ARTI DIXIT & ANR v SUSHIL KUMAR MISHRA & ORS

ABCDEFGH728SUPREME COURT REPORTS[2023] 5 S.C.R. [2023] 5 S.C.R. 728728ARTI DIXIT & ANRv.SUSHIL KUMAR MISHRA & ORS(Civil Appeal No.3858 of 2023)MAY 18, 2023[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]Provincial Small Cause Courts Act, 1887: s. 17 – Decreepassed by a court of Small Causes ex-parte, under the proviso tos.17 – Application to set aside the ex-parte decree – Mandatoryrequirements – Held: Applicant must deposit in the court, the amountdue under the decree or should give security for the performanceof the decree ‘on a previous application’ made by him in this behalf– Such application can be filed up to the date of the application u/Ord. IX r. 13 and the security must be made available along withsuch application – On facts, court of Small Causes passed an ex-parte decree against the appellants for ejectment and recovery ofarrears of rent and taxes – Appellants filed an application u/Ord.IX r. 13 rw s. 151 CPC seeking setting aside of the ex parte decree,and on the same day filed application u/s. 17 and sought permissionfor depositing/furnishing surety – Subsequently an application wasfiled that the security in the form of rental shop owned by theMunicipal Corporation be taken on record and the same was allowed– Pursuant to remand, the trial court rejected the application filedu/s.17 as also the application filed to take the security on record –Surety provided by the

appellants was also rejected – Said orderwas confirmed in the revision petition, as also in the writ petition bythe High Court – On a literal interpretation of s. 17, the appellantdid not seek for dispensing with deposit as such, thus, the appellanthad not in the said sense complied with the mandatory requirementof s. 17 – Furthermore, the security furnished by the appellantthrough the surety, who is a tenant, is not acceptable in law havingregard to s. 17(2) as the shop belonged to the Municipal Corporationand it could not be sold for enforcing the surety – Code of CivilProcedure, 1908 – Ord. IX r. 13Dismissing the appeal, the CourtHELD : 1.1 When a Decree is passed by a Court of SmallCauses ex-parte, inter alia, under the proviso to Section 17 of ABCDEFGH729the Provincial Small Cause Courts Act, 1887, the applicant, whofiles an Application to set aside the ex-parte Decree is bound todo the following: he must deposit in the Court, the amount dueunder the Decree; in the alternative, he should give security forthe performance of the Decree ‘on a previous Application’ madeby him in this behalf. [Para 18][747-H; 748-A-B]1.2 As regards the question whether the Application is inconformity with the proviso to Section 17 and did the applicantfurnish any security on 06.05.2014, the answer can only be in thenegative. The appellant did not seek for dispensing with depositas such.

Therefore, the appellant had not in the said sensecomplied with the mandatory requirement of Section 17. [Para21][749-F]1.3 The High Court in the impugned order finds that noapplication for dispensing with surety was filed and that this willbe read against the appellants. The High Court perseveres inthis observation on three occasions. It is observed that whatSection 17 of the Act contemplates in the proviso is that theapplicant seeking to set aside an ex-parte decree inter alia musteither make a deposit of the amount in question or give security.In Kedarnath’s case it has been laid down that the provision as todeposit can be dispensed with by the Court. The applicant can, inother words, seek a dispensing with of the deposit and seek leavefor furnishing such security as the Court may direct. Therefore,the High Court was not correct in proceeding on the basis thatappellants did not make any application for dispensing with surety.No doubt, at one place, the High Court states that there is noprayer for dispensing with the surety or the amount sought to bedeposited by way of security. The prayer of the appellants was topermit deposit/furnishing surety of Rs.50000/- which was part ofthe decretal amount. This could be treated impliedly as seekinga direction within the meaning of Section 17. An applicant couldno doubt also propose the security which he wishes to give. Infact,

ordinarily, an application for dispensing with the cash depositand for direction to furnish security should be made prior toapplication under Order IX Rule 13 of CPC. On the order passedon the same, the applicant is to comply with the same and furnishthe security at the time when he files the application under OrderARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS ABCDEFGH730SUPREME COURT REPORTS[2023] 5 S.C.R.IX Rule 13. Since an application under Section 17 which is reallyrequired only in the absence of the cash deposit can be filed upto the date of the application under Order IX Rule 13 ordinarily,the security must be made available along with such application.There then arises the aspect that the application under Order IXRule 13 can be filed within 30 days as provided in Article 123 ofthe Limitation Act. Undoubtedly, the deposit or security must befurnished within 30 days. This is on the basis that the applicationcan be made under Order IX Rule 13 upto the 30th day but at thesame time, the conditions in the proviso, namely, the deposit orthe security must be furnished at the time of presenting theapplication under Order IX Rule 13. But if the application underSection 17 can be moved along with the application under OrderIX Rule 13, then if a direction is required for furnishing securityand the Court grants permission and time, then it may be possibleto furnish the security

only after the date of the application underOrder IX Rule 13. The Court is expected to pass an orderpromptly on the application which may be filed under Section 17which may be of the same date as the application under Order IXRule 13. Any delay on the part of the Court cannot prejudice theapplicant. [Para 22][750-A-H; 751-A]1.4 The appellants filed the application both under Section17 of the Act and under Order IX Rule 13 on the same day,namely, 06.05.2014. The application under Order IX Rule 13 ispremised on knowledge of the ex parte decree being obtained on05.05.2014 in the Execution Proceedings. There was no securityoffered on 06.05.2014. Though a direction as such was notexpressly sought for but permission was sought for to furnishsecurity, it could be said that in substance the appellantsessentially sought for direction within the meaning of the provisoto Section 17. The High Court was in error in finding that theappellants did not seek for dispensing with the security, andtherefore, apparently holding the same against the appellants.When the appellants sought for permission to furnish security, ifthe permission was granted and a direction to furnish securitywas given on the same date and it had been complied with withinthe time, then the appellants would have been compliant withSection 17. No orders were passed on the application underSection 17 dated 06.05.2014. Within 6

days, on 12.05.2014, the ABCDEFGH731appellants on their own purported to furnish security. The suretywas the 7th proforma respondent in the appeal. The security washowever, a shop. The shop was not owned by the surety. TheMunicipal Corporation, Lucknow was the owner. The surety wasa tenant. A security to be provided under Section 17 by a suretyis to be enforced under the provisions of Section 145 of the Codeof Civil Procedure as contemplated in Section 17 (2) of the Act.Section 145 of the CPC inter alia provides that the securityprovided by a surety can be enforced by effecting sale of theproperty. It has been held that the security provided by theappellants through the surety is not acceptable in law havingregard to Section 17 (2) as the shop belonged to the MunicipalCorporation, Lucknow and it could not be sold for enforcing thesurety. [Para 23][751-B-G]1.5 While it is true that no order was passed on theapplication under Section 17 on 06.05.2014, the fact remains thatthe appellants on their own furnished a surety as stated. TheHigh Court reasons that the security so provided wasunacceptable on two grounds. Firstly, it was not furnished alongwith the application under Order IX Rule 13 on 06.05.2014.Secondly, it is found that it was not acceptable in law. [Para24][751-G-H]1.6 It is true that the High Court in the order dated03.12.2015 proceeded to find that the “security was

accepted bythe court below”. This is by way of accepting the submission ofthe counsel for the plaintiffs. It was on this basis that the matterwas remanded. Following the remand, the trial court allowed theapplication filed by the appellants and also the application underOrder IX Rule 13. This has been set aside by the ADJ and thematters stood remanded back by Order dated 01.08.2017. Thisorder was not challenged by the appellants. It is thereafter thatthe courts have concurrently found that there was non-complianceof Section 17. The earlier order of the High court dated03.12.2015 has been overcome by finding that there was asweeping statement before the High Court in the earlier roundthat the surety furnished had been accepted. The High Courtfurther finds that actually the prayer made in application dated12.05.2014 was only to take the surety on record. The order datedARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS ABCDEFGH732SUPREME COURT REPORTS[2023] 5 S.C.R.25.04.2014 only shows that only the surety was taken on record.It is further found that the application dated 12.05.2014 was filedafter 06.05.2014 and could not be the basis for a valid order underSection 17. [Para 25][752-A-D]1.7 It is accepted that the security furnished by theappellants in the form of the rented shop belonging to a thirdparty cannot be accepted as security in law. It is patent. It is notclear from the

order dated 24.05.2014 that the Court had appliedits mind to the sufficiency of the security or as to whether it wasacceptable security. If security is given, which is later found tobe unacceptable even if it is within 30 days within the meaning ofArticle 123 of the Limitation Act, then it would not be complyingwith Section 17. [Para 26][752-E-F]Ram Bharose v. Ganga Singh AIR 1931 Allahabad 727– approved.1.8.While it is true that there may have been a failure onthe part of the court to pass orders on the application dated06.05.2014 apparently, the appellants proceeded to furnish thesecurity in this case on 12.05.2014. Therefore, it is proceededon the basis that within 30 days of the date of knowledge of thedecree, as alleged by the appellants, but after the date of theapplication under Order IX Rule 13, the appellants have furnishedsecurity. No order was passed by the Court on 06.05.2014. Evenproceeding to consider the security however it is found clearlyunacceptable in law. The effect of the order of the High Courtdated 03.12.2015 must be understood with reference to theconcession made by the counsel and may not withstand therequirement of law under Section 17 of the Act being fulfilled.The Court cannot be unmindful of the fact that the appellants didnot challenge the order of the Additional District Judge dated01.08.2017. The trial Judge was bound by the same as theappellants

did not challenge the order dated 01.08.2017. The factthat the appellants, after participating in the remandedproceedings mounted a challenge in a writ to the order dated01.08.2017 appears as not advancing the case of the appellants.This is both for the reason of the belated challenge as also thenature of the earlier order involved. In the facts, having regard ABCDEFGH733to the Order dated 01.08.2017 and the security being foundunacceptable, there is no merit in the appeal. [Para 27, 28][752-F-H; 753-A-C]Kedarnath v. Mohan Lal Kesarwari and others AIR2002 SC 582 : [2002] 1 SCR 144; Bhagwan Dass Arorav. First Additional District Judge, Rampur and others(1983) 4 SCC 1 : [1983] 3 SCR 493 – referred to.Case Law Reference[2002] 1 SCR 144referred toPara 7[1983] 3 SCR 493referred toPara 13AIR 1931 Allahabad 727approvedPara 26CIVIL APPELLATE JURISDICTION : Civil Appeal No.3858of 2023.From the Judgment and Order dated 19.08.2021 of the High Courtof Judicature at Allahabad in MUA227 No.2175 of 2021.Haraprasad Sahu, Pranaya Kumar Mohapatra, Advs. for theAppellants.S. R. Singh, Sr. Adv., Pradeep Kumar Yadav, Sushant KumarYadav, Gaurav Lomes, Prithivi Yadav, Rahul Ranjan Singh, VenkateshRajput, Shivam Tyagi, Sanjeev Malhotra, Advs. for the Respondents.The Judgment of the Court was delivered byK. M. JOSEPH, J.1. Leave granted.2. The Respondents No.1 to 4 obtained an ex-parte decree

againstthe appellants. The decree was one for ejectment and recovery of arrearsof rent, taxes, damages etc. This decree was passed on 18.10.2012.The appellants filed an application under Order IX Rule 13 read withSection 151 of the Code of Civil Procedure (hereinafter referred to as‘CPC’)on 06.05.2014 claiming knowledge of the Decree on executionproceeding on 05.04.2014. It was numbered as 4C. On the very sameday, an application was filed under Section 17 of the Provincial SmallCause Courts Act 1887 (hereinafter referred to as the ‘Act’).3. Section 17 of the Act reads as follows:ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS ABCDEFGH734SUPREME COURT REPORTS[2023] 5 S.C.R.“17. Application of the Code of Civil Procedure.—(1) Theprocedure prescribed in the Code of Civil Procedure, 1908 (5 of1908), shall save in so far as is otherwise provided by that Codeor by this Act,] be the procedure followed in a Court of SmallCauses, in all suits cognizable by it and in all proceedings arisingout of such suits:Provided that an applicant for an order to set aside a decree passedex parte or for a review of judgment shall, at the time of presentinghis application, either deposit in the Court the amount due fromhim under the decree or in pursuance of the judgment, or give suchsecurity for the performance of the decree or compliance withthe judgment as the Court may, on a previous application made

byhim in this behalf, have directed.(2) Where a person has become liable as surety under the provisoto sub-section (1), the security may be realised in manner providedby section 145 of the Code of Civil Procedure, 1908 (5 of 1908).”(Emphasis Supplied)4. The relevant contents of the Application under Section 17 andthe relief sought was as follows:“3. That the applicants pray to the Hon’ble Court that it shall benecessary in the interest of justice to grant the permission fordepositing/ paying the total amount of Rs. 98,624/- (Rupees NinetyEight Thousand Six Hundred Twenty Four Only) including decrialamount, compensation, incurred expenses etc., out from suchamount, a sum of Rs. 12,600/- (Rupees Twelve Thousand SixHundred Only) have already been deposited under section 30 (1)of Uttar Pradesh Act No. 13 of 1972 and balance amount iscalculated Rs. 86,024/- (Rupees EightySix Thousand Twenty FourOnly), out from the same, the applicants intend to furnish the suretyof a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) and depositbalance amount before Hon’ble Court.4. That the applicants are annexing the Tendering Application fordepositing cash amount of Rs. 36,024/- (Rupees Thirty SixThousand Twenty Four Only), it shall be appropriate in the interestof justice to pass tender for depositing the such amount.PRAYER ABCDEFGH735Therefore, it is humbly prayed to this Hon’ble court that grant

thepermission for depositing/ furnishing the surety of a sum of Rs.50,000/- (Rupees Fifty Thousand Only) by passing the annexedtender along with application in compliance of section 17 ofProvincial Small Cause Act, 1800 presented by applicants.”(Emphasis supplied)5. This Application came to be numbered as 8C. Subsequently, on12.05.2014, an Application was filed with a prayer that the security inthe form of a rental shop owned by the Nagar Nigam may be taken onrecord. This Application was ‘allowed’ or ‘admitted’ on24.05.2014, apoint of controversy to be noticed and dealt with. The surety was oneAbhishek Dixit (the 7th proforma respondent in this appeal). This wasthe Application numbered as 14C. On 23.09.2015, the Trial Courtdismissed 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 inspectedrecord file and found that the Restoration Application i.e. 08Cwas presented itself on 06.05.2014, but this application was notcorroborated before the then Presiding Officer, but after submittingthe application i.e. 8C, it has been submitted the application i.e.14C before Court, which was admitted by Court on 24.05.2015,but it was not deposited necessary compensation with the same.Therefore, it was not remained any relevance to again pass theorder on application i.e., 08C after submitting the

application i.e.,14C. In the above circumstances, the application i.e. 08C hasbeen fruitless as the application i.e. 14C has already been admittedon 24.05.2014 by the then Presiding Officer. Therefore, at thisstage, it is not any relevance of application i.e., 08C and the sameis liable to be dismissed.”(Emphasis supplied)6. This Order was challenged by the appellants by filing a Revisionbefore the High Court.It is relevant to notice the following part of theOrder passed by the High Court:“Heard Sri Umesh Narain Sharma, learned Senior Advocate,assisted by Sri Shailendra Kumar learned counsel for therevisionists and Sri W.H.Khan, learned Senior Advocateassisted by Sri Anand Srivastava learned counsel for theARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH736SUPREME COURT REPORTS[2023] 5 S.C.R.opposite parties. The present revision has been filed againstthe order dated 23.09.2015 passed by learned AdditionalDistrict Judge/Special Judge (E.C. Act) Kanpur Nagar, inMisc. Case No. 11/74/2014 whereby application paper no.8-C under Section 17 of the Small Causes Court Act filed bythe revisionists has been rejected arising out of ex-parteJudgement and decree dated 18.10.2013 passed in SmallCauses Case No. 27 of 2012. Learned counsel for therevisionists contends that no notice in the SCC suit was servedupon the revisionists and ex-parte order passed against

thedefendants-revisionists and even in execution proceedings nonotice was served and ex-parte order passed against whichapplication under Order IX Rule 13 C.P.C.. Learned counselfurther contends that application under Section 17 of SmallCauses Court Act was filed which remain pending whichapplication was also filed within the statutory period. Learnedhas next contended that again another application under thestatutory period was filed accepting the sureties which wasaccepted by the learned court below after one year. Thereafterearlier application paper no.8Ga has been rejected vide orderimpugned which is impugned in the present revision. SriW.H.Khan, learned Senior Counsel assisted by Sri AnandSrivastava, learned counsel for the opposite parties statesthat once the surety has been accepted, the earlier applicationhas become redundant which is the order impugned in thepresent revision, therefore no adversity has been attended toby the revisionists. In view of the submissions made by learnedcounsel for the parties this Court is of the opinion that oncethe surety has been accepted by the Court below as has alsobeen stated by Sri W.H.Khan, learned counsel for the oppositeparties, the matter may be directed to be decided expeditiously,according it is directed as such. With the aforesaid directions,this revision stands disposed off”.(Emphasis supplied)7. This Order was passed on

03.12.2015. On the basis of the saidorder the Trial Court by Order dated 07.12.2016, after noticing the Orderof the High Court, found that the appellants have presented the Applicationunder Section 17 of the Act at the time of presenting the Application ABCDEFGH737under Order IX Rule 13 of the CPC, and that though the Application 8Cwas dismissed by Order dated 23.09.2015 on the basis of the ApplicationNo. 14C,in view of the decision of this Court in Kedarnath v. MohanLal Kesarwariand others1,the Trial Court found that the appellant hadcomplied with Section 17(1) of the Act in relation to depositing the decretalamount and also in view of the High Court order about surety being‘admitted’ it was found that the surety submitted by the appellants wasalso sufficient. It further proceeded to find that service of summonscould not be inferred on the appellants.Therefore, the application underOrder IX Rule 13, (4C) was allowed with cost of Rs.1500. This Orderwas, inturn, challenged before the Additional District Judge, Kanpur(Urban).By Order dated 01.08.2017,the Orders dated 07.12.2016,23.09.2015 and 04.10.2016 were ‘dismissed’ and it was found, inter alia,as follows:“26. In the apparent view of this Court in judicial citation i.e.Kedarnath (above), the Hon’ble Supreme Court established theprinciple, such principle completely clarified in the judicial citationi.e. Rajkumar Makhija

(above) by the Bench of Hon’ble HighCourt. If it is any previously established legal principle contrary toabove both legal principles, in such circumstances, it cannot begiven preference to established principle in the same. It ismandatory and prior to considering the revision application, theLearned Trial Court must satisfy by this fact that whether theabove section 17 has been complied or not? and Such kind ofsatisfaction cannot be left for later stage. In the present case, itwas presented the application i.e. document no. 28C under section17 of Provincial Small Cause Act, in fact till date, it is not passedany order on the same and on 23.09.2015 the application dismissedon the ground that it has already been passed order on theapplication i.e. document no. 34C. The application i.e. documentno. 34C had been presented only with the intention that the suretyis to be taken on record, which was admitted by Court, it meansthe surety had been taken on record, but this order cannot beconsidered that the surety was admitted by considering/ inferringsufficient. Thereafter again, when on the direction of Court, itwas presented the applications i.e. document nos. 90C and 102Con behalf of defendant, in such circumstances; it was not passed1AIR2002 SC 582ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH738SUPREME COURT REPORTS[2023] 5 S.C.R.any appropriate order on

such applications. If it is observed inthese circumstances, it is not placed any order for admitting surety,in absence of the same, it cannot be inferred/ considered to notcomplyin any condition to the provisions of section 17 of ProvincialSmall Cause Act, but as the principle established by Hon’bleSupreme Court in the case of Kedarnath that in the condition ofcausing delay in passing order on the part of Court, the defendantcannot be declared guilty/ defaulter, in the present case also, thisRevision Court cannot declare guilty/ defaulter to the defendants.27. Whether the defendant complied the provisions of section 17of Provincial Small Cause Court Act or not? It is the question ofone fact and it can only be decided/ adjudicated by Learned TrialCourt accordingly. In such circumstances, it was not in accordanceof stipulated provisions of law toadmitted revision petitioner withoutconcrete conclusion in relation of compliance of above section 17and the impugned order is liable to be set aside.”(Emphasis supplied)8. It was thereafter ordered as follows:“The revision is admitted. The impugned order dated07.12.2016 and orders dated 23.09.2015 and 04.10.2016respectively are dismissed and it is direction to Learned TrialCourt that firstly, in the light of objections of plaintiff, passthe decree after compliance of section 17 of Provincial SmallCause Act or non-compliance in relation

its report ondeposited amount and presented surety i.e. document nos.16C/36C and thereafter pass the appropriate order inaccordance of stipulated provisions of law on hearing theparties on revision petition. In the facts and circumstances ofpresent case, the parties shall afford their respective incurredexpenses. Return the record file. The parties are directed toappear on 24.08.2017 before Ld. Trial Court”.(Emphasis supplied)9. On the basis of the aforesaid order the Trial Court by orderdated 11.02.2019 rejected the application under Section 17 dated06.05.2014 and also the application dated 12.05.2015. The surety providedby the appellants was also rejected. This order was confirmed by theADJ by Order dated 26.02.2021 in revision filed by the appellants. It ABCDEFGH739was found that the Order dated 01.08.2017 passed by the ADJ wasbinding on the Trial Court. We notice the following reasoning:“ … It is apparent on the basis of above whole discussion thatapplicant no. 3 namely Abhishek Dixit is not owner of the land ofshop, of which, it was presented the surety of shop by the applicantno. 3 namely Abhishek Dixit on behalf of revisionists/ applicantsand the ownership of above land of shop is vested in MunicipalCorporation Kanpur Metropolitan, Kanpur. Therefore, under theprovisions of section 145 of Civil Procedure Code, the surety cannotbe recovered by selling the said shop as it

is vested ownershipright of Municipal Corporation, Kanpur Metropolitan, Kanpur onthe said land of shop. The applicant no. 3 namely Abhishek Dixitis not owner of said land of shop. …… In accordance of principle established by the Bench of Hon’bleHigh Court in judicial citation/ judgment i.e. Rajkumar Makheja&Others Versus M/s. S.K.S. & Company & Others, 2012 (3) A.R.C.117, now it cannot be granted/ extended the time limit to therevisionists for presenting surety at this stage as now, the limitationperiod of presenting the surety has been ceased. In this way, it isclear that applicants/ revisionists have completely not compliedthe provisions of section 17 of Provincial Small Cause Act.”10. The appellants thereupon filed a Writ Petition before the HighCourt of Allahabad by challenging the Order dated 01.08.2017 passedby the ADJ, the Order dated 11.02.2019 passed by the Trial Court andthe order dated 26.02.2021 passed by the ADJ. Further order dated09.03.2021 passed by the ADJ in Execution Case, ordering the evictionof the appellants based on the ex-parte decree, was also challenged.11. By the impugned Order, the High Court has dismissed the saidWrit Petition.It was, inter alia, found by the High Court that noApplication for dispensing with surety was filed. Rather permission wassought for the security being given. It was further found that therequirement of Section 17 is mandatory

and filing of application withoutfurnishing surety and making no prayer for dispensing would be readagainst the appellants. It was found that only an Application (14C) wasfiled on 12.05.2014, wherein the only prayer was to keep the ‘Applicationon record’. On 24.05.2014, Order was passed for keeping the Applicationon record. There was neither any prayer for accepting the surety towardsARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH740SUPREME COURT REPORTS[2023] 5 S.C.R.the part of the decretal amount nor any such Order was passed. TheApplication (14C), it was found, was made after the filing of theApplication under Order IX Rule 13 of the CPC. The security for theamount of Rs.50,000/- was submitted on 24.05.2014. This Court inKedarnath (supra), it was found, has not held that where the incompetentsurety had been furnished, the Court may dispense with the same. Itwas also found the Judgments relied upon by the appellants would notapply as instead of making prayer before the Trial Court to furnishappropriate security, prior to the Order dated 23.09.2015 was passed,the appellants resorted to litigation and at no stage they offered anysurety as per law. The concession by a Counsel regarding a question oflaw, it was found, was not binding on the party. This is by way of dealingwith the submission of the appellants based on the statement of theSenior Counsel

for the plaintiffs, as seen reflected on the Order of theHigh Court, which we have extracted.12. We have heard Shri Pranaya Kumar Mohapatra on behalf ofthe appellants.We have also heard Sh. S.R. Singh, learned Senior Counselon behalf of the respondents.THE CONTENTIONS OF THE APPELLANTS13. The appellants had moved the Application under Order IXRule 13 of the CPC as well as the Application under Section 17 of theAct on the same day, i.e., 06.05.2014. The Trial Court did not pass anyOrder on the Application under Section 17 dated 06.05.2014. TheApplication under Section 17 being filed on the same day as an Applicationunder Order IX Rule 13, was validly filed in terms of the Judgment ofthis Court in Kedarnath (supra). There was a fault on the part of theCourt in not passing Order on the Application under Section 17 filed on06.05.2014. The appellants cannot be made to suffer on account of thefault of the Court. On 24.05.2014, the Application filed for taking onrecord the security, was accepted. The prayer in the application (14C)was ‘TAKEN ON RECORDS’.The earlier Application dated 06.05.2014,under Section 17, was pending consideration. The security, which wasaccepted, was Shop No.

25. The same was allotted by the MunicipalCouncil, Kanpur. For the allotment, a sum of Rs.85,000/- had beenreceived by the Local Body, which had been deposited. Once the securitywas accepted, any insufficiency found after the prescribed period, cannotbe laid at the doorstep of the appellants. Reliance is placed on theJudgment of the Full Bench of the Allahabad High Court in the case of ABCDEFGH741Bhagwandas Arora v. First ADJ Rampur. Also, reliance is placed onthe decision of this Court reported in Bhagwan Dass Arora v. FirstAdditional District Judge, Rampur and others2. The Trial Court passedOrder on security after two years, viz., on 29.03.2015 with the expression‘inappropriate security’. The Trial Court had to give direction onsufficiency of security within the prescribed period. If that had beenpassed and the Trial Court raises questions about sufficiency of thesecurity, the appellants could not have submitted other security or cashwithout the Order of the Court. Reliance is placed on the Order dated03.12.2015 passed by the High Court. In view of the Order passed bythe High Court, in the hierarchical system, the ADJ erred in overlookingthe Order of the High Court. We are reminded that the Order of theADJ dated 01.08.2017 was also challenged before the High Court in theWrit Petition. The merits of the case must be considered.THE SUBMISSIONS OF RESPONDENTS 1 TO 614. The

requirements under Section 17 are mandatory. Securitywas not filed on 06.05.2014 but on 24.05.2014. Therefore, the mandatorycondition in proviso to Section 17(1) was not complied with.The Courtshould have passed an Order on the Application under Section 17(8C)dated 06.05.2014 indicating the nature of the security, that would besufficient for the performance of the Decree. However, it was contendedthat it is not forthcoming as to why appellants did not press the Applicationunder Section 17 dated 06.05.2014 and also filed other Application forsecurity. Therefore, the failure on the part of the Court to pass Orderson the Application dated 06.05.2014 under Section 17 could not be afactor entitling appellants to contend that in the absence of an Order,they were prejudiced. This is for the reason that they are presumed toknow, having regard to Section 17(2) of the Act, that security must besuch as may be enforceable in law. The security, which was furnished,consisted of a shop room, which belonged to the Municipal Corporationand not to Shri Abhishek Dixit (the surety) who was the third WritPetitioner and who is shown as Proforma Respondent No.7 in the Appeal.The security was not enforceable. The period of limitation for providingsecurity had expired. While an Application under Section 17 can be filedwith application under Order IX Rule 13, the security must be filed alongwith the

Application. Otherwise, it may not be possible for the Court tofind whether the security, which was filed, was in conformity of the2(1983) 4 SCC 1ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH742SUPREME COURT REPORTS[2023] 5 S.C.R.Section 17(2) of the Act. Even assuming that the security could befurnished subsequently, the subsequently furnished security was notenforceable in law. The Application under Order IX Rule 13 has notbeen rejected on the ground that security was not furnished but on theground that the security furnished on 12.05.2014 (Application 14C) wasnot a valid security. Therefore, the plea that the appellants cannot sufferon account of the fault of the Court, does not arise.ANALYSIS; 3 DECISIONS;KEDARNATH (SUPRA)15. We have already set out Section 17 of the Act. It is necessaryto notice that in Kedarnath (supra), this Court, inter alia, held as follows:“8. A bare reading of the provision shows that the legislature haschosen to couch the language of the proviso in a mandatory formand we see no reason to interpret, construe and hold the nature ofthe proviso as directory. An application seeking to set aside an exparte decree passed by a Court of Small Causes or for a reviewof its judgment must be accompanied by a deposit in the court ofthe amount due from the applicant under the decree or in pursuanceof the judgment. The provision as to

deposit can be dispensedwith by the court in its discretion subject to a previous applicationby the applicant seeking direction of the court for leave to furnishsecurity and the nature thereof. The proviso does not provide forthe extent of time by which such application for dispensation maybe filed. We think that it may be filed at any time up to the time ofpresentation of application for setting aside ex parte decree or forreview and the court may treat it as a previous application. Theobligation of the applicant is to move a previous application fordispensation. It is then for the court to make a prompt order. Thedelay on the part of the court in passing an appropriate orderwould not be held against the applicant because none can be madeto suffer for the fault of the court.9. In the case at hand, the application for setting aside ex partedecree was not accompanied by deposit in the court of the amountdue and payable by the applicant under the decree. The applicantalso did not move any application for dispensing with deposit andseeking leave of the court for furnishing such security for theperformance of the decree as the court may have directed. Theapplication for setting aside the decree was therefore incompetent.It could not have been entertained and allowed. ABCDEFGH743(Emphasis supplied)THE FULL BENCH IN RAM BHAROSE16. Since the appellants have also relied upon the

Judgment of theFull Bench of the High Court of Allahabad, we deem it appropriate toadvert to the same, i.e., Ram Bharose v. Ganga Singh3. The Full Benchof the High Court was dealing with the following facts:The Application under Order IX Rule 13 wasaccompanied by a security bond to cover the decretal amount.One of the questions, which arose was, as to whether theApplication was not maintainable in as much as the directionof the Court had not been obtained in regard to the deposit ofthe decretal amount or the filing of the security in terms of theproviso to Section 17 of the Act. Three separate opinions werepronounced. In the opinion rendered by Mukherjee, J., weconsider it appropriate to refer to the following:“17. Now I come to consider the second point. On a plainreading of Section 17,Provincial Small Cause Courts Act,the applicant for the setting aside of a judgment hasto dothese things: To start with, he ought to apply to the Court towhich he proposes to make an application, to tell him whatkind of security, in the circumstances detailed in theapplicant’s application, the Court would require of him tofurnish. Usually the Court would ask for a cash security,but it may be satisfied on the applicant’s representation thata cash security may be dispensed with. In rare cases, as intheillustration given by me in my judgment in JhabbooMisir’scase, cited below, the Courtmay refuse

to take a cashsecurity and may insist on other kind of security beingtakenand may insist on the move-able property in disputebeing itself produced. When the Court gives its direction,namely, whether the applicant is to furnish cash security oris to give some other kind of security, the applicant shouldpresent his application for setting aside the decree, togetherwith the security demanded. Then his duties are over. Thesecurity filed will then be scrutinized by the Court, and theCourt shall see whether the security is to its satisfaction.3AIR 1931 Allahabad 727ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH744SUPREME COURT REPORTS[2023] 5 S.C.R.Then ‘presumably a notice would go to the plaintiff toshowcause why the decree should not be set aside. This wasalso the view which I tookin the case of JhabbooMisir v.Howladar Tewari.18. Although the rule (Section 17, Small Cause Court Act),requires that the security is to be furnished at the time ofpresenting an application for setting an ex parte decree, ithas been held in this Court in Moti Lal Ram Chandar Das.v. Durga Prasad MANU/UP/0193/1930 : AIR1930All830that the security may be furnished even after the applicationhas been made provided the security is forthcoming withinthe period of 30 days of limitation. To this decision I was aparty. This view was taken by other HighCourts also : seeV. M. Assan Mohamad

Sahib v. M.E. Rahim Sahib [1920]43 Mad. 579,JenuMuchi v. BudhiramMuchi [1905] 32 Cal.339 and Narain v. PudanMANU/OU/0001/1929. Thereason of this decision is that the previously madeapplicationmay be taken as made on the date on which the securitywas furnished, asthe period of limitation has not yet expired,and it would be a mere formality (whichmay be safelydispensed with) to direct the applicant to file a freshapplication on theday when he furnishes the security.xxxxxxxxx20. Where an applicant, without formally applying for theCourt’s direction, makes anapplication for setting aside anex parte decree and furnishes security with it, and theCourtdirects a notice to issue to the other side, it must be takenthat the Court iscognizant of the fact that the applicant hasfurnished security as required by Section 17,Small CauseCourts Act. The order that notice should issue may be takenas an approvalby the Court of the security furnished, in thecircumstances disclosed by the applicant inhis applicationand affidavit (if any). We may also take it that, the Court,by implication,gave the applicant a direction that he shouldfurnish security of the kind actuallyfurnished by him. Thisis not a more attempt to get over what may be believed toberather hard directions of the law. If the Court instead ofissuing a notice in the case justmentioned, rejects this ABCDEFGH745application because its

direction has not been obtained, andiflimitation has not already expired, it would be open to theapplicant to make a freshapplication and to furnish suchsecurity as the Court may direct. A party cannot sufferbythe act of a Court, and therefore we must accept the positionthat the Court hasgiven the direction, according to law tothe furnishing of the security actually furnished,where theCourt instead of rejecting the application of the defendantdirects that anotice should issue.23. The conclusion that I arrive at; therefore is that theproper course is for a party to make an application to theCourt to obtain its direction as to the nature of the security,and then to apply with the security of the nature directedby the Court for setting aside the ex parte decree. Thesecurity furnished must comply with the directions of theCourt, and the Court will see that the security is to itssatisfaction, i. e., sufficient. Butwhere the Court adopts asecurity without question and directs a notice to issue, it,bynecessary implication, gives a direction that the securityshould be of the naturedirected by it ‘and that the securityfurnished is sufficient to its mind.”(Emphasis supplied)The view taken by Boys J., insofar as it is relevant, iscontained in the following paragraph:“37. The conclusion from this, then, is that no initial defectsin the making of theapplication must be allowed to stand

inthe way of the applicant getting a notice issuedto the decree-holder, provided that an application has been filed, andfurther that cashhas been deposited, or, if the Court has sopermitted, security has been given, allbefore the expiry of30 days. A reasonable and practical interpretation of thesection is therefore as follows: (1) the applicant must within30 days file his application either with cash or with a[statement that he is prepared to give security (and in thelatter case, he may, of course, tender the security heproposes and ask for the direction of the Court (2) In thecase where he wants to give security, if the Court refusesARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH746SUPREME COURT REPORTS[2023] 5 S.C.R.to direct (security, he must deposit cash within [the 30 days,or his application will be [rejected. (3) If the Court agreesto direct security, then (a) it will consider (the securityalready offered, if it has been so offered; or (b) namesecurity to its satisfaction which must be filed within the 30days. (4) If the applicant does not in fact ask for a directionor if,though the applicant does ask for a direction, the Courtdoes not in fact give anydirection, but in fact the Courtdoes issue notice, the Court shall be taken to haveapprovedthe deposit of cash or the security offered as the case maybe. (5) If filedwithin the 30 days and accepted

by the Courtexpressly or impliedly by the issue ofnotice the applicationis a good application, though it will be open to the decree-holderto challenge the nature land sufficiency of the securityand to the Court under Order 9,Rule 9 to make such furtherconditions as it thinks fit. In the course of the argumentithas been suggested that difficulty might arise if the Courtdelayed in giving itsdirection, or approving expressly orimpliedly the security already tendered, so longthat the periodof limitation had expired before the applicant had fairopportunity ofcomplying with the direction. It is not a casewhich we have now to consider, but in asuitable case itwould bet open to the Court itself to consider and exerciseits inherentpowers reserved to it by Section 151, Civil P.C.”(Emphasis supplied)Chief Justice Suleman concurred with the other Judges thatthe Revision must be dismissed and he, inter alia, held as follows:“46. No doubt the language of the proviso-is very unhappyand there is some apparentinconsistency between theexpression “ at the time of presenting his application “ andtheexpression “ as the Court may direct. “ If we take the twoexpressions literally, thetwo things cannot happen exactlysimultaneously. But the direction of the Court maybeobtained before the application is presented or just afterpresenting the application.47. It is quite clear to me that an application

cannot bepresented after the prescribedperiod, nor can cash orsecurity be deposited after the expiry of that period. The ABCDEFGH747Courtis not given any discretion at all to extend the time. Ifthe security deposited within thetime is discoveredafterwards to be defective or unsatisfactory in any way,the Court hasno power to direct a fresh security to besubstituted for it after the expiry of the period.52. Of course, the question whether the security is sufficientand satisfactory need notbe finally determined during theperiod of 30 days. Indeed, the plaintiff decree-holdermaycome in afterwards and challenge its sufficiency. The merefact that it is foundafterwards that the security wassufficient, would not make the deposit of the securitywithinthe time in any way defective.”BHAGWANDAS (SUPRA)17. As far as the Judgment of this Court in Bhagwandas (supra)is concerned, the relevant facts were as follows:A suit was decreed ex-parte on 06.08.1977. The appellantmoved an Application on the said day within the meaning of theproviso to Section 17 of the Act to permit him to furnish suchsecurity for the performance of the decree in lieu of cash dueunder the decree. On the same day, Court granted him permissionsubject to making a cash deposit for part and for the balance hehad to furnish the security. Thereafter, on the 31.08.1977, he movedthe Application under Order IX Rule 13 to set aside

the ex-partedecree. He also deposited the cash on 31.08.1977. On the basisof a defect pointed in the security bond on 21.09.1977, the Courtdirected the appellant to supply the defect, which consisted ofdeficient stamp in the security bond. The appellant complied withthe said Order. It was in these facts, the Court took the view thatthe Application of the appellant was wrongly rejected on the basisthat there was a legal infirmity in the bond as instead of it beingstamped under the Stamp Act it was stamped with court fee ofRs.2/.OUR FINDINGS18. When a Decree is passed by a Court of Small Causes ex-parte, inter alia, under the proviso to Section 17 of the Act, the applicant,who files an Application to set aside the ex-parte Decree is bound to dothe following:ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH748SUPREME COURT REPORTS[2023] 5 S.C.R.a.He must deposit in the Court, the amount due under theDecree;b.In the alternative, he should give security for theperformance of the Decree ‘on a previous Application’ madeby him in this behalf;19. In view of the Judgment of this Court in Kedarnath (supra),the words ‘on a previous application’ in proviso to Section 17, have beenunderstood to be an application, which may be made along with theapplication under Order IX Rule 13 of the CPC. On 06.05.2014, on thesame daythe Court ordered notice to be issued fixing

19.07.2014 as thedate.The execution proceeding was stayed till 19.07.2014. It could indeedbe said, that even notice being issued was permissible only aftercompliance with the proviso to Section 17 of the Act.The appellants hadfiled an Application under Order IX Rule 13 of the CPC and Section 17of the Act, on the same day. If the Application under Section 17 wasaccompanied with a cash deposit, then, the Application under Order IXRule 13 would have been, indeed, maintainable.The controversy arisesas in the Application dated 06.05.2014, filed under Section 17, theappellants sought for permission to deposit/furnish surety for a sum ofRs.50,000/- out of a total sum of Rs.98,624/-. No order was passed onthe said Application. On 12.05.2014, appellant moved an Application(14C). Therein, the appellant sought to furnish security in the form of ashop room of which the Proforma Respondent in this Appeal, ShriAbhishek Dixit was the tenant, but the owner was the MunicipalCorporation, Lucknow. On the said Application, the Court passed anOrder on 24.05.2014. It reads:“Order24.05.2014Today application has been filed on behalf of the judgment debtorDr. Aarti Dikshit for taking on record surety. Order passed.Allowed”.20. The contention of the appellants appears to be that theApplication dated 06.05.2014, was in order as it was filed along with theApplication under Order IX Rule 13 and it accords

with the law laiddown in Kedarnath (supra). Once such an Application is filed, it was theduty of the Court to pass an Order. The Court according to the appellants ABCDEFGH749had a duty to indicate as to whether the Application for permission togive security was allowed and in what form the security should befurnished. It was as no orders were passed, that the appellants on theirown filed Application and purported to furnish the security in the form ofthe rented shop. The High Court in its Order dated 03.12.2015, acceptedthe submission of the Counsel for the parties that the surety was acceptedby the Court on 25.04.2015 and the matter was directed to be decidedexpeditiously and on the said basis, the Trial Court had allowed theApplication under Order IX Rule 13.This order was set aside by theADJ by order dated 01.08.2017 on the basis that the order dated24.05.2014 did not mean that the security was accepted. The trial courtwas to consider the application dated 06.05.2014 on its own merits. Thiswas so ordered after finding that no order had been passed on theapplication dated 12.05.2014 accepting the security. It must be noticedthat the appellants did not challenge the Order dated 01.08.2017. Pursuantto the Order dated 01.08.2017, the Trial Court, by Order dated 11.02.2019,did not find merit in the case of the appellants and dismissed theApplication filed under Section 17 dated

06.05.2014 as also the Applicationdated 12.05.2014 and rejected the surety. It is this Order, which hasbeen upheld again by the ADJ by Order dated 26.02.2021 and then bythe High Court, by the impugned Order.21. On a literal interpretation of Section 17 of the Act, whichcontemplates the Application under Section 17 being filed before theApplication under Order IX Rule 13, whether appellants have made outa case. The first question, which we would have to consider is, whetherthe Application is in conformity with the proviso to Section 17. Did theapplicant furnish any security on 06.05.2014? The answer can only be inthe negative.The appellant did not seek for dispensing with deposit assuch. [See paragraph-9 of Kedarnath (supra)].Therefore, the appellanthad not in the said sense complied with the mandatory requirement ofSection 17. Next, was the prayer, viz., the request to permit the appellantto deposit/furnish security for a sum of Rs.50,000/- due under the Decreein consonance with Section 17? What was the duty of the Court in theface of such prayer under Section 17? Was the furnishing of the securityconsisting of the rented shop belonging to the Local Body, sufficientcompliance of Section 17? What is the effect of the application dated12.05.2014 and the order dated 25.05.2014 on the same which is obviouslyafter 06.05.2014 (the date of the application under Order IX Rule 13).ARTI

DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH750SUPREME COURT REPORTS[2023] 5 S.C.R.22. The High Court in the impugned order finds that no applicationfor dispensing with surety was filed and that this will be read against theappellants. The High Court perseveres in this observation on threeoccasions. We must observe that what Section 17 of the Act contemplatesin the proviso is that the applicant seeking to set aside an ex-parte decreeinter alia must either make a deposit of the amount in question or givesecurity. What this Court in Kedarnath (Supra) laid down was that theprovision as to deposit can be dispensed with by the Court. The applicantcan, in other words, seek a dispensing with of the deposit and seek leavefor furnishing such security as the Court may direct. Therefore, theHigh Court was not correct in proceeding on the basis that appellantsdid not make any application for dispensing with surety. No doubt, at oneplace, the High Court states that there is no prayer for dispensing withthe surety or the amount sought to be deposited by way of security. Theprayer of the appellants was to permit deposit/furnishing surety ofRs.50000/- which was part of the decretal amount. This could be treatedimpliedly as seeking a direction within the meaning of Section 17. Anapplicant could no doubt also propose the security which he wishes togive. In fact,

ordinarily, an application for dispensing with the cash depositand for direction to furnish security should be made prior to applicationunder Order IX Rule 13 of CPC. On the order passed on the same, theapplicant is to comply with the same and furnish the security at the timewhen he files the application under Order IX Rule 13. Since an applicationunder Section17 which is really required only in the absence of the cashdeposit can be filed up to the date of the application under Order IXRule 13 as held in Kedarnath (supra) ordinarily, the security must bemade available along with such application. There then arises the aspectthat the application under Order IX Rule 13 can be filed within 30 daysas provided in Article 123 of the Limitation Act. Undoubtedly, the depositor security must be furnished within 30 days as held by the full Bench ofthe Allahabad High Court in Ram Bharose (supra). This is on the basisthat the application can be made under Order IX Rule 13 upto the 30thday but at the same time, the conditions in the proviso, namely, the depositor the security must be furnished at the time of presenting the applicationunder Order IX Rule 13. But if the application under Section 17 can bemoved along with the application under Order IX Rule 13, then if adirection is required for furnishing security and the Court grants permissionand time, then it may be possible to furnish the

security only after thedate of the application under Order IX Rule 13. As held by this Court in ABCDEFGH751Kedarnath (supra), the Court is expected to pass an order promptly onthe application which may be filed under Section 17 which may be of thesame date as the application under Order IX Rule 13. Any delay on thepart of the Court cannot prejudice the applicant.23. In this case, the appellants filed the application both underSection 17 of the Act and under Order IX Rule 13 on the same day,namely, 06.05.2014. The application under Order IX Rule 13 is premisedon knowledge of the ex parte decree being obtained on 05.05.2014 inthe Execution Proceedings. There was no security offered on 06.05.2014.Though a direction as such was not expressly sought for but permissionwas sought for to furnish security, it could be said that in substance theappellants essentially sought for direction within the meaning of the provisoto Section 17. We have already found that the High Court was in error infinding that the appellants did not seek for dispensing with the security,and therefore, apparently holding the same against the appellants. Whenthe appellants sought for permission to furnish security, if the permissionwas granted and a direction to furnish security was given on the samedate and it had been complied with within the time, then the appellantswould have been compliant with Section 17.

No orders were passed onthe application under Section 17 dated 06.05.2014. Within 6 days, on12.05.2014, the appellants on their own purported to furnish security.The surety was one Abhishek Dixit (the 3rd writ petitioner who is the 7thproforma respondent in the appeal). The security was however, a shop.The shop was not owned by the surety. The Municipal Corporation,Lucknow was the owner. The surety was a tenant. A security to beprovided under Section 17 by a surety is to be enforced under theprovisions of Section 145 of the Code of Civil Procedure as contemplatedin Section 17 (2) of the Act. Section 145 of the CPC inter alia providesthat the security provided by a surety can be enforced by effecting saleof the property. The courts in this case have held that the security providedby the appellants through the surety is not acceptable in law havingregard to Section 17 (2) as the shop belonged to the MunicipalCorporation, Lucknow and it could not be sold for enforcing the surety.24. While it is true that no order was passed on the applicationunder Section 17 on 06.05.2014, the fact remains that the appellants ontheir own furnished a surety as stated. The High Court reasons that thesecurity so provided was unacceptable on two grounds. Firstly, it wasnot furnished along with the application under Order IX Rule 13 on06.05.2014. Secondly, it is found that it was not acceptable in

law.ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.] ABCDEFGH752SUPREME COURT REPORTS[2023] 5 S.C.R.25. It is true that the High Court in the order dated 03.12.2015proceeded to find that the “security was accepted by the court below”.This is by way of accepting the submission of the counsel for theplaintiffs. It was on this basis that the matter was remanded. Followingthe remand, the trial court allowed the application filed by the appellantsand also the application under Order IX Rule 13. This has been set asideas noticed by us by the ADJ and the matters stood remanded back byOrder dated 01.08.2017. This order was not challenged by the appellants.It is thereafter that the courts have concurrently found that there wasnon-compliance of Section 17. The earlier order of the High court dated03.12.2015 has been overcome by finding that there was a sweepingstatement before the High Court in the earlier round that the suretyfurnished had been accepted. The High Court further finds that actuallythe prayer made in application dated 12.05.2014 was only to take thesurety on record. The order dated 25.04.2014 only shows that only thesurety was taken on record. It is further found that the application dated12.05.2014 was filed after 06.05.2014 and could not be the basis for avalid order under Section 17.26. We are in agreement with the courts that the security furnishedby the

appellants in the form of the rented shop belonging to a third partycannot be accepted as security in law. It is patent. It is not clear fromthe order dated 24.05.2014 that the Court had applied its mind to thesufficiency of the security or as to whether it was acceptable security.If security is given, which is later found to be unacceptable even if it iswithin 30 days within the meaning of Article 123 of the Limitation Act,then it would not be complying with Section 17 [see the observations ofthe full Bench of the Allahabad High court in Ram Bharose (supra)].27. While it is true that there may have been a failure on the partof the court to pass orders on the application dated 06.05.2014 apparently,the appellants proceeded to furnish the security in this case on 12.05.2014.Therefore, we proceed on the basis that within 30 days of the date ofknowledge of the decree, as alleged by the appellants, but after the dateof the application under Order IX Rule 13, the appellants have furnishedsecurity. We are mindful of the fact that no order was passed by theCourt on 06.05.2014. Even proceeding to consider the security howeverwe would find that it is clearly unacceptable in law. The effect of theorder of the High Court dated 03.12.2015 must be understood withreference to the concession made by the counsel and may not withstand ABCDEFGH753the requirement of law under Section 17 of the

Act being fulfilled. Wecannot be unmindful of the fact that the appellants did not challenge theorder of the Additional District Judge dated 01.08.2017. The trial Judgewas bound by the same as the appellants did not challenge the orderdated 01.08.2017. The fact that the appellants, after participating in theremanded proceedings mounted a challenge in a writ to the order dated01.08.2017 appears to us as not advancing the case of the appellants.This is both for the reason of the belated challenge as also the nature ofthe earlier order involved.28. In the facts, having regard to the Order dated 01.08.2017 andthe security being found unacceptable, we find no merit in the appealgenerated by special leave. The appeal will stand dismissed. There shallbe no order as to costs.Nidhi JainAppeal dismissed.(Assisted by : Rakhi, LCRA)ARTI DIXIT & ANR v. SUSHIL KUMAR MISHRA & ORS[K. M. JOSEPH, J.]