The Allahabad High Court has stated that using a photocopy of a sale deed as surety under Section 17 of the Provincial Small Causes Court Act, 1887, in conjunction with Section 145 of the Code of Civil Procedure 1908, is not permissible.
A single judge bench of Justice Neeraj Tiwari's highlighted that both provisions require a surety that can be sold if necessary. However, since a photocopy of a sale deed does not allow for the actual sale of the property, it cannot be considered as an acceptable form of surety.
Brief Facts:
The Respondents filed a lawsuit in 2011, which was decided without their presence and a judgment was issued on September 5, 2013, by the Civil Judge, Junior Division, Banda. Subsequently, the defendants in the original suit (referred to as the petitioners) filed an application in July 2018, invoking Order 9 Rule 13 of the CPC to set aside the previous judgment given in their absence. Additionally, they filed another application to comply with Section 17 of the 1887 Act by depositing the required security.
In the present case, the Court dismissed the application submitted by the petitioners (referred to as respondents in that context) because a photocopy of the sale deed was provided, which was deemed illegible and not registered. Following this order, a Revision plea was filed, but it was also rejected in February 2023, with a clear determination that an unregistered photocopy of the sale deed cannot be accepted as surety. In response to these decisions, the petitioners filed the current petition under Article 227 of the Constitution of India, challenging both of these orders.
Observations of the Court:
Firstly, from the perusal of both the provisions, it was apparently clear to the Court that for compliance with Section 17 of Act, 1887, the surety can be accepted in accordance with the provisions of Section 145 of CPC, which provides enforcement of liability of surety and Section 145(II) of CPC provides furnishing of security of the property by sale, which may be sold out to the extent of security. So far as the present controversy is concerned, the court was of the opinion that the surety so placed before the Court is a photocopy of the sale deed on the basis of that, no sale of the property can be made, therefore, such surety cannot be accepted.
In regard to the second argument about photocopy of the document as secondary evidence, the Court made the opinion that it is not a case of evidence, but a case of surety and it should have been of such nature that may be sold out at any point of time either under the orders of Court or as per circumstances.
Considering the facts so mentioned here-in-above, this Court was of the firm view that photocopy of the sale deed cannot be accepted as surety for the purpose of Section 17 of Act, 1887 read with Section 145 of CPC.
The decision of the Court:
The Allahabad HC dismissed the petition as being devoid of any merit.
Case Title: Raj Kumar @ Rajenda Srivas And 3 Others vs. Mohd. Kaukab Azim Rizvi And Another
Coram: Hon’ble Justice Neeraj Tiwari
Case no.: MATTERS UNDER ARTICLE 227 No. - 5480 of 2023
Advocate for the Petitioner: Chandra Prakash Kushwaha,Ramendra Asthana
Advocate for the Respondent: -
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