Caveat

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  • Topic: Civil procedure, Court, Law
  • Pages : 13 (4828 words )
  • Download(s) : 177
  • Published : October 2, 2011
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Introduction
‘…no proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a reasonable opportunity of answering the case against him..’ - de Smith[1]

According the Salmond, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions- jus quod ad actions pertinet- using the term action in a wide sense to include all legal proceedings, civil and criminal. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. Substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.[2] Procedure is the hand-maiden of justice and is not supposed to be it’s mitress.[3] Therefore the attempt of procedure is to the facilitation of an encompassing justice. Various devices have been invented in this endeavor. One of these , is the ‘right to caveat’. Sometimes a party obtains an exparte order on an application without informing the other party of his intention of making such an application.[4] Therefore, Mulla describes the provision incorporating ‘caveat’ as salutary [5] as it attempts to prevent this practice.

Caveat: What is?
The word “Caveat” has not been defined by the Civil Procedure Code. In fact it has been introduced into it only recently. Therefore to understand it we must take it’s usual meaning.[6] ‘Caveat’ literally means “let him beware”.[7]

It can be understood to mean “a formal notice or warning given by a party to a court or court officer requesting a suspension of proceedings” as per Blacks’Law Dictionary[8]. However, this is not the understanding of caveat India According to the Jowitt’s Legal dictionary meaning[9],

“a caveat is an entry made in the books of the offices of a registry or court to prevent a certain step being taken without previous notice to the person entering the caveat“. Wharton’s Law Lexicon which is a dictionary combined with a small commentary on each word has the following interesting entry describing the office of caveat : “In Scotland any one who expects certain proceedings to be taken by another, may lodge with the Clerk of the Court a “Caveat”. He is then entitled to be informed by the Clerk if and when the proceedings are taken.“ The person entering the caveat is called the caveator.[10] 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.[11] In a nutshell, a caveat is a caution or warning giving notice to the Court not to issue any grant or take any step without notice being given to the party lodging the caveat.[12] Section 148-A of the Code of Civil Procedure provides for lodging of a caveat.

Caveat: Object and Reasons for Enactment
Legislative Provisions enacting ‘Caveat’
Law Commission Recommendations
In the opinion of the Law Commission there needed to be a provision for ‘caveat’ as provided for in the Supreme Court Rules.[13] The Law Commission in its 54th Report observed that : “In order that a party who wishes to indicate his intention to have notice of an intended application by an adverse party may be authorised to do so, a provision for caveat may be, in our view, useful. The relevant provision in the Supreme Court Rules (Order XIX, Rule 2) is intended for cases where no appeal is pending, but a similar provision, modified so as to be applicable to cases where a suit is pending as well as to those where a suit is about to be instituted would be helpful.”[14] Statement of Objects and Reasons (Bill to amend CPC), 1974[15] Based on the recommendations of the Law Commission a right to caveat was sought to be added to the Civil Procedure Code. Clause 53...
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