The provisions of Section 176 of the Indian Contract Act, which require the pawnee to give reasonable notice of the sale to the pawner, are mandatory. However, the requirement of notice can be waived by the pawner, and the pawner may be estopped from claiming that he had no notice of the sale if he had agreed to the sale or participated in the negotiations for the sale.

K. P. MOHAPATRA, J.

( 1 ) ORDER :- Civil Revision Nos. 471 and 505 of 1985 were heard analogously. The order which is going to be passed will govern both.

( 2 ) THE facts relevant for disposal of these cases are narrated in brief. Opposite party No. 1 is the State Bank of India of Khurda. The petitioners 2 to 6 and opposite parties 2 to 4 are the partners of petitioner No. 1, M/s. Tapanga Light Foundry and Co. having its head office in Calcutta and the factory premises at Tapanga near Khurda. Opposite party No. 1 instituted T. M. S. No. 92 of 1982 (II) against the petitioners and opposite parties 2 to 4 in the court of the learned Subordinate Judge, Khurda praying for a preliminary decree for recovery of Rs. 94,06,349. 22 and for sale of mortgaged property and pledged goods on the basis of a deed of mortgage. In their written statement the plaintiffs and opposite parties 2 to 4 did not deny execution of the deed of mortgage on receipt of loans from opposite party No. 1, but, inter alia, alleged that the amount due against them was much less than the amount claimed and the suit was barred by limitation. One of the clauses in the deed of mortgage relates to pledge of goods and is to the following effect :-"all stocks of raw materials and finished goods manufactured therefrom now or at any time hereafter during the continuance of this Agreement, stored or to be stored in Godown (s)/in the factory situated at Tapang, Khurda, Orissa, or in any other factory premises/godown or Godown (s) approved by the Bank. " opposite party No. 1 had advanced the loans in the year 1964 and thereafter from time to time on different dates in succeeding years. But the petitioners and opposite parties 2 to 4 did not make any repayment, as a result of which, the total amount due on them and claimed in the suit went up to the region of rupees one crore and so during the pendency of the suit, opposite party No. 1 filed petitions said to be under Order 39, Rule 6 of the Code of Civil Procedure ('code' for short) for sale of pledged goods, all movables, in terms of the agreement contained in the deed of mortgage for part satisfaction of the admitted dues. Both the parties contesting the suit were heard. The petitioners agreed for sale of the pledged goods. Accordingly, the learned Subordinate Judge passed an order on 1-5-85 directing sale of the pledged goods by 17-6-85. Opposite party No. 1 took steps to advertise the sale in newspapers and many tenders from intending purchasers were received. The tenders were opened in the presence of the representatives of opposite party No. 1 and some of the petitioners and the highest tender of M/s. Rajkumar Pareshnath who had offered the price of Rs. 32,00,500/- was accepted. M/s. Rajkumar Pareshnath, however, backed out and so the sale could not be finalised within 17-6-85. Opposite party No. 1 again moved the learned Subordinate Judge for further time to effect sale of the pledged goods. At this stage, however, the petitioners raised objection on the ground that the pledged goods should be sold by weighment and not by lots to fetch a higher price. The matter was heard in presence of the contesting parties and the learned Subordinate Judge came to hold that the petitioners had agreed for sale by lots of the pledged goods. They had never raised any objection regarding the mode of sale when they agreed in Court for sale of the pledged articles nor when the tender of M/s. Rajkumar Pareshnath was accepted. There was also no agreement between the parties at the time of execution of the deed of mortgage that the goods should be sold by weighment. For these reasons the learned Court below by the impugned order dated 25-7-85 permitted opposite party No. 1 to effect sale within two months with a further direction that the sale price should be adjusted towards the suit claim. The petitioner being aggrieved with this order filed Civil Revision No. 471 of 1985.

( 3 ) BEING fortified with the Court's order dated 25-7-85 opposi