June 5, 2023: The photocopy of a sale deed is not admissible as surety under Section 17 of the Provincial Small Causes Court Act, 1887, the Allahabad High Court has ruled.
Section 17 of the Act provides that security may be realised in manner provided in Section 145 of the Code of civil Procedure (CPC). Section 145 of the CPC deals with enforcement of liability of surety.
“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. Further, judgments so relied by counsel for petitioners only deals with the acceptances of secondary evidence, therefore, the same are having no relevance in the present controversy. … this court is 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 (the) CPC,” the single judge Bench of justice Neeraj Tiwari said while giving its verdict in the Raj Kumar @ Rajenda Srivas and 3 others & Mohd. Kaukab Azim Rizvi and another case.
In their plea, the petitioners submitted that if an unregistered sale deed is produced before the court as surety, it should have been accepted as security in compliance of Section 17 of the Act. They also argued that photocopy of any document is secondary evidence under the Indian Evidence Act, 1872. By virtue of that, the photocopy cannot be rejected as surety.
“So far the second argument about the photocopy of the document can be accepted as secondary evidence is concerned, it is not a case of evidence, but a case of surety,” it added while dismissing the petition.
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