Allahabad HC: Photocopy of Sale Deed Unacceptable as Surety under S.17 of Small Cause Courts Act & S.145 CPC

The Allahabad High Court has stated that a photocopy of a sale deed cannot be considered as a valid surety under Section 17 of the Provincial Small Causes Court Act, 1887, in conjunction with Section 145 of the Code of Civil Procedure, 1908.

Justice Neeraj Tiwari’s bench noted that for both provisions to apply, the surety must be of a nature that can be sold when required. Since a photocopy of a sale deed does not allow for the sale of the property, such a surety cannot be accepted.

In the case at hand, Mohd Kaukab Azim Rizvi and another party filed a suit in 2011, resulting in an ex-parte judgment and decree by the Civil Judge, Junior Division, Banda, on September 5, 2013. The defendants in the suit, the petitioners, subsequently applied to set aside the ex-parte decree in July 2018 under Order 9 Rule 13 of the CPC. Alongside the application, they sought to deposit the security as required by Section 17 of the 1887 Act.

Section 17 of the 1887 Act stipulates that an applicant seeking to set aside an ex-parte decree must either deposit the amount in question or provide security. This security may be realized as per Section 145 of the CPC. However, in this case, the Court rejected the application since the photocopy of the sale deed submitted was illegible and unregistered.

The subsequent Revision plea challenging the rejection was also dismissed in February 2023, with the court affirming that an unregistered photocopy of a sale deed cannot be accepted as surety. In response, the petitioners filed an Article 227 petition under the Constitution of India.

After examining the provisions of both 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 provided must be of a nature that can be sold when necessary, either by court order or as circumstances require. Since a photocopy of a sale deed cannot facilitate a sale process, it cannot be accepted as surety. Consequently, the court found no grounds to interfere with the previous orders and dismissed the petition.