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Mopidevi Ramakotayya Vs. Pushadapu Manikyam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 247 of 1958
Judge
Reported inAIR1961AP312
ActsProvincial Small Cause Courts Act, 1887 - Schedule - Article 15
AppellantMopidevi Ramakotayya
RespondentPushadapu Manikyam and ors.
Appellant AdvocateC.V. Narasimha Rao, Adv.
Respondent AdvocateInnayya Reddy, Adv. for ;O. Chinnappa Reddy, Adv.
DispositionPetition dismissed
Excerpt:
civil -maintainability of suit - schedule 2 article 15 of provincial small cause courts act,1887 - plaintiff pledged certain jewel with defendant father and borrowed money - plaintiff filed suit for delivery of pledged property - issue whether suit was not maintainable by court - held, suit for redemption of pledged article is not a suit for specific performance of contract and not exempted from jurisdiction of court. - - the decisions in 56 ind cas 877: (air 1919 oudh 73j and 61 ind cas 803 :(air 1921 oudh 124(1)) were expressly referred to and dissented from as no longer good law. manikyam who was not a party to that suit and does not affect his right to get a decree against the first defendant as well as the second defendant......court in : air1959mp97 and hold that the suit is maintainable on the small cause side and that the decision of the learned additional district munsif in the matter is right. 6. the only other contention raised by the learned advocate for the petitioner before me is that jewel is not with the first defendant and that the decree should have been given only against the second defendant and not against the first defendant. in this connection, it is brought to my notice that in a suit o. s. no. 236/54 which had been filed by the second defendant against the first defendant for partition of family property, no decree was passed in respect of moveable claimed by the second defendant. but the decision in o. s. no. 236/54 is not binding on the present plaintiff, p. manikyam who was not a party to.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. This is a petition to revise the judgment and decree of the learned District Munsif, Masulipatam in S. C. S. No. 1038 of 1956.

2. The material facts are briefly these: Manikyam as the sole plaintiff filed S. C. S. No. 1038 of 1956, against two defendants. The first defendant is the son of Venkataswamy by his first wife. The second defendant is the second wife of the deceased Venkataswamy. The case of the plaintiff was that he pledged a certain jewel 'Kasula Peru' on 24-6-53 with Venkataswamy, borrowed a sum of Rs 230/-which was repayable with interest at 6 per cent per annum and that he was entitled to redeem the jewel.

He asked for a decree against the two defendants for delivery of the pledged article after he deposited the sum due under the loan or, in the alternative, for the defendants to pay him the value of the gold article with interest thereon after deducting the amount due under the loan. The first defendant filed a written statement denying the pledge and contending that Venkataswamy and his wife, the second defendant were living in a village different from the one where the first defendant lived, that the suit had been filed by the plaintiff falsely at the instigation of his enemies and that it was not maintainable on the small cause side as it wag for recovery of specific move-able property.

The second defendant alleged that she was not aware of the pledge, that the first defendant and Venkataswamy were looking after the family affairs, that, after the death of Venkataswamy, the plaintiff came and asked for the jewels and that the first defendant then acknowledged to the plaintiff that he (D. 1) had the jewel with him and was willing it to be redeemed. It was also pleaded that the plaintiff and the first defendant were colluding together to cause her loss and if there was to be any decree, it should be only against the share of the first defendant.

3. Both sides let in oral and documentary evidence. The learned Additional District Munsif, after a careful appreciation of the evidence, awarded a decree, in favour of the plaintiff against both the defendants so as to make them liable, to the extent of the assets of Venkataswamy, which came to their hands, for the return of the jewel or its value fixed at Rs. 520/- and made the plaintiff liable for the loan amount fixed at Rs. 292-12-7. The second defendant has not filed any revision petition.

4. The main contention pressed before me on behalf of the first defendant is that the suit is not maintainable on the small cause side. Reliance is placed on the decision in Mata Din v. Madho Charan, 56 Ind Gas 877: (AIR 1919 Oudh 73) wherein it was held by Lindsay, J. C. that a suit for the return of an article lent by the plaintiff to the defendant or, in the alternative, for compensation is not cognisable by a Court of Small Causes. Subsequently in Babu Ram v. Deputy Commr. of Hardoi, 61 Ind Cas 803 : (AIR 1921 Oudh 124 (1)) the same learned Judge, Lindsay, J. C. held that a suit for the recovery of specific movable property fell within the scope of Art. 15 of Schedule II of the Provincial Small Cause Courts Act and was, therefore, excluded from the cognisance of a Small Cause Court.

5. On the other hand, my attention is drawn by the learned counsel for the respondent to a decision of the Division Bench of the Madhya Pradesh High Court in Jodhai Ramdayal v. Bharat Sukhdi, : AIR1959MP97 wherein a contrary view was taken. There it was held that a suit for redemption of pledged articles is not a suit for specific performance of contract and as such is not excepted from the jurisdiction of the Small Cause Court under Article 15, Schedule II, of the Provincial Small Cause Courts Act,

Their Lordships agreed with the decision in Zamin Abbas v. Lachhmi Narain, AIR 1927 Oudh 476 that a pledge is complete when money is advanced to the pawner and the goods pledged are delivered to the pawnee and that thereafter the rights of the parties are governed by Sections. 172 to 181 of the Indian Contract Act. Therefore, where the pawner sues for redemption of the goods pledged, whether after a valid tender of the loan or on ascertainment of the amount due, he cannot be deemed to be seeking a relief of specific performance of the contract.

He is, in the one case, suing for his goods simpliciter, and in the other, suing for them, coupled with an offer of the amount due on the loan, in either case, 'the suit is for delivery of specific goods. The decisions in 56 Ind Cas 877: (AIR 1919 Oudh 73J and 61 Ind Cas 803 : (AIR 1921 Oudh 124(1)) were expressly referred to and dissented from as no longer good law. I respectfully agree with the decision of the Madhya Pradesh High Court in : AIR1959MP97 and hold that the suit is maintainable on the small cause side and that the decision of the learned Additional District Munsif in the matter is right.

6. The only other contention raised by the learned Advocate for the petitioner before me is that jewel is not with the first defendant and that the decree should have been given only against the second defendant and not against the first defendant. In this connection, it is brought to my notice that in a suit O. S. No. 236/54 which had been filed by the Second Defendant against the first defendant for partition of Family property, no decree was passed in respect of moveable claimed by the second defendant. But the decision in O. S. No. 236/54 is not binding on the present plaintiff, P. Manikyam who was not a party to that suit and does not affect his right to get a decree against the first defendant as well as the second defendant. The finding of the lower court is based on a consideration of the evidence let in before it. I do not find any room or need to interfere with it.

7. In the result, I dismiss the revision petition with costs.


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