Skip to content


Natesa Chetty Vs. M.K.R. Shanmuga Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1963)1MLJ419
AppellantNatesa Chetty
RespondentM.K.R. Shanmuga Mudaliar
Excerpt:
- - well as the learned district judge on appeal have held that the jewels could not be attached in execution of the decree against the judgment-debtor as it would be contrary to section 11 of the madras pawn-brokers act xxiii of 1943. i am, however, unable to see how those provisions can prohibit a court-sale of the pledged jewels. this is precisely what the appellant seeks to do in the present case. otherwise the court should investigate the best method of realising the proceeds of the jewels pledged in strict accordance with the gold control rules......court should then enquire summarily into the question as to how much would be due under the pledge, i.e., after notice to the judgment-debtor. that amount of debt thus ascertained should be notified in the sale proclamation, in ease such sale is permissible under the existing gold control rules. otherwise the court should investigate the best method of realising the proceeds of the jewels pledged in strict accordance with the gold control rules. if monies are realised the court should give direction for allocating the proceeds after deducting the expenses of sale,--first to the pledge, and later, to the decree which is under execution. i set aside the order of the lower courts and direct the executing court to restore the execution petition to its file and dispose of it in the light.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This Second Appeal arises from the concurrent orders passed by the Courts below, dismissing the application of the appellant for execution of the decree in O.S. No. 467 of 1955 on the file of the District Munsif's Court, Poonamallee. The appellant is a pawn-broker and the respondent is a customer of his. The latter-had pledged with him certain gold jewels for obtaining an advance, which it is now said to come to about Rs. 2,800. Independently of that transaction, the appellant had advanced moneys to the respondent under a promissory note. In respect of that latter claim a suit in execution of decree in which this appeal arises, was filed for recovery of the amount due. In execution of the decree, the appellant applied for sale of the jewels in his possession, subject to his rights as a pledgee. The application was filed under Order 21, Rule 46, Civil Procedure Code. The executing Court as; well as the learned District Judge on appeal have held that the jewels could not be attached in execution of the decree against the judgment-debtor as it would be contrary to Section 11 of the Madras Pawn-brokers Act XXIII of 1943. I am, however, unable to see how those provisions can prohibit a Court-sale of the pledged jewels. Section 11 of the Act relates to redemption of articles pledged with a pawn-broker. That indicates that every pledge will be redeemable within one year from the date of pawning, provided there is no contract between the parties enabling redemption at any longer period. The more important and relevant section is Section 12, which says that a pawned article shall not be disposed of by the pawn-broker otherwise than by sale in public auction conducted in accordance with such rules as might be prescribed under the Act. The contention that found acceptance with the Courts below was that, as attachment and sale by Court in execution of the decree would not be one in accordance with rules prescribed under the Act, it must be held that the executing Court had no power to direct a sale of the pledged articles. There are two answers, to this contention. The first is that Section 12 prohibits only a private sale of the pledged articles, and it has no application to a Court-sale. Secondly, the section relates to sale of pledged articles by the pawn-broker for realising his dues in respect of which the pledge is created and subsists. In the present case, the execution that is sought is in respect of an amount which is due under a decree of Court and which is independent of the debt, for which the articles were pledged. The only question is whether there is a property of the judgment-debtor with the decree-holder, which can be brought to sale. Admittedly these jewels were pledged as security for the repayment of the original debt, which we shall refer to as the debt for Rs. 2,800. The judgment-debtor will have an undoubted right to redeem that pledged article, and, in case of sale of the pledged article by the pawnee, the judgment-debtor will be entitled to receive the surplus of the sale proceeds after payment to the creditor. This interest can certainly be attached in execution of any other decree against that judgment-debtor. This is precisely what the appellant seeks to do in the present case. I cannot see how the Court-sale held in execution of a decree for payment of money can be said to be against the provisions of Section 12 of the Pawn-brokers Act. But, at the same time, I consider that it is desirable that certain safeguards should be given. If the appellant wants to bring the properties to sale, he should deposit the properties in Court and also file a statement of his claim in respect of which the pledge has been created. Due notice of his claim under the pledge should be given to the judgment-debtor. The Court should then enquire summarily into the question as to how much would be due under the pledge, i.e., after notice to the judgment-debtor. That amount of debt thus ascertained should be notified in the sale proclamation, in ease such sale is permissible under the existing Gold Control Rules. Otherwise the Court should investigate the best method of realising the proceeds of the jewels pledged in strict accordance with the Gold Control Rules. If monies are realised the Court should give direction for allocating the proceeds after deducting the expenses of sale,--first to the pledge, and later, to the decree which is under execution. I set aside the order of the lower Courts and direct the executing Court to restore the execution petition to its file and dispose of it in the light of the observations made above.

2. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //