Code of Civil Procedure, 1908 (CPC)
Section 148A CPC: Caveat
A party who fears that his opponent is about to obtain an ex parte injunction or stay has, without more, no way of being heard before it is granted. Section 148A of the Code of Civil Procedure, 1908, inserted by the Amendment Act of 1976, gives him one: he lodges a caveat, and the court must then serve notice on him before it makes any order on the application he expects. A caveat stops nothing; it simply prevents the matter being decided behind his back. These notes cover who may lodge one, the three duties it creates, its ninety-day life, and the consequence of ignoring it.
The caveator, the court and the applicant, and the duty each owes
1. Meaning and Object
§ What a caveat is A caveat is a notice given to a court by a person who expects an application to be made against him, asking that nothing be done on that application without notice to him. The word means let him beware. In the Code it is addressed to the court, and its effect is procedural: the court is put on notice that there is someone who claims a right to be heard. The object is to prevent ex parte orders obtained by surprise. An interim injunction or a stay granted without notice can alter the position before the affected party knows an application exists, and Section 148A gives him a way of ensuring he is heard first. The object is not protection from the order itself. The caveator gets a hearing, not immunity; the court may still grant the relief after hearing him. |
2. Who May Lodge a Caveat, and When
§ Section 148A(1), CPC 1908 Where an application is expected to be made, or has been made, in a suit or proceeding 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. |
§ Three points on the entitlement • Any person claiming a right to appear. He need not already be a party. What he must have is a right to appear on the hearing of the expected application, which in practice means an interest that the order would affect. • The application may be expected, or already made. A caveat may be lodged in anticipation, and also after the application has been filed but before it is heard. • The proceeding may not yet exist. The words instituted, or about to be instituted allow a caveat before the suit itself is filed, which is the common case: a person who anticipates an injunction application files a caveat in the courts where it is likely to be brought. |
3. The Three Duties
Whose duty | Sub-section | What it requires |
|---|---|---|
The caveator | 148A(2) | Where a caveat has been lodged, the person by whom it has been lodged shall SERVE A NOTICE OF THE CAVEAT BY REGISTERED POST, acknowledgment due, on the person by whom the application has been or is expected to be made |
The court | 148A(3) | After a caveat has been lodged, if any application is filed in any suit or proceeding, the Court SHALL SERVE A NOTICE OF THE APPLICATION ON THE CAVEATOR |
The applicant | 148A(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 |
§ How the three fit together The scheme works only if all three steps happen, and each is triggered by the one before it. The caveator must tell the applicant. If he lodges a caveat in court but never serves notice on the expected applicant, the applicant has no way of knowing, and the duty in sub-section (4) never arises. The court must tell the caveator. Sub-section (3) is the operative safeguard, and it is mandatory: the Court shall serve a notice of the application on the caveator. The applicant must supply the papers. Notice alone is of little use if the caveator does not know what is being sought; sub-section (4) requires the application and the supporting documents to be furnished, at the caveator's expense. |
4. The Ninety-Day Life: Section 148A(5)
§ Section 148A(5), CPC 1908 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. |
i. Ninety days from lodging, not from the filing of the suit or the application.
ii. Unless the application is made within that period. Where the expected application is filed before the ninety days expire, the caveat has served its purpose and the machinery of sub-sections (3) and (4) operates.
iii. A fresh caveat may be lodged where the expectation continues beyond ninety days, and in practice caveats are renewed.
iv. Why a time limit at all. A caveat imposes a duty on the court's registry in every matter that may be filed. An indefinite caveat would burden the system without corresponding benefit, and the expectation that justifies it fades with time.
5. Consequence of Non-Service by the Court
§ What happens if an order is made without notice to a caveator The position is worth stating carefully, because the section does not spell it out: • The requirement in sub-section (3) is mandatory. The word is shall, and the whole object of the section is defeated if the court proceeds without notice. • But the order is not a nullity. Non-service is an irregularity, not a want of jurisdiction. The court had power to make the order; it failed to follow a procedural safeguard. • The practical remedy is an application to the same court to vacate or reconsider the order, on the ground that the caveat was on record and the caveator was not heard. Courts ordinarily recall or rehear in such a case, because the safeguard exists precisely to prevent that situation. • Where an appeal lies from the order, the non-service may be taken as a ground, and where none lies, the objection may be raised under Section 105 in the appeal against the decree, or by way of revision or under Article 227 in a proper case. |
6. Caveat, Stay and Injunction Compared
Basis | Caveat, s. 148A | Stay | Injunction, O. XXXIX |
|---|---|---|---|
What it does | Secures a right to be heard before an order is made | Suspends a proceeding | Restrains a party from doing an act, or requires him to do one |
Against whom | Nobody; it is addressed to the court | The proceeding | A party, enforced against him personally |
Does it stop anything? | No. Nothing is prevented, suspended or restrained | Yes, the proceeding stops | Yes, the act is restrained |
Who initiates | A person expecting an application against him | A party to the proceeding | A party to the suit |
When | Before or after the application is made, but before it is heard | In a pending proceeding | At any stage of the suit |
Duration | Ninety days from lodging, unless the application is made earlier | As the order provides | Until the disposal of the suit or further orders |
If ignored | The order made without notice is an irregularity, and may be recalled or reconsidered | A proceeding conducted in the face of a stay is a nullity to that extent | Disobedience is met under Order XXXIX Rule 2A with attachment and detention |
7. Landmark Points
- Section 148A(1). Any person claiming a right to appear on the hearing of an expected or filed application may lodge a caveat, even before the suit is instituted.
- Section 148A(2). The caveator must serve notice of the caveat by registered post, acknowledgment due, on the person by whom the application is expected.
- Section 148A(3). The court shall serve notice of the application on the caveator, which is the operative safeguard.
- Section 148A(4). The applicant, once served with notice of the caveat, must forthwith furnish the caveator, at the caveator's expense, with the application and the supporting papers.
- Section 148A(5). A caveat lapses after ninety days from lodging, unless the expected application is made within that period.
- A caveat is not a stay or an injunction. It prevents surprise, not relief, and the court may grant the order after hearing the caveator.
8. Frequently Asked Questions
What is a caveat under Section 148A?
A notice lodged in court by a person who expects an application to be made against him, so that the court will not make an order on that application without serving notice on him. It is preventive of surprise, not of relief.
Who may lodge a caveat?
Any person claiming a right to appear before the court on the hearing of an application that has been made or is expected, in a suit or proceeding that has been instituted or is about to be instituted. He need not already be a party.
Can a caveat be lodged before the suit is filed?
Yes. Section 148A(1) covers a proceeding about to be instituted, which is the common case: a person anticipating an injunction application lodges caveats in the courts where it is likely to be brought.
What must the caveator do after lodging a caveat?
Under sub-section (2) he must serve a notice of the caveat, by registered post with acknowledgment due, on the person by whom the application has been made or is expected to be made. Without that notice, the applicant's duty under sub-section (4) never arises.
What must the applicant do?
Where a notice of the caveat has been served on him, sub-section (4) requires him forthwith to furnish the caveator, at the caveator's expense, with a copy of the application and copies of any papers or documents filed or to be filed in support of it.
How long does a caveat last?
Ninety days from the date on which it was lodged, unless the application it relates to is made before that period expires. After ninety days it lapses, and a fresh caveat must be lodged if the expectation continues.
What happens if the court makes an order without notice to the caveator?
The order is not a nullity, since the court had jurisdiction, but the failure is a breach of a mandatory safeguard. The caveator ordinarily applies to the same court to have the order vacated or reconsidered, and courts generally recall or rehear in such a case.
Is a caveat the same as a stay or an injunction?
No. A caveat stops nothing. It gives the caveator only the right to be heard before an order is made. A stay suspends a proceeding and an injunction restrains a party, and both operate on the matter itself.
9. Related Topics in This CPC Series
- Order XXXIX: Temporary Injunctions and Interlocutory Orders
- Section 151: Inherent Powers of the Court
- First Appeals: Sections 96 to 99A and Order XLI
- Issue and Service of Summons: Sections 27 to 29 and Order V