CAVEAT PETITION

(Assignment work towards Completion of 1st Cumulative Assignment)

SUBMITTED TO SUBMITTED BY-

Deepankar Sharma, Kanchan Lata Verma

Faculty of Law Roll no. 1443 (B)
3rd semester

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY SEPTEMBER 2017)
 INTRODUCTION

The word caveat has been derived from a Latin language which means Let the person beware
originated in the mid 16th century. The dictionary of English law1 defines it as a caveat is an
entry made in the office of registry or court to prevent certain steps being taken without previous
notice to the person entering the caveat. In other words, a caveat is a precautionary measure or
simply a notice or warning against the grant of probate or letters of administration that certain
action may not be taken against the person without giving notice to the person lodging the
caveat2.

The term caveat has not been defined in the Civil Procedure Code of 1908(hereinafter, the
Code).However, in the case of Nirmal Chand v. Girindra Narayan3, the Court had defined the
word Caveat, wherein it said, 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.

Furthermore, though word not defined in Code, there is a salutary provision, i.e., Section 148-A
in Code, which was inserted by the CPC (Amendment) Act 104 of 1976 by the recommendations
of the Law Commission of India's 54th Report, which allows a person to lodge a caveat in a suit
or proceeding instituted against him. It reads as under;-

(1) Where an application is expected to be made, or has been made, in a suit or proceedings
instituted, or about to be instituted, in a Court, any person claiming a right to appear before
the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has
been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by

1
Earl Jowitt, The Dictionary of English Law, (1977) Vol. 1 at p. 298;
2
Section 28, Indian Succession Act, 1925. See Infra at 3.
3
Nirmal Chand v. Girindra Narayn, AIR 1978 Cal 492at p. 494;82 CWN 1026.
 registered post, acknowledgement due, on the person by whom the application has been or is
expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any
suit or proceeding, the Court, shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the
caveator at the caveators expense, with a copy of the application made by him and also with
copies of any paper or document which has been, or may be, filed by him in support of the
application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force
after the expiry of ninety days from the date on which it was lodged unless the application
referred to in sub-section (1) has been made before the expiry of the said period.

Basically, there are 5 ingredients to the section, which are discussed in brief below :-

a) Who may lodge a Caveat?

Any person claiming a right to appear before the Court,
-Where an application is expected to be made
-Where an application has already been made
-In a suit or proceeding instituted
-In a suit or proceeding which is about to be instituted may lodge a caveat thereof. It is
substantive in a nature.
b) Duties of the Caveator
This clause is directive in nature. The person by whom the Caveat has been lodged is called a
Caveator. He shall,
-Serve a notice of the Caveat by registered post, acknowledgement due
-On the person by whom the application has been made
-On the person by whom the application is expected to be made.
c) Duty of the Court
After a Caveat has been lodged under Clause 1, if any application is filed in any suit or
proceeding, the Court shall serve a notice of the application on the Caveator. This clause is
mandatory in nature.
d) Duties of the Applicant
It is directive in nature and says that, where a notice of any Caveat has been served on the
applicant, he shall furnish, at the expense of the Caveator,
-A copy of the application made by him.
-Copies of any paper or document which has been filed by him in support of his application.
-Copies of any paper or document which may be filed by him in support of his application.
e) Life of a Caveat Petition
The life of the petition is 90 days, from the date on which it was lodged. The only exception
is, if the application already exists, or has been made before the said period, the clause ceases
to exist.
All the above five ingredients are vital to a Caveat petition all the above are to be followed
austerely.

OBJECT AND SCOPE

Basically, Caveat has two objectives, firstly - to safeguard the interest of a caveator against the
order that may be passed on the application in a suit or proceeding instituted by the opponent,
affording an opportunity to be heard, before an ex parte order is made. Secondly, it seeks to
avoid the multiplicity of proceeding, so as to save the cost and convenience of the court. In
absence of such provision, a person who is not a party to application or suit but is likely to be
adversely affected by the order has to take appropriate separate legal proceedings to get rid of
such order4. Such a provision is also found in the Supreme Court Rules.5

The Scope of the section was laid down in various cases. In the case of Nirmal Chand the Court
had said that any party affected by an interim order can file a Caveat petition. Also, in the case
of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma6, the court opined that a
person who is a total stranger to a proceeding cannot lodge a caveat.

4
5
Supreme Court Rule, 1966, Or.19 R. 2.
6
Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma AIR 1991 Ker 411 AIR 1991 Ker 411
Furthermore, since Section 148-A enacts that a caveat can be lodged in a suit or proceeding,
some High Courts have construed this connotation in a narrow manner, and adopted the view
that no caveat can be filed in a first or second appeal or in execution proceedings. But, it was
observed in Ram Chandra Aggarwal v. State of U.P.7that the expression Civil Proceeding in
Section 141 of the code includes all proceeding which are not original proceeding. Thus, the
provision relating to caveat would be applicable to suit, appeals as well as other proceeding
under the Code or other enactments.

Provision is also there that no order should be passed against unless the caveator is heard, but if
the caveator is not present at time of hearing of the application and the court finds that there is
prima facie case in favor of the applicant, Court can grant the ad interim relief in the faour of
applicant. To be noted that, in above mentioned situation Interim order passed without giving
notice to the caveator is not without the jurisdiction and is operative till it is set aside in
appropriate proceedings.

CERTAIN OTHER PROVISIONS

A) When Caveat May Be Lodged?

Normally, a caveat may be lodged after the judgment is pronounced or order is passes, but in
exceptional cases, however, a caveat may be filed even before pronouncement or passing of an
order8.

B) Form And Notice

Since, no form of caveat has been prescribed by the code, a caveat, therefore, be filed in the form
of a petition wherein caveat has to specify the nature of the application. When caveat lodged, the
court serves a notice of an application on the caveator. It is the duty of the applicant to submit the
copy of an application along with the copies of papers and documents in support of his

7
Ram Chandra Aggarwal v. State of U.P AIR 1966 SC 1888, 1966, OR. 19 R. 2.
8
Pashupati Nath v. Registrar, Coop. Societies, AIR 1983 Raj 191: 1982 RLR 694: 1982 RLW 572,
application9. Furthermore, a caveat lodged under sub-section (1) will remain in force for Ninety
day from the date of its filing.

C) When Caveat Does Not Lie?

Provisions of Section 148-A can be only applicable to the cases where the caveat is entitled to be
heard before any order is made on application filed and hence, the hearing cannot be claimed in
cases where Courts does not contemplate notice by lodging a caveat. If such construction
happened, that would be inconsistent with the object of Section 148-A.10

D) Effect Of Failure To Hear Caveator

The enactment of provision of caveat is to hear the caveator before any orders are passed and no
order are passed by the Court ex parte. It is therefore necessary for court to serve a notice of
application on the caveator before passing an interim order. Unless notice is served, Court cannot
pass an interim order affecting the caveator, as otherwise it will defeat the very object of Section
148-A.

9
NovaGranites (India) Ltd. Craft (Banglore) (P) Ltd., 1994 1 Civ LJ 711, Akbar Ali v. Alla Pitchai, 2000 AIHC 115
(MAD).
10
Cloride India Ltd. v.Ganesh Das, AIR 1978 Cal 74. Nav Digvijay Coop. Housing SocietyLtd. Vs. Sadhna
Builders, AIR 1984 Bom 114.