Sunday, March 06, 2011

CAVEAT

CAVEAT
By K P C RAO.,
LL.B., FCS.,FICWA.,
Practising Company Secretary
kpcrao.india@gmail.com
MEANING

 The word caveat has been derived from Latin which means “beware”. “A Caveat is an entry made in the books of the offices of a register or court to prevent a certain step being taken without previous notice to the person entering the caveat”.[1] In other words, a caveat is a caution or warning given by a party to the court not to take any action or grant any relief to the applicant without notice being given to the party lodging the caveat. It is very common in testamentary proceedings. It is a precautionary measure taken against the grant of probate or letters of administration, as the case may be, by the person lodging the caveat.  Section 148-A of the code of civil procedure  provides for lodging of a caveat.
 
RIGHT TO LODGE A CAVEAT (Sec 148-A)

(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 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 caveator's 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.

OBJECT 

The underlying object of a caveat is twofold:

(i)                to safeguard the interest of a person against an order that may be passed on an application filed by a party in a suit or proceeding instituted or about to be instituted.  Such a person lodging a caveat may not be a necessary party to such an application, but he may be affected by an order that may be passed on such application. Thus Section 148-A affords an opportunity to such party of being heard before an ex parte order is made; and

(ii)             to avoid multiplicity of proceedings.

In the absence of such a provision, a person who is not a party to such an application and is adversely affected by the order has to take appropriate legal proceedings to get rid of such order.  Such a provision is found in the Supreme Court Rules.  The Law Commission, therefore, recommended insertion of such a provision in the Code of Civil Procedure also.  Accordingly, Section 148-A has been inserted by the Amendment Act of 1976.  
 
NATURE AND SCOPE 

A caveat can be lodged in a suit or proceeding. In Ramachandra v State of UP[2], the expression “Civil Proceedings” in Section 141 of the Code includes all proceedings which are not original proceedings.

WHO MAY FILE
A caveat may be filed by any person who is going to be affected by an interim order likely to be passed on an application which is expected to be made in a suit or proceeding instituted or about to be instituted in a court[3]. Generally, a caveat can be filed after the judgment is pronounced.  In exceptional cases, however, a caveat may be filed even before the pronouncement of the judgment.[4] 

FORM 

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

RIGHT OF THE CAVEATOR

A caveat protects the interests of caveator.  The court must give a notice to the caveator or to his advocates. If the opponent  party files proceedings/application for the interim order, the court shall not give any ex parte interim order to the opponent party without hearing the caveator.

FAILURE TO HEAR CAVEATOR

The intention of the legislature in enacting the provision of caveat is to enable the caveator to be heard before any orders are passed and no orders are passed by the court ex parte.  It is, therefore, clear that once a caveat is filed, it is a condition precedent for passing an interim order to serve a notice of the application on the caveator who is going to be affected by the interim order.  Unless that condition precedent is satisfied, it is not permissible for the court to pass an interim order affecting the caveator, as otherwise it will defeat the very object of Section 148-A.[5]  

VALIDITY

The caveat will remain in force for 90 days from the date of filing and can be extended for a similar period by making an application / a petition referred to in sub-section (1) of sec 148-A before the expiry of 90 days.  
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    [Published in Corporate Secretary of ICSI, August, 2010]


[1]  The Dictionary of English Law
[2]  AIR 1996 SC 1888:1966 Supp SCR 393
[3]  Nirmal Chandra v Girindra Narayan, AIR 1978 Cal 492(494): 82 Cal WN 1026
[4]  Pashupatinath v Registrar, Coop socities, AIR 1986 Cal 74
[5]  Siddalingappa v. veeranna AIR 1981 Kant 242 (243); Seethaiah v. Govt. of AP., AIR 1983 AP 443

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