Pheru Singh v. Nayadar — 1987 DIGILAW 286 (ALL)

JUDGMENT Dr. R. R. Misra, J. 1. Pheru Singh, the defendant-appellant, has filed the present second appeal in which a caveat has been filed on behalf of the plaintiff-respondent. At the time of the admission-hearing of the appeal, a preliminary objection was raised by the learned counsel for the appellant regarding maintainability of the caveat application. Accordingly learned counsel for the parties have been heard. 2. The first objection taken by the learned counsel for the appellant is that no caveat lies in second appeals and the caveator has got no right of hearing at the admission stage as the provisions of Section 148-A of the Code of Civil Procedure are not applicable in such a case. This objection has been stoutly refuted to by the learned counsel for the caveator. Sri Tarun Agrawal, Advocate, who appears as counsel for the caveator, submits that the aforesaid objection raised by the appellant has got no force. In support of his submission, he relies on the provisions of Section 148-A of the Code of Civil Procedure. The said section reads as follows :- "148-A. Right to lodge a caveat- (1) 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. (emphasis supplied). (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 subsection (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. (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. A scrutiny of the aforesaid provisions reveals that sub-section (1) of section 148-A of the Code of Civil Procedure sets out the conditions under which a caveat may be lodged by any person. The right to lodge the caveat belongs not only to a party to the suit or proceeding but to " any person " who claims a right to appear before the Court at the time of the hearing of the application in a suit or proceeding instituted or about to be instituted in a Court. As regards the conditions, such caveat is to be lodged in respect of application " in a suit or proceeding " and by a party who has a right to appear (emphasis supplied) before the Court on the hearing of such application. Under sub-section (2) of the aforesaid section of the Code, if such a caveat has been lodged, such caveator has to serve a notice of the caveat on the person making the application under sub-section (1) of the said section. Under sub-section (3) when an application is filed in any suit or proceeding, it is obligatory on the Court to serve a notice of the application on the caveator. After service, the caveator is to be furnished with a copy of the application (accompanied by copies of the documents filed in support of the application) made by the party concerned at the expense of the caveator. 3. The term "caveat" is a word which conveys the idea of a caution notice given to the Court not to issue any grant or take any step without notice being given to the party lodging the caveat. It is in the nature of a precautionary measure, therefore, taken against the grant of an order by the Court effecting the rights of a party. This system of lodging a caveat has its origin in the matters of grant of probate or letters of administration wherein this precautionary measure was necessary affecting the rights of the person interested in the estate of the deceased. This system of lodging a caveat has its origin in the matters of grant of probate or letters of administration wherein this precautionary measure was necessary affecting the rights of the person interested in the estate of the deceased. Such a provision for lodging a caveat in testamentary proceeding is contained in Section 284 of the Indian Succession Act as well as under Rule 35 of Chapter XXX of the Rules of Court, 1952 which are made by the High Court of Judicature at Allahabad in exercise of the powers conferred by Article 225 of the Constitution of India and all other powers enabling it in that behalf. 4. In the case of Nirmal Chandra Dutta v. Girindra Narayan Roy, AIR 1978 Cal. 492 a Division Bench of that Court has also summarised the object of introduction of the provision for lodging a caveat. According to the said authority the object seems to be to safeguard the interest of a person against an order that may be passed on an application filed or expected to be filed by a party in a suit or proceeding instituted, or about to be instituted. The other object, as stated in the aforesaid decision, is to avoid multiplicity of proceedings. This is so because 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 and in that event he has to take resort to legal proceedings for the purpose of getting rid of that order. Sri Tarun Agrawal, Advocate appearing for the caveator, has in the course of his arguments heavily relied upon the decision in the case of C. Seethaiah v. Government of Andhra Pradesh, AIR 1983 A. P. 443 in support of his submission that having regard to the intention embodied in the provisions of Section 148-A of the Code of Civil Procedure, the caveator respondent has got a tight to be heard before any orders are passed and no orders are to be passed by the Court ex-parte. The point that arose for consideration in the case of C. Seethaiah (Supra) was that the caveator was not supplied with copies of the application and documents filed by the petitioner. The point that arose for consideration in the case of C. Seethaiah (Supra) was that the caveator was not supplied with copies of the application and documents filed by the petitioner. The Court held that when a caveat is lodged it becomes not only the duty of the Court but also of the applicant and his counsel to bring to the notice of the Court that caveat has been lodged and that the matter may not be heard ex-parte. Such an obligation is implied having regard to the provisions contained in sub-section (3) and (4) thereof and also the overall intendment of the provision. This decision of the Andhra Pradesh High Court in turn takes note of the three other decisions reported in Reserve Bank of India Employees Association v. Reserve Bank of India, AIR 1981 A. P. 246, G. C. Siddalingappa v. G. C. Veeranna, AIR 1981 Karnataka 242 and Nirmal Chandra Dutta v. Girindra Narayan Rao, AIR 1978 Cal. 492 . I, therefore, find that this decision of the Andhra Pradesh High Court as well as the aforesaid other three decisions do not deal with the controversy raised before me and, therefore, the said authority is not relevant to decide the controversy involved before me in the present case. 5. As regards the scope of Section 148-A of the Code of Civil Procedure in the case of M/s. Nav Digvijai Cooperative Housing Society Ltd. v. M/s. Sadhana Builders, AIR 1984 Bombay 114 it has been held that the provisions of Section 148-A are attracted in cases of such proceedings where the caveator is entitled as of right to be heard in those proceedings. Accordingly applications for execution under Order XXI, Rule 43 or Rule 54 of the Code of Civil Procedure were held to be not " proceedings " where judgment-debtor has a right to be heard. Hence ultimately it was held that the defendants -caveators were not entitled to file caveat in such an application for execution of a decree passed against them. The reasoning given by the Bombay High Court in the said case is that since the judgment-debtor is not a party, who has a right to be heard or is ordinarily heard in applications under Order XXI Rule 43 or Rule 54, the provisions of Section 148-A are not attracted to such execution applications. 6. The reasoning given by the Bombay High Court in the said case is that since the judgment-debtor is not a party, who has a right to be heard or is ordinarily heard in applications under Order XXI Rule 43 or Rule 54, the provisions of Section 148-A are not attracted to such execution applications. 6. On the basis of the ratio of the aforesaid case as well as having regard to the express provisions contained under sub-section (1) of the aforesaid section of the Code of Civil Procedure laying thereunder that a person claming a right to appear before the Court at the hearing may lodge a caveat, it has to be examined as to whether the plaintiff-respondent in the present case has got a right to appear in second appeal before the High Court at the admission stage. Under Sections 96 and 100 of the Code of Civil Procedure, the right to prefer an appeal has been conferred on a person against whom a decree has been passed either by any Court exercising original jurisdiction or from any decree passed in an appeal by any Court subordinate to the High Court. Sections 96 and 100 of the Code, therefore, do not confer any right on a respondent in an appeal. Order 41 of the Code sets out the form of appeal, the contents of the memorandum of appeal and the documents which are to be filed along with the appeal. From a perusal of the provisions of Rule 5 of Order 41 also, it is clear that these provisions do not give any right to the respondent for appearance and if the same is not there, the question of hearing the respondent at admission stage does not arise. Further, the relevant provisions of Rule 11 of Order 41 of the Code are as under :- "11. Power to dismiss appeal without sending notice to Lower Court- (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal, without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief the grounds for doing so, and a decree shall be drawn up in accordance with the judgment. " In this provision also one finds that if the Appellate Court is not satisfied, it may dismiss the appeal without serving a notice on the respondent. 7. As regards stay, sub-clause (4) of Rule 5 of Order 41 of the Code empowers the Court to pass ex-parte order for stay of execution pending the hearing of the application. Under sub-clause (1) of Rule 12 of Order 41 of the Code, it has been expressly stated that unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing of the appeal. Such day of the hearing of the appeal is to be fixed having regard to the current business of the Court, the place of residence of the respondent and the time necessary for the service of notice of the appeal so as to allow the respondent sufficient time to appear and answer the appeal on the day of hearing. 8. From a perusal of the aforesaid provisions, it is, therefore, crystal clear that the appearance of the respondent before the first Appellate Court is contemplated only after the appeal has not been dismissed ex-parte under rule 11 of Order 41 of the Code or ex-parte order of stay has been granted. The respondent to a first appeal gets a right of appearance and make his submission before the Court only on the day fixed for the hearing of the appeal itself. Further under sub-clause (1) of rule 22 of Order 41 of the Code, it has been laid down that the respondent may object to the decree as if he had preferred a separate appeal within one month from the date of the service of the notice of the date fixed for hearing of the appeal. 9. Further under sub-clause (1) of rule 22 of Order 41 of the Code, it has been laid down that the respondent may object to the decree as if he had preferred a separate appeal within one month from the date of the service of the notice of the date fixed for hearing of the appeal. 9. Now coming to the provisions of Order 42 of the Code, we find that hereunder the rules of Order 41 have been made applicable or in other words the respondent has got a right of appearance only after the appeal has been admitted and a date of hearing is fixed in the appeal and not earlier. 10. Reliance has also been placed on the provisions of sub-section (2) of Section 107 of the Code as well as provisions of Section 141 of the Code by Sri Tarun Agrawal in support of his submission. I, however, find that under Section 107 (2) it is the powers of the Court that have been stated. In the present case, we are not concerned with the question of powers of the Appellate Court. On the other hand, the controversy is confined as to whether the respondent has got a right of hearing at the admission stage of the appeal itself as claimed by the respondent. So far as Section 141 is concerned, it provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Moreover, as already stated above even the procedure provided for under Orders 41 and 42 of the Code gives a right of hearing to the respondent on the date fixed for hearing of the appeal on merits and not earlier. Thus neither the powers of the Appellate Court nor the procedure to be followed before the Appellate Court has got anything to do with the right of the respondent for appearance and being heard at the admission stage. Therefore, in my opinion, no assistance can be derived by the counsel for the caveator from the provisions of Section 107 as well as Section 141 of the Code. The right of a party to be heard is something quite distinct from the power of the Court to hear the respondent in the discretion of the Court. Therefore, in my opinion, no assistance can be derived by the counsel for the caveator from the provisions of Section 107 as well as Section 141 of the Code. The right of a party to be heard is something quite distinct from the power of the Court to hear the respondent in the discretion of the Court. The said discretion of the Court cannot be equated with the right of the respondent for being heard. 11. There is yet another aspect of the matter. Rules of Court 1952 as they are cited, apply to all proceedings and matters in the Allahabad High Court. Rule 35 of Chapter 30 of the Rules of Court provides for caveats only in matters of issue of grant of probate or letters of administration. Had this Court intended the right of the respondent to file a caveat in second appeals or revision also, express provision in that regard for caveats ought to have been made. Absence of such a provision for filing caveats in the second appeals in the Rules of Court also lends support to the view that the respondent does not have any right to file a caveat in second appeal. 12. The learned counsel for the caveator-respondent has alternatively also submitted that even if his client be held to have no right to file a caveat, he may, in the exercise of discretion by the Court, be heard in the interim matter. This submission has got nothing to do with the preliminary objection which forms the subject matter of decision in the present case. Suffice it to say that even such a "discretion of the Court" depends upon a number of factors involved in a case including the findings recorded by the courts below and the interest of justice that may be warranted from the facts of a particular case. Having regard to the totality of facts and circumstances of each case, the Court may or may not exercise its discretion to hear the respondent at the admission stage. Any way, this type of request made by the respondent, in my opinion, is out of place when we consider the provisions of Section 148-A of the Code of Civil Procedure. Having regard to the totality of facts and circumstances of each case, the Court may or may not exercise its discretion to hear the respondent at the admission stage. Any way, this type of request made by the respondent, in my opinion, is out of place when we consider the provisions of Section 148-A of the Code of Civil Procedure. Further, in my judgment the provisions of Section 148-A of the Code of Civil Procedure are designed to provide an opportunity to a caveator to oppose applications only at the stage of original proceedings or trial. This is so because after the caveator puts in appearance and the matter has been heard by the aforesaid original court, a judicial determination on the contention raised and supported by evidence is there and it cannot be said that again and again at the subsequent appellate stages the caveator will have, at the admission stage, a right to oppose the interim matter filed by the appellant. It may be that an appeal is a continuation of suit itself but right of the caveator to appear as of right in appeals at the admission stage and to oppose the same is neither warranted by the spirit and object underlying the enactment of Section 148-A of the Code of Civil Procedure nor by the scheme and structure discernible from the provisions of the Code as has been analysed above. Thus to my mind the above discussion leads me to conclude that the words " suit or proceedings " used under Section 148-A of the Code of Civil Procedure are confined only to the suit or proceedings in the trial court and the said words cannot be taken to include either a first appeal or a second appeal or any proceeding by way of appeal or revision taken before the Appellate Court or High Court in revision. 13. No other point was pressed before me by the learned counsel for the parties. 14. In the result, the preliminary objection of the appellant succeeds and is allowed. It is held that the respondent in a second appeal has got no right to file a caveat and of hearing either in the matter of admission of appeal of for opposing the interim matter as well. It is further held that the provisions of Section 148-A of the Code of Civil Procedure are inapplicable in such a situation. It is held that the respondent in a second appeal has got no right to file a caveat and of hearing either in the matter of admission of appeal of for opposing the interim matter as well. It is further held that the provisions of Section 148-A of the Code of Civil Procedure are inapplicable in such a situation. Parties to bear their own costs.