S L RAMASWAMY CHETTY Vs. MSAPLPALANIAPPA CHETTIAR

JUDGEMENT

(1.) The defendants appeal from a decree declaring that the respondent (plaintiff) is entitled to redeem eleven jewels pledged by him with the appellants, ordering the appellants to produce the same in Court on or before 30 January 1928 and in default to pay the respondent the price thereof i.e., Rs. 11,000, with interest thereon, less Rs. 11,712-9-0 being the amount due to the appellants under the decree in O.S. No. 110 of 1921 or a net amount of Rs. 627-9-8 and also ordering the appellants to pay the respondent his costs of suit. All the parties are Nattukottai Chet ties and appellant 1 is appellant 2's brother's son.

(2.) On 3 November 1918 at Karaikudi in the Ramnad District the respondent borrowed from the appellants who are jointly carrying on a money lending business in India and the F.M.S., the sum of Rs. 6,000 at 12 per cent interest and pledged with them the jewels mentioned in the schedule to the decree. The debt being unpaid appellant 1 as agent on behalf of appellant 2 and during the latter's absence in the F.M.S. brought a suit for its recovery on 3rd November 1921 in the Court of the Subordinate Judge of Sivaganga O.S. No. 110 of 1921. In the plaint it was stated by way of remark that 2 jewels worth in all Rs. 2,700 were pledged for the debt. This was only by way of remark; the jewels were not produced in Court and the suit was framed as for the recovery of the debt, reserving to the plaintiff the right to sell the jewels without the intervention of the Court, a course which the creditor could take under Section 176, Contract Act. It is now admitted that this statement was incorrect because at least 10 jewels were pledged. It is alleged by the appellants that the mistake arose as the jewels were in an iron safe the key of which was with appellant 2 at. Ipoh in the F.M.S., and appellant 1 who had to file the suit before it became barred did not know the number and value of the pledged jewels. However this may be, in March 1922 the respondent applied to the Court to direct the production of the jewels urging that the statement in the plaint as to the number and value of the jewels was incorrect. To this request, instead of stating what is now urged as the truth appellant 1 stated in a counter affidavit that the defendant's (present respondent s) allegations were all false and that he had no right to have the pledged jewels produced nor could his objections as to their value or number be heard as no relief was sought in the suit about the said jewels. On 27 November 1922 the Court made the following order; The pledged jewel does not form the subject matter of the suit. Plaintiff does not seek to enforce the pledge in the suit. No issue raises the question of the pledge. This application does not lie and is accordingly dismissed.

(3.) The decree in the suit was passed on 8 December 1922 by which time appellant had returned from Ipoh to India.