A party cannot pursue two remedies simultaneously for the same relief.

H. L. AGRAWAL, C. J.

( 1 ) THE short but intricate question that arises for our consideration in this case is as to whether the State Financial Corporation having taken recourse to a suit against its debtor for recovery of the loan can take recourse to the powers u/s. 29 of the State Financial Corporations Act (hereinafter referred to as the 'act' ).

( 2 ) THE facts, briefly stated, are as follows : the Orissa State Financial Corporation (O. P. No. 1) advanced a sum of Rs. 1,56,000/- in different instalments to the petitioner for advancing to different fishing industries sponsored by the Director of Industries, Orissa, for purchasing various equipments and materials required by the fishing industries. The loan was to be repaid within 5 years 6 months in 9 half-yearly instalments with interest at the rate of 15 per cent. The petitioner was not able to repay the entire loan, the Corporation instituted T. M. S. No. 255/83 in the Court of the First Subordinate Judge, Cuttack, for realisation of the outstanding loan with a prayer that on the failure to pay the decretal dues, a decree for sale of the hypothecated trawlers together with the accessories as given in Schedule "h" to the plaint be passed and the sale proceeds be adjusted towards payment of the decretal dues. The suit was decreed and the decree was put to execution.

( 3 ) IN the meantime, one of the managing partners of the petitioner died in an accident and the Corporation and its director, purporting to exercise the power u/s. 29 of the Act seized the trawlers to sell the same by auction. It is this action of the opposite parties which is challenged in this writ application inter alia on the ground that the opposite parties having chosen to take recourse to a regular civil suit, their remedy was to be confined to the process of execution of the said decree and that they were debarred from taking recourse to the statutory powers conferred upon them u/s. 29.

( 4 ) IT was submitted on behalf of the petitioner that the Civil Court decree which is in the nature of a mortgage decree specifically enjoins upon the decree-holder (Corporation) to realise the decretal dues by sale of the mortgaged properties through the process of the Court and that leaving the decree at that stage, and taking recourse to S. 29 of the Act would amount to prosecuting two remedies simultaneously and put the petitioner to the risk of "double jeopardy". Mr. S. N. Sinha

appearing for the Corporation fairly conceded that although the law is well settled that no person can be allowed to prosecute two remedies simultaneously, without putting the Civil Court decree to execution, or, for the matter of that, even if the decree was put to execution, the Corporation was entitled to withdraw the execution case and fall back upon the statutory powers conferred upon it u/s. 29 of the Act. In other words, he submitted that inspite of availing the general remedy of a civil suit, there was no bar for the Corporation to retrieve from that position and proceed under the Act. From a Bench decision of the Calcutta High Court in the case of Haridas Mundra v. National and Grindlays Bank Ltd. , AIR 1963 Cal 132 where on the pawner's making default the right of the pawnee to sue upon the debt promise was held not to exclude or destroy his right to sell the pawn and the pawnee's right to sue upon he debt or the promise or to sell the pawn was held to be concurrent and not alternative right, it was submitted that in spite of bringing the suit for recovery of the loan as such, the Corporation's right to sell the hypothecated articles offered as Collateral security was available. I am sorry to observe that the reliance placed upon this decision by Mr. Sinha is entirely misplaced and is conceived. Rather, the decision goes contrary to his submissions. Bachawat, J. who delivered the leading judgement made the matter clear by indicating the three rights of the pawnee, namely, (1) he may bring a suit against the pawner upon the