Photocopy Of Sale Deed Can't Be Accepted As Surety For Purposes of S. 17 Of 'Small Cause Courts Act' R/w S. 145 CPC: Allahabad HC

The bench of Justice Neeraj Tiwari noted that for the purposes of both the provisions, a surety should have been of the nature, which may be sold out as and when required and since, on the basis of the photocopy of the sale deed, no sale of the property can be made, therefore, such surety cannot be accepted.

The case in brief

A suit was filed by Mohd Kaukab Azim Rizvi and another (respondents before the HC) in 2011 which was decided ex parte vide judgment and decree dated September 5, 2013, by the Civil Judge, Junior Division, Banda.

Upon that, the petitioners (defendants in the original suit) preferred an application in July 2018, under Order 9 Rule 13 of CPC for setting aside the ex-parte decree. Along with that, another application was filed to deposit the security in compliance with Section 17 of the 1887 Act.

For context, the proviso to Section 17 of the 1887 Act contemplates that an applicant seeking to set aside an ex-parte decree must either make a deposit of the amount in question or give security. Also, Section 17 of the 1887 Act provides that security may be realised in the manner provided in Section 145 of CPC. Further, Section 145 of CPC [Enforcement of liability of surety] as amended by U.P. Act No. 24 of 1954 provides for the furnishing of security of property by sale, which may be sold out to the extent of security.

Now, in the instant case, the Court rejected the application filed by the petitioners (respondents therein) on the ground that a photocopy of the sale deed has been placed, which is not legible and registered.

Against the said order, a Revision plea was filed, the same was also rejected in February 2023 with a specific finding that a photocopy of the unregistered sale deed cannot be accepted as surety.

Challenging, both these orders, the petitioners moved the instant petition under Article 227 of the Constitution of India.

High Court’s observations

Examining both the provisions (Section 17 of the 1887 Act and Section 145 of the CPC as amended by UP’s Act No. 24 of 1954), the Court concluded that the surety so submitted should be of such a nature that the sane may be sold out at any point of time either under the orders of Court or as per circumstances.

“Certainly, on the basis of photocopy of the sale deed, no sale proceeding can be executed, therefore, photocopy of sale deed cannot be accepted as surety,” the HC said as it found no grounds to interfere with the orders of the courts below.

Under such facts of the case, the petition was dismissed.

Also read: Security Furnished By Judgment Debtor In The Form Of A Rented Shop Belonging To A Third Party Cannot Be Accepted : Supreme Court

Appearances

Counsel for Petitioner: Chandra Prakash Kushwaha, Ramendra Asthana

Case title - Raj Kumar @ Rajenda Srivas And 3 Others vs. Mohd. Kaukab Azim Rizvi And Another 2023 LiveLaw (AB) 200 [MATTERS UNDER ARTICLE 227 No. - 5480 of 2023]

Case Citation: 2023 LiveLaw (AB) 200

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