Caveat

CIVIL PROCEDURE PROCEDURE CODE

TOPIC: Caveat

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ACKNOWLEDGEMENT

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2

CONTENT,

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I*t!odu(tio* Natu!e 0 ,(oe O-+e(t 3o!# W%o #a$ lod'e Caveat W%e* Caveat #a$ -e lod'ed W%e* Caveat doe" *ot lie Noti(e Ri'%t" a*d Dutie" a) O& Caveato! -) O& Ali(a*t () O& Cou!t .9) 3ailu!e to %ea! Caveato!: E&&e(t ..) Ti#e Li#it ./)La*d#a!k ud'#e*t" .1)Va(ati*' a*d wit% d!awl o& (aveat .2)Co*(lu"io*

A;;REVIATION, 3

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,)C) V 0 u>" CPC ,t)

< ,u!e#e Cou!t < Ve!"u" = A*d < U*de! "e(tio* < Civil !o(edu!e (ode < ,tate

INTRODUCTION

Meaning of the term "caveat" has not been defined in the Code. The word (caveat) has been derived from Lati* which means "-ewa!e". According to the 4

dictionary meaning,' "a (aveat i" a* e*t!$ #ade i* t%e -ook" o& t%e o&&i(e" o&  a !e'i"t!$ o! (ou!t to !eve*t a (e!tai* "te -ei*' take* wit%out !eviou" *oti(e to t%e e!"o* e*te!i*' t%e (aveat ". In other words, a caveat is a caution or warning given by a arty to the court not to ta!e any action or grant any reief  to the aicant without notice or intimation being given to the arty odging the caveat#  and interested in aearing and ob$ecting to such reief. It is very common in testamentary roceedings. It is a recautionary measure ta!en against the grant of robate or etters of administration, as the case may be, by the erson odging the caveat.' The erson fiing or odging a caveat is caed "caveator". %ection .27=A of the Code o& Civil P!o(edu!e  rovides for odging of a caveat&. Caveat aication in the Indian court means that you are reuesting any court that if in case a secified erson or organiation fies a case in the court in which you are having some vaid interest, than no order shoud be assed by that on'be court without giving you a notice about that case being fied and aso without istening your side in that matter.* Caveat etition is a recautionary measure which is underta!en by eoe usuay when they are having very strong arehension that some case is going to be fied in the court regarding their interest in any manner.  The caveat etition remains in force ony for + days and if during that duration no case gets fied from the oosite side than one has to again fie a fresh caveat  etition as new in the court.ne has to ceary secify the name of the oosite arty whom one arehends to fie a case against. In the case of Ni!#al C%a*d v Gi!i*d!a Na!a$a* 4 , as given by the on/be Court 0A caveat is a caution or warning given by a erson to the court not to 1 http://www.slideshare.net/shakuntla1/caveat-31607086 2 Takwani C..! Civil "r#cedure! $i%th &diti#n! &astern '##k c#(pan)! p - 722 3 http://acc#untskn#wled*ehu'.'l#*sp#t.in/2012/04/what-is-caveat.ht(l 4 +r. ,ain sh#k .! C#de # Civil "r#cedure! scent pu'licati#ns! p - 7   178 cal 42 

ta!e any action or grant reief to the other side without giving notice to the caveator and without affording oortunity of hearing him1.

NATURE 0 ,COPE

%ection #-23A, as inserted by the Amendment Act, #+45 is a sautary rovision. It aows a erson to odge a caveat in a suit or roceeding instituted or about to  be instituted against him. It reads as under65 (#) 7here an aication is e8ected to be made, or has been made, in a suit or   roceeding instituted, or about to be instituted, in a court, any erson caiming a right to aear before the court on the hearing of such aication may odge a caveat in resect thereof. (&) 7here a caveat has been odged under sub3section (#), the erson by whom the caveat has been odged (hereinafter referred to as the caveator) sha serve a notice of the caveat by registered ost, ac!nowedgment due, on the erson by whom the aication has been, or is e8ected to be made, under sub3section (#). (*) 7here, after a caveat has been odged under sub3section (#), any aication is fied in any suit or roceeding, the court sha serve a notice of the aication on the caveator. (-) 7here a notice of any caveat has been served on the aicant, he sha forthwith furnish the caveator, at the caveator's e8ense, with a coy of the aication made by him and aso with coies of any aer or document which has been, or may be, fied by him in suort of the aication. (9) 7here a caveat has been odged under sub3section (#), such caveat sha not remain in force after the e8iry of ninety days from the date on which it was odged uness the aication referred to in sub3section (#) has been made  before the e8iry of the said eriod. Any arty affected by interim order can fie caveat. (:irma Chandra v. ;irindra  :arayan (#+42))
6 Takwani C..! Civil "r#cedure! $i%th &diti#n! &astern '##k c#(pan)! p - 723 6

%ection #-23A enacts that a caveat can be odged in a suit or roceeding. Construing the connotation in a narrow manner, some igh Courts have ta!en the view that no caveat can be fied in a first or second aea or in e8ecution  roceedings. =ut, as observed in Ra# C%a*d!a A''a!wal v) ,tate o& U) P) 6, the e8ression "Civi
O;ECT

The underying ob$ect of a caveat is twofod6 #. To safeguard the interest of a erson against an order that may be assed on an aication fied by a arty in a suit or roceeding instituted or  about to be instituted. %uch a erson odging a caveat may not be a necessary arty to such an aication, but he may be affected by an order  that may be assed on such aication. This section affords an oortunity to such arty of being heard before an e8 arte order is made> &. It see!s to avoid mutiicity of roceedings. In the absence of such a  rovision, a erson who is not a arty to such an aication and is adversey affected by the order has to ta!e aroriate ega roceedings to get rid of such order. %uch a rovision is found in the %ureme Court ?ues. The @aw Commission, therefore, recommended insertion of such a  rovision in the Code of Civi
7  166 $C 1888 8 Takwani C..! Civil "r#cedure! $i%th &diti#n! &astern '##k c#(pan)! p - 724 7

A caveat rotects the caveator/s interest. The caveator is aready ready to face the suit or roceedings which are e8ected to be instituted by his oonent. ence no e83arte order sha be assed against the caveator. The caveat avoids mutiicity of roceedings. Thus it saves the e8enses costs and conveniences of the Courts. 8ames6 A is owner of a house3site. e wants to construct a buiding e got the ermission from the Municiaity. A started construction. Meanwhie, = the neighbourer caimed some of the and of A and ob$ected the construction, on the rete8t of some bias, immediatey on the day of threatening itsef. A fied a caveat against = in the cometent civi court raying the Court to give him a notice before assing any interim order or reief in case if = fies any aication before the Court, so that he coud give the answer to the caim of =.
  In fact,

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caveat is a shied by using which
3ORM

 :o form is rescribed for the caveat. The caveator may fie a caveat in the form an aication or etition before the court submitting the cause of action giving the name and descrition of the oonent. The coy of the aication sha be sent to the oonent arty in advance by ?egistered ost Ac!nowedgement due, before fiing it in the court #. Bni!e the Indian %uccession Act, no form of caveat has been rescribed under  the Code. A caveat may, therefore, be fied in the form of a etition wherein the caveator has to secify the nature of the aication which is e8ected to be made or has been made and aso his right to aear before the court at the hearing of such aication. The %tam ?eorter or ?egistry of the court wi !ee a register wherein entries wi be made of the fiing of caveats.  d! pp  723 t# 724 10+r. Tripathi T.".! The c#de # civil pr#cedure! 2 nd &diti#n! 2008! llaha'ad aw a*enc)! p - 32

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W?O MA@ LODGE CAVEAT

%ub3section (#) of %ection #-23A rescribes uaifications for the erson who intends to odge a caveat. e must be a erson caiming a right to aear before the court on the hearing of the aication, which the aicant might move for  the grant of interim reief. The anguage of sub3section (#) of %ection #-23A is wide enough to incude not ony a necessary arty, but even a roer arty. ence, a caveat may be fied by any erson who is going to be affected by an interim order i!ey to be assed instituted on an aication which is e8ected to be made in a suit or roceeding instituted or about to be instituted in a court. ## Thus, a erson who is a stranger to the roceeding cannot odge a caveat. @i!ewise, a erson suorting the aication for interim reief made by the aicant aso cannot fie a caveat. ;eneray, a caveat can be fied after the $udgment is ronounced. In e8cetiona cases, however, a caveat may be fied even before the ronouncement of the  $udgment.#&

W?EN CAVEAT MA@ ;E LODGED

 :ormay, a caveat may be odged after the $udgment is ronounced or order is  assed. In e8cetiona cases, however, a caveat may be fied even before  ronouncement of $udgment or assing of order.#*

W?EN CAVEAT DOE, NOT LIE

The rovisions of %ection #-23A of the Code can be attracted ony in cases where the caveator is entited to be heard before any order is made on the aication aready fied or roosed to be fied. The section cannot be construed to mean and rovide that even in cases where the Code does not 11 http://www.lpi.nsw.*#v.au/a'#ut5lpi/as/land5title/whats5a5caveat 12 http://www.law)ersc#nve)ancin*.c#(.au/enc)cl#paedia/caveat/ 13 'id 

contemate notice, it can be caimed by odging a caveat. %uch a construction woud be inconsistent with the ob$ect underying %ection #-23A.

NOTICE

7hen a caveat is odged, the court wi serve a notice of an aication on the caveator. The section obiges the aicant who has been served with a caveat to furnish the caveator, at the caveator's e8ense, a coy of the aication aong with coies of aers and documents submitted by him in suort of his aication#-.

RIG?T, AND DUTIE, .4

%ub3sections (&), (*) and (-) of %ection #-23A rescribe the rights and duties of  the caveator who odges a caveat, of the aicant who in3tends to obtain an interim order and of the court. (a) f Caveato! Bnder sub3section (&) of %ection #-23A, once a arty is admitted to the status of  a caveator, he is cothed with certain rights and duties. It is his duty to serve a notice of the caveat odged by him by registered ost on the erson or ersons  by whom an aication against the caveator for an interim order has been or is e8ected to be made. The rovision is directory and not mandatory. 7here no notice coud be served on account of uncertainty of the erson i!ey to institute a suit, aea or other roceeding, the court may, at its discretion, disense with the service of notice of a caveat and ermit a arty to odge a caveat without naming the arty resondent#5. (b) f Ali(a*t 14 $arkars! C#((entar) #n The C#de # Civil "r#cedure 108! 4 th &diti#n! #lu(e 1! p - 1210 1 https://www.scri'd.c#(/d#c/23816073/Caveat 16 $ir 9ulla +..! The C#de # Civil "r#cedure! 2011! 18 th &diti#n! #lu(e 1! p 136 10

%ub3section (-) of %ection #-23A rovides that it is the duty of the aicant to furnish to the caveator forthwith at the caveator's e8ense a coy of the aication made by him aong with the coies of aers and documents on which he reies. This rovision thus ma!es it obigatory for the aicant to serve his aication aong with a coies and documents fied or intended to be fied in suort of his aications (c) f Cou!t nce a caveat had been odged, under sub3section (*), it is the duty of the court to issue a notice of that aication on the caveator. This duty has been cast on the court obviousy for the urose of enabing the caveator to aear and oose the granting of an interim reief in favour of the aicant. Athough the e8ression "notice of aication" has not been defined in the Code, it woud incude the date of hearing. It must, therefore, be ta!en that it is the duty of the court to give a sufficienty reasonabe and definite time to the caveator to aear  and to oose the aication fied by the aicant. This duty of the court is in addition to the duty of the aicant under sub3section (-) and non3comiance with it defeats the very ob$ect of introducing %ection #-23A and the breach thereof vitiates the order. Therefore, merey because the caveator refuses to accet the coy of the aication from the aicant, the court is not absoved from serving the notice of the aication to the caveator .#4

3AILURE TO ?EAR CAVEATOR: E33ECT

The intention of the egisature in enacting the rovision of caveat is to enabe the caveator to be heard before any orders are assed and no orders are assed  by the court e8 arte. It is, therefore, cear that once a caveat is fied, it is a condition recedent for assing an interim order to serve a notice of the aication on the caveator who is going to be affected by the interim order. Bness that condition recedent is satisfied, it is not ermissibe for the court to  ass an interim order affecting the caveator, as otherwise it wi defeat the very ob$ect of %ection #-23A.#2 17 Takwani C..! Civil "r#cedure! $i%th &diti#n! &astern '##k c#(pan)! p - 726 18 $arkars! C#((entar) #n The C#de # Civil "r#cedure 108! 4 th &diti#n! #lu(e 1! p - 1210 11

It aso cannot be contended that the caveator is reuired to be heard not at the time of assing an e8 arte order at the initia stage, but at the time of assing the fina order. This reasoning woud ma!e the rovisions of %ection #-23A nugatory and meaningess because, even in the absence of %ection #-23A,  before assing a fina order the other side is aways reuired to be heard. That is the reuirement of natura $ustice. Therefore, once a caveat is fied, it is the duty of the court to hear the caveator before assing any interim order against him. =ut an interim order assed without hearing the caveator is not without  $urisdiction and oerates uness set aside. TIME=LIMIT

A caveat odged under sub3section (#) wi remain in force for ninety days from the date of its fiing. #+ After the rescribed eriod of ninety days is over, caveat may be renewed.

LAND MARK UDGEMENT, ,iddali*'aa G)C) v) G)C) Vee!a*a /9, If a arty has a right to fie the caveat and order is assed without hearing him, then such an order assed becomes bad at aw and thus is unenforceabe. Re"e!ve ;a*k o& I*dia E#lo$ee" A""o(iatio* v) R;I /.

 without serving

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them a notice and without hearing them. The e8 arte interim order was hed to  be bad by the %ureme Court

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,t o& Ka!*ataka v) Nil E#lo$ee"B A""o) v) R;I .884 7hen there is uncertainty as to who is i!ey to fie a., court may aow caveat without naming aicant  serving notice. (#+2#) court must notify caveator when any order is assed but in case interim order is assed without notifying, then such order is not without $urisdiction 1 $ir 9ulla +..! The C#de # Civil "r#cedure! 2011! 18 th &diti#n! #lu(e 1! p 1368 20 181;2< , 323 21 166 $C ;1< 2 12

VACVATING AND WIT?DRAWL O3 CAVEAT

Dacating Caveat
,o#e I#o!ta*t Poi*t":

- Caveat can be fied ony to oose the aication and not to suort. -  :otice uon the caveator fiing the date of hearing of the aication is a -

must. It is a mandatory under the %ection #-23A %ection #-23A aies ony to tria courts, but not aeate courts In the e8ecution of the decree &#, rders && and *4 enact for the issue of  a notice to the $udgments debtor, under some given circumstances. This gives the meaning that in cases not covered by such rovisions, notice of  e8ecution is not necessary. Therefore, the $udgment debtor is not entited to a notice of an e8ecution of a decree at the initia stage by odging a caveat anticiating such an e8ecution.&*

In Re"e!ve ;a*k o& I*dia E#lo$ee" A""o(iatio* V" R;I  the aintiffs fied a caveat before the court. The court before e8iry of + days, issued an interim e8  arte order against the aintiffs without serving them a notice and without hearing them. The e8 arte interim order was hed to be bad by the %ureme Court. POINT, 3OR CON,IDERATION, /2

#. %ection #-2A, it does not give a right to the arty to fie a caveat in a the e8ecution cases.

22 $ir 9ulla +..! The C#de # Civil "r#cedure! 2011! 18 th &diti#n! #lu(e 1! p 136 23 ,ain 9.".! The C#de # Civil "r#cedure! 2007! 3 rd &diti#n! =adhwa and C#(pan)! p - 17 24 https://www.scri'd.c#(/d#c/2426321/Caveat 13

&. As er sub3section (*) of %ection #-23A of the code the Court is bound to serve a notice of the aication, on caveator, before assing an interim order  thereof. :o rocedure rovided as in sub section (&). *. As er sub section (&) notice sha be served but no stage is mention such as  rior to fiing the caveat or at the time of fiing in the code. -. If order has been assed without notice to the caveator it woud be ony unenforceabe. 9. Dacating Caveat
CONCLU,ION

 :o doubt the said arameters by interretative rocess can be stretched in order  to effectivey carry out the egisative intent but whie doing so, the essentia contents of the statutory rovisions and its very wor!abiity cannot be ut to a sta!e thereby nuifying the right of the aicant to the roceedings and virtuay creating an imossibiity for the Courts to comy with the egisative mandate contained under sub3section (*) of %ection #-23A of the Code.

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;I;LIOGRAP?@ #. C.F. Ta!wani, Civi
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