Caveat

Caveat under section 148A code of civil procedure 1908

1. NEED OF CAVEAT IN PRESENT INDIAN LEGAL SY S TEM: A CRITICAL APPRAISAL Shakuntla Sangam Assistant Professor Dr. Ram Manohar Lohiya National Law University Lucknow

2. CAVEAT Caveat means a caution or warning to the court not to issue any grant without giving opportunity to the person lodging the caveat

3. LEGISLATIVE CHANGES Section 148 A has been introduced in the present code by the code of Civil procedure(Amendment) Act, 1976.

4. DEFINITION OF CAVEAT Not defined in CPC In the case of Nirmal Chand v Girindra Narayan , AIR 1978 Cal 492 as given by the Hon’ble Court “ A caveat is a caution or warning given by a person to the court not to take any action or grant relief to the other side without giving notice to the caveator and without affording opportunity of hearing him”.

5. OBJECT To safe guard the interest of caveator , who is ready to face the suit or proceedings whic h is expected to be instituted by his opponent affording opportunity to hear before an ex parte order is made. To avoid multiplicity of proceedings . Thus it saves the expenses costs and conveniences of the Courts.

6. PURPOSE A caveat may be lodged with a view to opposing an application and not for the purpose of supporting an application that has been filed or is expected to be filed by a party in a suit or proceeding. In fact, caveat is a shield by using which Person can prevent ex-parte order.

7. WHO MAY LODGE? Any person claiming right to be appear before court on hearing of an application, when such application is expected to be made/has been made is suit/proceedings /instituted/expected to be instituted in court, may lodge a caveat in that respect.

8. NATURE Section 148 A Civil Procedure Code Sub-Section (1) S ubstantive Statutory right to lodge caveat in civil proceedings (2) Directive in nature To serve a notice of caveat to applicant (3) Mandatory Costs obligation on court to serve notice (4) Directive To furnish a copy of an application and documents

9. SCOPE Any party affected by interim order can file caveat. ( Nirmal Chandra v. Girindra Narayan (1978)) Person who is total stranger to proceeding cannot lodge caveat. ( Rattil Parkkum v. Mannil Paadikayil )

10. APPLICABILITY In testamentary proceedings Indian succession Act 1925 (section 284 ) Suits and other proceedings( appeal, revision, execution) Code of civil Procedure 1908 (section 148 A) Writ petition Industrial court or Labour court ( Ram Chandra v. State of Up ., AIR 1966 SC 188)

11. TIME LIMIT The caveat petition remains in force only for 90 days and if during that duration no case gets filed from the opposite side then caveator has to again file a fresh caveat petition as new in the court.

12. WHERE CAVEAT DOES NOT LIE? Proceedings under Article 226 of the Constitution of India. ( Harikishnan v. Jacob , AIR 2005 Ker 220) Execution proceedings. Jayarama v. Ajjanna on 26 September, 1986(ILR 1986 KAR 3583) Proceedings under Criminal Procedure Code .( Ms. Nisha Priya Bhatia v. High Court on 22 July, 2011)

13. WHEN CAVEAT IS NOT MAINTAINABLE Lodged with a view to supporting an application that has been filed or is expected to be filed by a party in a suit or proceeding. The caveat is filed in collusion.

14. LAND MARK JUDGEMENTS Siddalingappa G.C. v. G.C. Veerana , 1981 (2) KLJ 323 If a party has a right to file the caveat and order is passed without hearing him, then such an order passed becomes bad at law and thus is unenforceable. Reserve Bank of India Employees Association v. RBI 1966 SCR (1) 25 without serving them a notice and without hearing them. The ex parte interim order was held to be bad by the Supreme Court

15. LAND MARK JUDGEMENTS ( St of Karnataka v. Nil 1995) When there is uncertainty as to who is likely to file app., court may allow caveat without naming applicant & serving notice . Employees' Asso . v. RBI (1981) court must notify caveator when any order is passed but in case interim order is passed without notifying, then such order is not without jurisdiction.

16. VACVATING AND WITHDRAWL OF CAVEAT Vacating Caveat Petition is not clear, so once it will be registered then it will be in force for a period 90 days ! Withdrawal of Caveat Petition is also in same position!

17. FORMATE No form is prescribed for the caveat. The caveator may file a caveat in the form an application or petition before the court submitting, the cause of action, giving the name and description of the opponent.

18. IMPORTANT POINTS Caveat can be filed only to oppose the application and not to support. Notice upon the caveator for the date of hearing of the application is a must. It is a mandatory under the Section 148-A In the execution of the decree, Orders 21 Rule 22& 37 enact for the issue of a notice to the judgments debtor, under some given circumstances. This gives the meaning that in cases not covered by such provisions, notice of execution is not necessary. Therefore, the judgment debtor is not entitled to a notice of an execution of a decree at the initial stage by lodging a caveat anticipating such an execution.

19. POINTS FOR CONSIDERATIONS Section 148A, it does not give a right to the party to file a caveat in all the execution cases. As per sub-section (3) of Section 148-A of the code the Court is bound to serve a notice of the application, on caveator , before passing an interim order thereof. No procedure provided as in sub section (2).

20. POINTS FOR CONSIDERATIONS 3. As per sub section (2) notice shall be served but no stage is mention such as prior to filing the caveat or at the time of filing in the code. 4. If order has been passed without notice to the caveator it would be only unenforceable. 5. Vacating Caveat Petition is not clear

21. POINTS FOR CONSIDERATIONS 6. If the judgment-debtor is able to show that he has got a right to appear before the Court, then only he/she can lodge caveat. 7. No form is prescribed for the caveat CPC

22. POINTS FOR CONSIDERATIONS 8. As section 148A provides a substantive right to lodge the caveat. 9. Sub-section (2) of Section 148-A provides procedure to access that right should not be taken away by non compliance of such provision.

23. CONCLUSION No doubt the said parameters by interpretative process can be stretched in order to effectively carry out the legislative intent but while doing so, the essential contents of the statutory provisions and its very workability cannot be put to a stake thereby nullifying the right of the applicant to the proceedings and virtually creating an impossibility for the Courts to comply with the legislative mandate contained under sub-section (3) of Section 148-A of the Code .

24. THANK YOU!