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  • Writer's pictureTrivedi and Parashar (Advocates and Solicitors)

Judicial Updates -

ALLAHABAD HIGH COURT - PHOTOCOPY OF THE SALE DEED IN ACCORDANCE WITH SECTION 145 CIVIL PROCEDURE CODE, 1908 AND SECTION 17 OF THE PROVINCIAL SMALL CAUSE COURTS ACT, 1887, A DEED CAN NOT BE ACCEPTED AS SURETY.


In the case of Raj Kumar @ Rajenda Srivas & Ors. v. Mohd. Kaukab Azim Rizvi & Anr. [2023 AHC 123211], in 2011, the Respondent had filed a lawsuit in 2011, and the Court pronounced a judgment ex-parte. Thereafter, the Petitioners filed a motion under Order 9 Rule 13 of the Civil Procedure Code, 1908 (“CPC”) to set aside the ex-parte decree. A second application was also submitted in order to deposit the security in accordance with Section 17 of the Provincial Small Cause Courts Act, 1887 (“1887 Act”).


In the present case, the Court denied the Respondent’s plea on the ground that photocopy of the sale deed that was placed on record, was neither legible nor registered. A revision request was made against the aforementioned order, but it was similarly denied stating that a photocopy of an unregistered sale deed could not be used as a surety. Consequently, the Petitioners filed the current petition in response to both of these orders under Article 227 of the Indian Constitution.


After a careful examination of both of the provisions, namely Section 17 of the 1887 Act and Section 145 of the CPC , the Allahabad High Court came to the conclusion that the surety provided should be of a kind that would allow it to be sold out at any time, either on a court's orders or depending on the situation. It also observed that “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 Court took a firm view that a photocopy of the sale deed cannot be accepted as surety for the purpose of Section 17 of the 1887 Act read with Section 145 of CPC. A surety should have been of the type that could be sold out as and when needed for the purposes of both provisions. Since no sale of the property can be made using the photocopy of the sale deed, such a surety cannot be accepted.


Therefore, the Petition was dismissed.

 
 

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