IMPORTANT POINT
A security to be provided under Section 17 of Provincial Small Cause Courts Act, 1887 by a surety is to be enforced under provisions of Section 145 of Code of Civil Procedure as contemplated in Section 17 (2) of Provincial Small Cause Courts Act, 1887.

JUDGMENT :

K.M. JOSEPH, J.

1. Leave granted.

2. The Respondents No.1 to 4 obtained an ex-parte decree against the appellants. The decree was one for ejectment and recovery of arrears of rent, taxes, damages etc. This decree was passed on 18.10.2012. The appellants filed an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’) on 06.05.2014 claiming knowledge of the Decree on execution proceeding on 05.04.2014. It was numbered as 4C. On the very same day, an application was filed under Section 17 of the Provincial Small Cause Courts Act 1887 (hereinafter referred to as the ‘Act’).

3. Section 17 of the Act reads as follows:

“17. Application of the Code of Civil Procedure.— (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act,] be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:

Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by section 145 of the Code of Civil Procedure, 1908 (5 of 1908).” (Emphasis Supplied)

4. The relevant contents of the Application under Section 17 and the relief sought was as follows:

“3. That the applicants pray to the Hon’ble Court that it shall be necessary in the interest of justice to grant the permission for depositing/paying the total amount of Rs. 98,624/- (Rupees Ninety Eight Thousand Six Hundred Twenty Four Only) including decrial amount, compensation, incurred expenses etc., out from such amount, a sum of Rs. 12,600/- (Rupees Twelve Thousand Six Hundred Only) have already been deposited under section 30 (1) of Uttar Pradesh Act No. 13 of 1972 and balance amount is calculated Rs. 86,024/- (Rupees Eighty Six Thousand Twenty Four Only), out from the same, the applicants intend to furnish the surety of a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) and deposit balance amount before Hon’ble Court.

4. That the applicants are annexing the Tendering Application for depositing cash amount of Rs. 36,024/- (Rupees Thirty Six Thousand Twenty Four Only), it shall be appropriate in the interest of justice to pass tender for depositing the such amount.

PRAYER

Therefore, it is humbly prayed to this Hon’ble court that grant the permission for depositing/furnishing the surety of a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) by passing the annexed tender along with application in compliance of section 17 of Provincial Small Cause Act, 1800 presented by applicants.” (Emphasis supplied)

5. This Application came to be numbered as 8C. Subsequently, on 12.05.2014, an Application was filed with a prayer that the security in the form of a rental shop owned by the Nagar Nigam may be taken on record. This Application was ‘allowed’ or ‘admitted’ on 24.05.2014, a point of controversy to be noticed and dealt with. The surety was one Abhishek Dixit (the 7th proforma respondent in this appeal). This was the Application numbered as 14C. On 23.09.2015, the Trial Court dismissed Application 8C filed under Section 17 of the Act. The Order, inter alia, states as follows:

“In the light of above contentions/arguments, I carefully inspected record file and found that the Restoration Application i.e. 08C was presented itself on 06.05.2014, but this application was not corroborated before the then Presiding Officer, but after submitting the application i.e. 8C, it has been submi