Lancelot Sanderson, C.J.
1. In this case a Rule was issued calling upon the opposite party to show cause why the order complained of should not be set aside or why such other order should not be passed as to this Court might seem fit.
2. The order in question was an order made by the learned Subordinate Judge of 24-Parganas to this effect: 'The defendant appears to have pawned some of the articles in suit (that is 6 chooris set with stones). He must make arrangements to produce the same in Court within a month.'
3. The suit was one in which the plaintiff was claiming a right to redeem certain articles which he had pledged with the defendant.
4. One of the defendant's defence was that the plaintiff had no right to redeem the articles, inasmuch as there had been a settlement between the parties and as a part of that settlement the plaintiff had abandoned his right to redeem and that consequently the articles in question were the property of the defendant.
5. In that suit the plaintiff made an application asking that the defendant should be ordered to produce in Court the unredeemed portion of the pledged articles, and that the same should be placed in the custody of the Court and, then there was an alternative relief asked, with which I need not deal. In the petition the plaintiff alleged, amongst other things, that he believed that the defendant had been wrongfully dealing with the ornaments and had parted with the possession thereof.
6. The defendant asserted that since the adjustment of the suit, that is the alleged settlement to which I have already referred, the defendant had been dealing with the jewellery as his own property having sold some of them, broken up some others and sold in part and raised money for his own purposes on a few of them along with other jewelleries
7. It does not appear from the affidavit what the particular articles which the defendant said he had pledged were, but we are informed by the learned Counsel for the plaintiff that the defendant stated in the lower Court that the articles which he had pledged were six chooris and it is obvious that the learned Judge must have had some statement of that kind before him, otherwise he could not have specified the articles in his order. Therefore, it must be taken for the purpose of this case that the articles which the defendant had pledged along with other articles were six chooris.
8. It is urged on behalf of the defendant that the learned Judge had no jurisdiction to make this order. The order was made under Order XXXIX, Rule 7 of the Civil Procedure Code; the material part of which is as follows: '1. The Court may, on the application of any party to a suit, and on such terms as it thinks fit,
(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein.' It is clear that the articles in question are part of the subject-matter of the suit. But Mr. Chakerbutty, learned Counsel for the defendant, urged that the learned Judge had no jurisdiction to make the order inasmuch as the six chooris were not in the custody or possession of the defendant at the time the application was made.
9. In my judgment the first part of Rule 7 applies to the case where the articles are in the possession, custody or power of the party against whom the order is fought to be made. It is clear in my judgment that the articles in question were not in the custody or possession of the defendant. Therefore, the question is narrowed down to whether it can be said, upon the facts of this case, that the 6 chooris were within the power of the defendant in such a way that the learned Judge had jurisdiction to make an order on him to produce them.
10. The articles were pledged. One element of a pledge is that the pledgor has in the ordinary course a right to redeem the articles pledged. It was not alleged by the defendant in any part of the affidavits that he was unable to redeem these articles. It was not suggested that the time for redeeming had elapsed or that his pecuniary position was such that he could not redeem them, nor was it alleged in any way that he had no power to redeem them and produce them in Court.
11. Having regard to these facts and to the terms of the order of the learned Judge, I think that upon the facts of this case it must be taken that the learned Judge satisfied himself that the defendant was in a position to redeem the 6 chooris and produce them in Court. That being so, in my judgment the learned Judge had jurisdiction to make the order. If he had jurisdiction, the matter is at an end. It is not for us, when we are exercising the special powers given to us under Section 115 of the Code of Civil Procedure, to enter into the question whether upon the facts of this case the order was right or wrong.
12. For these reasons I think that the Rule should be discharged with costs. Hearing fee five gold mohurs.
13. I should add that on the application of Mr. Chakerbutty we indicated that we had doubt whether we had power to extend the time for the production of the articles. We have, however, no doubt that upon a proper application, the Court below will extend the time to such period as it may think; right.
N.R. Chatterjee, J.
14. I agree.
15. I agree.