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Nirmal Chandra Dutta Vs. Girindra Narayan Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 233 of 1978
Judge
Reported inAIR1978Cal492,82CWN1026
ActsCode of Civil Procedure (CPC) , 1908 - Section 148A; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantNirmal Chandra Dutta
RespondentGirindra Narayan Roy and ors.
Appellant AdvocateBankim Dutta and ;Partha Dutt, Advs.
Respondent AdvocateArun Prakash Chatterjee and ;Raghu Nath Ray, Advs.
Excerpt:
- .....judge for the execution of the writ of delivery of possession. on nov. 14, 1977, the judgment-debtors filed an affidavit and a petition praying for stay of the execution case. on that very day, the opposite party no. 3, the state of west bengal filed a caveat in the form of an application under section 148-a of the c. p. c. as inserted therein by the said amendment act, inter alia alleging therein that on june 6, 1977 the first land acquisition collector, calcutta had requisitioned the disputed premises under section 3 of the act v of 1947 after the publication and service of notices upon all the parties concerned on that date, and that on the day following, that is, on june 7, 1977, possession of the disputed premises was delivered by the judgment-debtors to the said land.....
Judgment:

M.M. Dutt, J.

1. This Rule is at the instance of the decree-holder in an execution proceeding and it is directed against order No. 64 dated January 3, 1978 passed by the learned Subordinate Judge, Second Court, Alipore. The only question that is involved in this Rule is whether the opposite party No, 3, the State of West Bengal was entitled to lodge a caveat under Section 148-A as introduced in the Civil P. C. by Section 50 of the Civil P. C. (Amendment) Act, 1976.

2. On May 31, 1975, the petitioner obtained a decree for ejectment and mesne profits against the judgment-debtors opposite parties in respect of the first floor and the top floor of premises No. 100, Dilkusha Street, Karaya, Calcutta, in Title Suit No. 87 of 1973 of the Second Court of the Subordinate Judge, Alipore. On September 1, 1975, the petitioner put the said decree in execution in Title Execution Case No. 23 of 1975 when the Bailiff of the court accompanied by the petitioner went to deliver possession of the disputed premises, the judgment-debtors offered resistance and accordingly, the Bailiff could not execute the writ of delivery of possession and returned the same to the court together with his report about the resistance offered by the judgment-debtors. The petitioner filed an application under Order 21, Rule 97 of the C.P.C. complaining of the resistance to delivery of possession by the judgment-debtors and their men and prayer for granting police help to the Bailiff for the execution of the writ of delivery of possession. The said application was registered as Misc. Case No. 37 of 1977. The notice of the said application was served upon the judgment-debtors in the usual way as well as under registered post with acknowledgment due. In spite of the service of notice, the judgment-debtors did not appear and oppose the prayer lor delivery of possession with police help. The learned Subordinate Judge by his order dated Sept. 24, 1977 allowed the Misc. Case and directed execution of the writ of delivery of possession by the Bailiff with police help. November 15, 1977 was fixed by the learned Subordinate Judge for the execution of the writ of delivery of possession. On Nov. 14, 1977, the judgment-debtors filed an affidavit and a petition praying for stay of the execution case. On that very day, the opposite party No. 3, the State of West Bengal filed a caveat in the form of an application under Section 148-A of the C. P. C. as inserted therein by the said amendment Act, inter alia alleging therein that on June 6, 1977 the First Land Acquisition Collector, Calcutta had requisitioned the disputed premises under Section 3 of the Act V of 1947 after the publication and service of notices upon all the parties concerned on that date, and that on the day following, that is, on June 7, 1977, possession of the disputed premises was delivered by the judgment-debtors to the said Land Acquisition Collector, Calcutta. It was prayed by the opposite party No. 3 that it should be given a hearing before the writ of delivery of possession was issued. The prayer of the opposite party No. 3 was opposed by the petitioner. It was contended by the petitioner that the State of West Bengal had no locus standi to lodge a caveat under S, 148-A. Further, it was alleged by the petitioner that no notice of the requisition order was served upon him.

3. The learned Subordinate Judge, by the impugned order No. 64 dated Jan. 3, 1978, came to the finding that the State of West Bengal had locus standi to lodge a caveat under Section 148-A. He assumed that there was service of the notice under Section 3 of Act V of 1947 and held that the order of requisition could not be called in question in any court. Further, he found that the judgment-debtors were no longer in possession of the disputed premises and accordingly, there was no question of executing the writ of delivery of possession against the judgment-debtors. It was held by the learned Subordinate Judge that the decree-holder would get only symbolical possession of the disputed premises and not khas possession. Upon the said findings, the learned Subordinate Judge allowed the application of the State of West Bengal under Section 148-A of the C.P.C. and recalled the writ of delivery of possession. Hence this Rule.

4. Section 148-A is set out below :

'148-A. (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.

(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, acknowledgment 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.'

The term 'caveat' is very common in testamentary proceedings. 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. 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. The provision for lodging a caveat in a testamentary proceeding is contained in Section 284 of the Indian Succession Act. Persons who have some interest in the estate of the deceased are entitled to enter caveats under Section 284. The object of the introduction of the provision for lodging a caveat in the C.P.C. 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. 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 an application. Further, another object behind the provision of Section 148-A is to avoid multiplicity of proceedings. A person, against whom an order is passed on an application in a suit or proceeding to which he is not a party, has to take resort to legal proceedings for the purpose of getting rid of the order. The application referred to in Sub-section (1) of Section 148-A must be a substantive application and the person who may be affected by an order that may be passed on such an application may file the caveat for the purpose of opposing the application. Unlike the Indian Succession Act no form of a caveat has been prescribed by the said amendment Act while it introduced Section 148A in the C. P. C. In the absence of such a form, it may be in the shape of a petition in which the caveator has to specify the nature of the application which is expected to be made or has been made and also his right to appear before the Court on the hearing of such application. Under Sub-section (2) of Section 148A, the caveator has also to serve a notice ol the caveat on the person by whom the application has been, or is expected to be, made under Sub-section (1). It follows, therefore, that in the caveat the name of the person who is expected to file or has filed the application, the nature of the application and the right under which the person lodging the caveat claims to appear before the court have to be stated.

5. In the instant case, it has been noticed that after the court had directed the execution of the writ of delivery of possession with police help the judgment-debtor filed an affidavit and an application praying for stay of the execution on the ground that they had delivered possession of the disputed premises to the Land Acquisition Collector in view of an order passed under Section 3 of Act V of 1947. In the application under Section 148A, the State of West Bengal did not refer to any application in respect of which the caveat was sought to be filed or the person who was expected to file or had filed an application. Prima facie, therefore, such a caveat was not at all maintainable. Further, a caveat may be lodged with a view to opposing an application and not for the purpose of supporting an application that has been filed or is expected to be filed by a party in a suit or proceeding. Obviously the object of the State of West Bengal was to support the application for stay of execution of the writ of delivery of possession filed by the judgment-debtors. The case of the petitioner was that such an application under Section 148A was filed by the State of West Bengal in collusion with the judgment-debtors. It is not necessary for us to decide whether the caveat was filed in collusion with the judgment-debtors or not, but it is apparent that the interest of the judgment-debtors and that of the State of West Bengal were not adverse to each other, but they had a common interest in opposing the execution of the writ of delivery of possession. The caveat, in our view, was, therefore, not maintainable.

6. Even assuming that the State of West Bengal was entitled to lodge a caveat, still, in our view, there has not been a proper adjudication by the learned Subordinate Judge. It has been pointed out above that the learned Subordinate Judge assumed that service of notice of the order of requisition under Section 3 of Act V of 1947 had been effected on the petitioner even though the petitioner had denied such service. It has not been disputed by Mr. Chatter-jee, learned Counsel appearing on behalf of the opposite party No. 3, that if no service of the order under Section 3 of the said Act had been effected on the petitioner, the taking of possession of the disputed premises under the authority of the said order would be wholly illegal. In these circumstances, we are of the view that it was incumbent upon the learned Subordinate Judge to decide whether or not the notice of the order under Section 3 of the said Act was served upon the petitioner. We wonder how the learned Subordinate Judge could proceed on the assumption that there had been service of such notice without making any investigation in that regard. Be that as it may. in view of our finding that the caveat was not maintainable in the circumstances stated above, we set aside the impugned order and make the Rule absolute. The learned Subordinate Judge is directed to proceed with the execution of the writ of delivery of possession.

7. There will be no order for costs.

D.C. Chakravorti, J.

8. I agree.


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