledgor a reasonable notice of sale. Here, the decree merely embodies the right of the pledgee to sell the pledged goods through Court. That does not imply that the decree-holder cannot proceed in any other manner. In Shyamshankar v. Nathuram, 20 MPLC 42=AIR 1934 Nag. 140, Vivian Bose, A.C.J., held that the Code gives the decree-holder the right to decided whether he should execute the decree in one way or the other or both. If the Court considers that he should not exercise the right in the manner he desires, it must give reasons. It is not enough to say that there is property against which he may proceed and therefore he must proceed against that first, for that is precisely what the code states he need not do : Chena Pemaji v. Ghelabhai Narendas, ILR 7 Bom. 143, Hargobind Kishan Chand v. Hakim Singh and Co., AIR 1926 Lahore 110, and Ramchandrarao v. Vithal Keshav, AIR 1948 Bom. 143, Although in all these cases there was a charge created by the decree, the decree-holder sought to attach certain other properties. It was held that the object of the charge being primarily for the benefit of the creditor, the decree-holder can execute the decree in any order he pleases. 9. In the result, the revision succeeds and is allowed. The order passed by the Additional District Judge is set aside and the application filed by the decree-holder, Central Bank of India, Bilaspur Branch, Bilaspur, under Order 21, rule 46 of the Code of Civil Procedure, is allowed. There shall be no order as to costs.