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Introduction
The term Caveat has been defined out from Latin which signifies “let a person be aware”. Though caveat is not being defined under the Code of Civil Procedure, the right and procedure to file a caveat have been provided under Section 148A.
The said provision has been enacted by the amendment to Code to Civil Procedure, 1976. Prior to this the Supreme Court already laid down the provisions for Caveat under Supreme Court Rules[1] before it was enacted. The Law Commission, in there Fifty-fourth report also prescribed for the inclusion of such provision in the Code of Civil Procedure.[2]
Intention
The aim of Section 148A is to protect the right of a party to suit where an adverse order of ex parte may be passed without any information, notice or summons.
The object of the section is two-fold. First, it provides an opportunity for the opposite party to be heard before an order is passed and to show cause why the order should not be passed. Secondly, it avoids multiplicity of proceedings, because if such a provision was not there, the affected person would have to file a separate proceeding to have the adverse order set aside.[3]
Scope
The proviso of Section 148A provides that a caveat can be filed in a suit or proceeding. Though, some High Courts are of the view that no caveat can be lodged in a first or second appeal or execution procedures. But as observed by Supreme Court in Ram Chandra Aggarwal v. Detail of U.P.[4],
“the expression Civil Proceeding under section 141 of the code includes all proceedings which are not original proceedings”.
In this manner, the provision with regard to caveat would be made applicable to suits, appeals, and any further proceedings under the Code of Civil Procedure or under various legislation.[5]
It is true that no order can be passed in a caveat against the caveator (person lodging the caveat) unless he is heard, but if he is not present during the time of hearing of the application and the court finds that there exists a prima facie case in favour of the applicant, ad-interim relief can be granted” to the caveator.
In RBI Employees Association v. RBI,[6] “It was held that interim order passed without giving notice to the caveator is not without jurisdiction and is valid until it is set aside in appropriate proceedings.
Sub-section (1) empowers an individual asserting the privilege to show up at the hearing of the application for an interim order to file a caveat. Sub-section (2) requires such a caveator to serve a notice of his caveat on the individual by whom an application for an interim order has been or is expected to be made. Sub-section (3) requires the court, before such an order is made, to serve notice of it to the caveator and sub-section (4) requires the petitioner to serve on the caveator a duplicate copy of the application, together with any papers or documents or documents proposed to be recorded to support his application.
With the newly added sub-section (5) which provides that a caveat lodged under sub-section (1) ought not to remain in force for an indefinite period. However, a period breaking point of 90 days has been endorsed from the date of its filing,[7] after the endorsed time of 90 days is finished, the caveat might be restored unless another application is made before the expiry of that period.[8]
Who can Apply for a caveat
Sub-section (1) of Section 148A endorses necessary requirements for the individual who wants to file a caveat. He should be a person having proper right to appear before the court during the hearing “of the application, which the party may move for the award of interim relief.” As proviso of sub-section (1) is widened enough not only to incorporate a necessary party but even an appropriate party.
Consequently, “a caveat can be filed by any individual who will be affected by an interim order foreseeable to be passed on an application which is expected to be made in a suit or” proceeding initiated or going to be initiated in a court[9].
Applicability
The proviso of Section 148A of the code can be applied in situations where the caveator is qualified to be heard before any order is passed on the application already pending.
Filing of Caveat
A caveat may, subsequently, be documented as “a petition wherein the caveator needs to indicate the nature of the application which is expected to be made or has been made” and furthermore his rights/entitlement to show up before the court at the time of hearing of such application.[10] “The Registry of the court will keep a register wherein” entries will be made of the recording of caveats.[11]
When a caveat is filed, the caveator must “serve a notice of the caveat by registered post, acknowledgement due, on the person upon whom the application has been made or is expected to be made. Thereafter, if an application is filed in any suit or proceedings, the court must serve a notice of the application on the caveator. The provision of the code obliges the applicant who has been issued with a caveat to equip the caveator,” at the caveator’s cost, a copy of the application alongside copies of papers and records filed together by him to take up the cudgels for his application.[12]
Where to lodge a Caveat
A caveat can be filed in any Civil Court of original jurisdiction, Appellate Court, High Court as well as Supreme Court. Civil Courts include Courts of Small Causes, Tribunals, Forums, and Commissions.
A caveat is only applicable to proceedings under the code and is not applicable to proceedings under Article 226 of the Constitution of India or execution proceedings under Criminal Procedure Code.
Hearing
The objective for the Legislature in ratifying the provision of caveat is to enable the caveator to be heard before any adverse order is passed and no ex parte decree is passed by the court, such hearing is mandatory.[13] Hence, it is obvious “that once a caveat is filed, it is a condition point of reference for passing an interim order to serve a notice of the application on the caveator who will be influenced by the interim” order.[14] Unless the above-mentioned condition is not satisfied, the court will have no right to pass an interim order impacting the caveator, else it will vanquish the very integrity of Section 148A.[15]
It furthermore can’t be affirmed that the caveator is required to be heard during the hearing of passing an ex parte order at the initial stage, however, can be heard during the final order hearing is taken up. [16] This proportion would make the proviso of Section 148-A useless and not effective in light of the way that, even without Section 148A, passing a final order or decree would be contrary if the opposite party is not provided with adequate opportunity to be heard.[17] That is a sine qua non of natural justice. Along these lines, when a caveat is lodged, “it is the duty of the court to hear the caveator before passing any interim order against him. In any case, an interim order without hearing the caveator isn’t without jurisdiction and scope, until set aside” by the appellate authority.[18]
Conclusion
The aforestated provision of Section 148A has provided security to individuals who are frightened to have a case filed against them in a court. Although the validity of a caveat for 90 days has been explained in the provision, there is no clear explanation regarding vacating of the caveat before the due date. It is very important to issue a notice after filing of a caveat; else the legislative intent would be at stake.
[1] Supreme Court Rules, 1966, Or. 19 R.2
[2] Law Commission’s Fifty-fourth Report at Page-118
[3] Nirmal Chandra v. Girindra Narayan, AIR 1978 Cal 492
[4] AIR 1966 SC 1888
[5] Chandrajit v. Ganeshiya, AIR 1987 All 360
[6] AIR 1981 AP 246
[7] Pashupati Nath v. Registrar, Coop. Societies, AIR 1983 Raj 191
[8] H.G. Shankar Narayan v. State of Rajasthan, AIR 1985 Raj 156
[9] Siddalingappa v. G.C. Veeranna, AIR 1981 Kant 242
[10] See Supra Note 2
[11] See Supra Note 6
[12] Nova Granites (India) Ltd. v. Craft (Bangalore) (P) Ltd., (1994) I Civ LJ 711 (Kant)
[13] See Supra Note 2
[14] Mahadev Govind Gharge v. Land Acquisition Officer, (2011) 6 SCC 321
[15] G.C. Siddalingappa v. G.C. Veeranna, AIR 1981 Kant 242
[16] Kandla Port Trust v. Mulraj, (1986) 27 (I) GLR 442
[17] Enamul Horo v. Harbans Kaur, (1995) 2 BLJR 1136
[18] Employees Assn. v. RBI, AIR 1981 AP 246
Helpful article.