Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. This appeal arises out of a suit upon a pledge of certainmoveable property. The pledge in question was made on the 29th Magh 1293,corresponding to the 10th February 1887.

2. The suit was instituted on the 14th December 1891, thatis to say, within six years, but beyond three years, from the date of thepledge. The Lower Appellate Court has dismissed the suit upon the ground thatit is barred under Article 57 of the second schedule of the Limitation Act; andthe main question that we have to determine in this appeal is whether the caseis governed by Article 57 or Article 120 of the Limitation Act.

3. So far as the plaint prays for a decree for the moneylent against the defendant personally, we are of opinion that it is barredunder Article 57. That article runs as follows: "For money payable formoney lent: three years from the time that the loan is made "; and itseems to us that so far as the claim is for recovery of the money against thedefendant, it falls under that article. But we are not prepared to agree withthe Lower Appellate Court in holding that so far as the plaintiff asks to enforcehis charge against the article pledged, the case falls within the said article.

4. There can be no doubt that when moveable property ispledged to a person for money lent, he acquires a special property therein: hehas a charge upon it for the satisfaction of the loan advanced, and he isentitled, under Section 176 of the Contract Act, either to bring a suit againstthe owner upon the debt or promise, retaining the goods pledged as collateralsecurity, or he may sell the things pledged upon giving reasonable notice ofthe sale. And when he brings a suit for the purpose of a declaration of hisright to sell the article pledged for the satisfaction of his claim, the suitis one to enforce his charge upon the said articles.

5. It is, we believe, now well settled that when a mortgageeof Immovable property brings a suit to recover the money advanced by sale ofthe property pledged, it is a suit to enforce his charge upon the saidproperty; and we should think, by analogy, the claim of a pawnee for a similarrelief in respect of moveable property is a suit to enforce his charge uponthat property.

6. In this view of the matter it seems to us that the casedoes not fall within Article 57 of the Limitation Act, and there being no otherarticle in the said Act applicable to it, we should think that it falls withinArticle 120 which provides for six years limitation.

7. The view that we adopt is one which we find was acceptedby the Punjab High Court in the case of Dowlaih Ram v. Jewan Mal (see Mr.Rivazs edition of the Indian Limitation Act, 2nd Edition, p. 154, as alsoBransons Digest, p. 219).

8. We ought here to mention that the learned Judge of theCourt below, in support of his view, has referred to the case of Vitla Kamti v.Kalekara I.L.R. Mad. 153. That was a suit upon a bond whereby certain moveableproperty in the possession of the debtor was pledged as security, and thequestion that was discussed was whether Article 80 or Article 120 of theLimitation Act" was applicable, and the learned Judges held that, so faras the suit was to recover a debt due under the bond, it was governed byArticle 80, and that "the power to bring moveable property to sale is anincident in the nature of an accessory to the right to recover the debt, and ifthat right becomes incapable of being enforced owing to the lapse of threeyears, the power to sell the security must likewise cease to be capable ofbeing exercised."

9. We are, however, unable to agree in this view, and inthis connection we might refer to the observations of Sir Barnes Peacock in thecase of Surwan Hassain Khan v. Golam Mahomed 9 W.R. 171 : B.L.R. Sup. 879decided by a Full Bench of this Court, where that eminent Judge (see p. 173 ofthe Report) in referring to a similar argument that was put forward in respectof a suit to enforce a lien upon Immovable property disapproved of that view,and he observed as follows: "If land is mortgaged as security for a loan,in addition to a covenant for payment of the money, the mortgagee may sue themortgagor for a breach of the covenant, and he may also bring an action ofejectment to recover the land mortgaged as a collateral security. It appears tous that the charge upon the land created an equitable interest upon the land,and that a suit brought to enforce that charge is in substance and in effect asuit for the recovery of that interest."

10. In the view which we have just expressed the otherquestions that have been discussed before us do not arise.

11. The result is that this appeal will be allowed so far asthe plaintiff seeks to enforce his charge against the articles pledged. Eachparty will bear his own costs.

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Nim Chand Baboo and Ors.vs. Jagabundhu Ghose (20.07.1894- CALHC)